
    Railway Company v. Railroad Company.
    A. railroad corporation, having purchased from another railroad company an undivided interest in the latter’s railroad, under the act of April 7, 1863, in relation to insolvent railroad companies, &c.. — which authorizes such sale under certain conditions, if the same can he made without impairing the usefulness of the road to the vendor company, — whereby a tenancy in common was created between the parties, can not compel partition of the common property either under the statute in relation to partition or in equity.
    
      Appeal. Reserved in the District Court of Franklin County.
    This is an action for the partition of a line (or a section of a line) of railroad, and several parcels of other real estate adjacent to, and used in operating the railroad, situate between the cities of Columbus and Newark, Ohio, a distance of thirty-four miles.
    The case is submitted upon the pleadings and an agreed statement of facts.
    It appears, that in the year 1855, the Central Ohio Railroad Company completed and put in operation a line of single track railroad from Bellaire, on the Ohio river, via Newark to Columbus, Ohio, as under its charter it was duly authorized to do. The portion of that line, between Newark and Columbus, is the subject matter of this proceeding.
    In 1818, the Steubenville and Indiana Railroad Company was chartered for the purpose of constructing and operating a line of railroad from Steubenville, on the Ohio river, via Newark to Columbus, and prior to the year 1858 had completed and put in operation, under its charter, a line of railroad from Steubenville to Newark, about which time, an arrangement was made between the Steubenville and Indiana Railroad Company and the Central Ohio Railroad Company, whereby the former company was permitted to run its trains over the latter’s road between Newark and Columbus. This arrangement was continued until August 31,1861, when an undivided half interest in the line of road, from Newark to Columbus was conveyed by deed, from the Central Ohio Company to the Steubenville and Indiana Company as hereafter stated in the opinion of the court.
    On November 1, 1865, the Central Ohio Railroad Company, being insolvent, was reorganized under the statutes of this state, whereby a new corporation was created, by the name of “The Central Ohio Railroad Company as reorganized” (one of defendants), which succeeded to all the property, rights and franchises of the Central Ohio Railroad Company. And afterwards, to wit, on December 1, 1866, the Central Ohio Railroad Company, as reorganized, leased its railroad, under the statute in such case made and provided, to the Baltimore and Ohio Railroad Company for a period of twenty years, renewable for periods of twenty years indefinitely, whereby the Baltimore and Ohio Railroad Company became possessed and has ever since continued to possess all the rights of property of the said Central Ohio Railroad Company, as reorganized, in said line of railroad between the cities of Bellaire and Columbus.
    In the year 1868, the Steubenville and Indiana Railroad Company entered into an agreement with the Holliday’s Cove Railroad Company, of the state of West Yirginia, and the Pan Handle Railway Company of the state of Pennsylvania, for the consolidation of said companies, under the name of the Pittsburgh, Cincinnati and St. Louis Railway Company (plaintiff), and it is assumed, for the purposes of this case, that, under said agreement and proceedings for consolidation, the plaintiff became a duly incorporated company, and succeeded to all the property, rights and franchises of said Steubenville and Indiana Railroad Company.
    Since the organization of the plaintiff, the subject matter of this action has been in the joint possession and use of the plaintiff, and the Baltimore and Ohio Railroad Company, as lessee of the Central Ohio Railroad Co. as reorganized.
    The following is the agreed statement of facts :
    
      “ The parties attach hereto a copy of the deed made by the Central Ohio Railroad Company, and IT. J. Jewett, receiver, to the Steubenville & Indiana Railroad Company, dated August 31, 1864, and marked Exhibit ‘A.’
    “ Also a copy of the articles of consolidation, under which the plaintiff was organized, and claims to succeed to the property of the Steubenville & Indiana Railroad Company, and marked Exhibit £ B.’
    
      “ And also a copy of the mortgage from the Central Ohio Railroad Company to John W. Garrett and others, trustees, marked Exhibit £ C.’
    
      “ All of said copies are to be used in this case, the same as the originals thereof if offered in testimony.
    
