
    RAILROADS — HIGHWAYS.
    [Hamilton Circuit Court.]
    Batavia Turnpike and Miami Bridge Co. v. C. P. & V. R. R. Co.
    Right to Maintain Spur Track Across Turnpike.
    When, after a railroad spur track was constructed, with full knowledge of the railroad company, and maintained across a turnpike for five years, the turnpike company tore up the track, the railroad company will not be enjoined from relaying the track, and the turnpike company, having tacitly acquiesced in laying the track and having an adequate remedy at law, may be enjoined from tearing it up when relaid.
    Appear.
    
      Edward Colston; W. W. Prather and Wm. Hartley Pugh; Thomas Hollister and Walter A. DeCamp, attorneys.
    The defendant laid a spur track across plaintiff’s pike to reach a sand bank. Five years later the turnpike people tore up the track, claiming it was laid without consent or right. In the present suit the turnpike company sought to enjoin the relaying of the track, while the railroad company asked for an injunction against the tearing up of the track alter it was relaid. At the trial below the finding was in lavor of the turnpike company, which was given an injunction.
   Cox, J. (Memorandum of decision.)

Contra view, and grants an injunction to the railroad company. This is done upon the finding that the track was laid with the full knowledge of the turnpike company, and with its tacit if not actual acquiescence; and at this late date, with an adequate remedy at law, an injunction against the maintenance of the track will not lie.  