      “ The said parties also agree that disputes and difficulties have arisen in the joint management of the property referred to in the pleadings herein, but which are the subject-matters of a suit now pending in the district court of this county, wherein the Baltimore & Ohio Railroad Company is plaintiff, and the Pittsburgh, Cincinnati & St. Louis Railway Company and others are defendants, and of a suit pending in the circuit court of the United States for the southern district of Ohio, eastern division, wherein the P., C. & St. L. R’y is plaintiff, and the B. & O. R. R. Co. is defendant. The original file papers and record in said cases are here referred to, and may be used on the hearing of this case, so far as necessary and competent.
    “ It is agreed that this case be submitted on the' pleadings, record and journal entries, and the foregoing exhibits and agreed statement of facts. And it is further agreed that the said railroad between Newark and Columbus, Ohio, sought to be divided herein, is in the main a single track railroad between said points.
    “ C. N. Olds, of Counsel for Plaintiff.
    
    “ J. H. Collins, Counsel for Defendants.
    
    “Sept. 20, 1882.”
    
      J. T. BrooJcs, with whom were C. P. Olds and P. P. Pcmney :
    
    Under the statute of Ohio partition may be had of the whole or any part of a railroad. Section 5754, Rev. Stats. This section defines the procedure in cases of partition as follows :
    “ A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, and a pertinent description of the lands, tenements or hereditaments of which partition is demanded, and naming each tenant in c<ommon, coparcener or other interested person, as defendants therein.” No room is left for criticism on the ground that “ a person,” but not.“ a corporation,” may file his petition, for section 4947 of the Revised Statutes, says: “ In the interpretation of part three of this revision, unless the context shows that another sense was • intended, the word ‘person’ includes a private corporation.” Public corporations are subdivisions of the state for municipal purposes. Private corporations are associations of persons united for the purpose of gain, as a railroad company, a bank, an insurance company, &c. Field on Corporations, § 2.
    These different statutes construed together mean precisely as if they read as follows: “Section 5756. A railroad company being a tenant in common or coparcener of any estate in lands, tenements, or hereditaments within the state, may file its petition for partition of the same, &e.”
    The law takes no heed of the unwillingness of one or of several tenants in common, or of the inconvenience or hardship they may suffer, in yielding to partition. The right of a single individual to enjoy undivided possession of his property is paramount to all other considerations.
    Partition has been had of a mill, mill machinery, and water power (Cooper v. Cedar Rapids Water Power Company, 42 Iowa, 398); of a right of water power (Doan v. Metcalf, 46 Iowa, 120), of an interest in minerals where mines have been opened (73 Ills. 405), of ferry property (Sanders v. Robertson, 57 Alabama, 465); of a slave (Miller v. Frazor, 82 N. C. 192).
    The principle upon which partition is allowed, applies to estates which come by descent or purchase, and has the same force in respect to estates held by many persons acting in the capacity of a company or a corporation, as in the case of a single person. But many and strong are the reasons why railroad property should be deemed to be capable of partition. They have their origin in the peculiar nature and uses of such property, and in the peculiar character of its ownership. Not only are the interests of a vast aggregation of people, who are its owners, involved in a railroad, but the public are vitally concerned in its proper administration. Accident or design may have created a tenancy in common between two railroad companies, but public necessity may require that these interests should be divided. The public having granted the franchise to construct and operate a railroad, it is entitled to certain privileges in consideration of the grant, namely: A right to a safe and free use of the railroad on reasonable terms, and a scale of convenience and. accommodation proportioned to the value of the grant.
    The objection that the statute should not apply to a railroad, because a railroad is a highway, and is owned jointly by the company and the public; also, that if a part of a railroad is sold, the franchise respecting it is not exercised as granted, has no force, and is founded on a misconception of the nature of railroad property, and of the franchises which are granted in connection with it. A railroad is not a highway in the ordinary sense of the term. It is not owned by the company and the public jointly. It is a matter of no consequence whether franchises are or are not used and enjoyed to the full extent of which they are granted by the state.
    Railroads have been spoken of as highways, by very able and discriminating judges; but I know of no court, of high or low degree, that has invested railroad property with the incidents of a common highway. Railroads are neither acquired held, used or treated as are highways. •
    A highway cannot be partitioned, because no man or company is a co-tenant or a coparcener in respect to it, nor is he entitled to the possession of it. A railroad may be partitioned, because it may be held by two or more companies as tenants in common; each company may be entitled to the possession of it, and the right of possession is the essential element in the remedy of partition.
    The proper signification of the term “ highway,” as applied to a railroad, has been defined clearly and fairly by the supreme court of Illinois: “ As to the declaration in the Constitution that railways are public highways, they are so, as defined by this court, in 17 Illinois, 541. They are not common highways in the sense of public wagon roads, upon which every one may transact his own business with his own means of conveyance, but only in the sense of being compelled to accept of each and all, and take and carry to the extent of their ability.” T., P. & W. R. R. v. Pence, 68 Ill. 524.
    I do not attach any importance to the point made by counsel, that if partition be allowed in this case, the franchises granted by the state to the respective defendants, the Central Ohio Railroad Company, as reorganized, and the P., C. & St. L. Ry. Co., will not be exercised as the state intended they should be. This objection of counsel assumes two propositions to be true, both of which I deny. First. That the court will not allow partition, if one of the results of partition will be a change of the use to which the property is applied. Second. That the state is interested in having, or has a right to demand, that franchises granted by it shall be exercised precisely as granted.
    We have seen that courts give no heed, in suits of partition, to the wishes of parties defendant, nor to the consequences which result either to the property or to the parties, provided only the case comes within the law. The statute is remorselessly enforced in obedience to the fundamental axiom — every man shall have and control what is his own.
    In maintaining the negative of the proposition, that franchises granted by the State must be considered a unit, and exercised precisely as granted, I must not be understood as claiming that a corporation need not exercise its franchises in the manner fixed by law. I concede that the franchises, which a/re exercised by a corporation, must be exercised exactly as the law provides. But what I claim on this point, is this: There is nothing in the legislation of Ohio, under which the Central Ohio, and the Pittsburgh, Cincinnati & St. Louis Railway Companies derive existence, which makes it the legal or moral duty of either of those companies to construct or operate the whole or any part of a railroad, or to continue to maintain and operate the whole or any part of their respective railroads any longer than they are pleased so to do. Further, that there is nothing in the grant made by the State to either of these companies, which gives any citizen, or any number of citizens, a right to demand that the whole, or any part of the railroad of either of these companies, should be maintained any longer than the owners are pleased so to do. This is saying nothing more than that those who receive franchises from the State are' under no express or implied obligation to make use of them, and the deduction is, that even if the railroad between Newark and Columbus were sold under partition proceedings and should become the property of a stranger, the corporate life of the companies named would not be mortally wounded, nor their franchises materially impaired.
    But the court will observe that the plaintiff aslcs the interposition of the equitable powers of the court in this case. The petition avers in substance that the section of railroad, of which partition is asked, is one of the leading thoroughfares of the country, over which a large number of passengers and a large volume of traffic is constantly passing; that the interests of the public demand that the road should be maintained and developed to a high standard of perfection; that the plaintiff has unavailingly urged the defendant companies to unite with it in some plan for the maintenance and development of the line which will render it safe and efficient for' public necessities ; that the defendants have failed and refused to co-operate with the plaintiff in effecting such results, and that in consequence, the plaintiff has, at its own expense, maintained the property for some time past, and a large amount is due plaintiff from the defendant companies on this account; all of which is admitted by the defendants to be true.
    The court will here see and appreciate the reasons which were heretofore urged, why partition should be allowed of railroads above all other kinds of property. Public welfare combines with the interest of the owner in demanding it. The difference in policy of administration, in volume of business, in cost of construction and maintenance, in geographical position, make it impossible that the harmonious management of railroad property, which is essential to enable it to meet the wants of the public, can be attained when the property is owned by separate or rival organizations. "What one company can afford to do the other cannot help to pay for. What is indispensable to one is not needed by the other. "Whatever is expended on joint property by one instantly becomes in part the property of the other. The scale of expense on which modern railway construction and maintenance are carried on forbids the idea that joint property should be maintained and developed at the expense of one joint owner. The right of the public to have the railroad maintained in the highest state of development, necessary to public convenience and safety, cannot be doubted for a moment.
    
      John K. Cowen and J. H. Oollins, for defendants:
    I. The plaintiff has no such title to this property, as will sustain this action — if it has any. The predecessor of the plaintiff obtained the title which the statute authorized the Central Ohio Railroad Company to convey, and no more. Without the statute, it had no power to convey any title; for ■without such authority a railroad company cannot sell any part of its roadway. The passage of the statute shows that the legislature considered, that without it there was no such .power. See also Ohio v. Sherman, 22 Ohio St. 428; M. & C. R. R. Co. v. Campbell, 23 Ohio St. 168; Coe v. R. R. Co., 10 Ohio St. 378.
    By the provisions of the act of April 7, 1863, under which the sale was made to the plaintiff’s predecessor in title, it was enacted that such a sale might be made only in cases where it would not impair the usefulness of the road to the vendor. This was either a condition precedent or subsequent, or a reservation. If precedent, it was determined as a matter of fact, before the sale, that it would not impair the usefulness of the road to the Central Ohio Railroad Company, and if so determined, the vendee and its successor are estopped from an act which -will impair such usefulness — no matter how remote from the date of the sale, the estoppel applies to all time subsequent to the sale. If subsequent, it is a condition which goes with the title so long as the title continues. If a reservation, that which was reserved is just as valid, and just as sacred, as that which is granted. In any construction of this statute which may be made the plaintiff has no right to do any act which will impair the usefulness of the road to the Central Ohio Railroad Company, or its lessee. And a sale of this end of the road or of the whole road, not only impairs its usefulness but destroys it. But if wo look to the terms of the deed, and the contract in pursuance of which it was made, the same conclusion follows. The statute under which this deed and contract were made, must be taken as a part of the contract between tbe parties in our endeavor to arrive at what the agreement was which the parties made.
    The statute requires that the road must be used in common, and the lease or sale must be an interest in such part of the line of road as is common to both, under their charters, and then the sale can be made only in cases where it will not impair the usefulness of the road to the company owning the same.
    The contract and deed state that all these conditions existed, and that the sale was made for the purpose of having the road used in common, and to avoid the building of another road.
    Eor wise purposes the legislature has withheld from railroad companies the power to sell their property, except in certain specified cases, and within certain limitations, which are carefully guarded ; but if the plaintiffs claim in this case be well founded, the absolute sale of a part or all of the property of a railroad company may be accomplished by means of this statute, by doing indirectly what cannot be done directly.
    Before this partition can be made, this real estate, described in the petition, must be severed from the other joint property of the two companies, and the separate property of each.
    A railroad is an entirety. It consists of real estate and personal property — the latter being tangible and intangible. The cars, engines, machinery, <fee., are tangible property, the franchises intangible. The franchise to construct and operate a railroad is generally regarded as a grant of a part of a sovereign power of the state, partaking of the nature of a public trust; and the cars, engines, &c., are ordinarily personal property ; but taking the road as a whole, it is neither the one nor the other, strictly speaking. It is only when these different classes of property are combined, so as to form a railroad, that they become valuable ; either, without the other, is useless. «
    And it is not only proposed to wreck the Central Ohio Railroad, as indicated, but it is proposed to cut off one end and sell it, and leave the company in possession of the other end, which cannot be done. Railroad Co. v. Lewton, 20 Ohio St. 401.
    It is claimed that section 5754 of the Revised Statutes authorizes this proceeding, and sustains the claim here made for partition.
    The question here made is: Does this section authorize the wrecking of the road, first, by separating the real from the personal property, and second, the partition or sale of the real estate, leaving the parties the joint and several owners of the personal property ?
    But it is said that this section of the statute authorizes a partition in all cases of real property held by tenants in common ; but as already shown, this is not real estate, as now situated, neither is it personal, but it is a combination of both, and useful and valuable only because of such combination. See Peoria & Springfield R. R. Co. v. Thompson, 7 Am. & Eng. Railway Cas. 101; advance sheets 103 Illinois Reports; Hammock v. Farmer’s Loan & Trust Co., 7 Am. & Eng. Railway Cas. 474, 475; Coe v. Railroad Co., 10 Ohio St. 403.
    Second, the property will not be partitioned, because it is a public highway, and because of its peculiar situation. These in their order.
    1. Have the parties here, plaintiff and defendant corporations, the corporate power to make or suffer partition % The plaintiff corporation is seeking to compel the defendant corporation to suffer partition, and the question is with regard to the corporate capacity of each in that regard. As already stated, this is an equitable proceeding for partition, and the powers of the court of equity are sought for the purpose of accomplishing the object sought, but an equitable partition is based on the idea of mutual conveyances, and such is always the decree in such cases. 1 Story Eq. 652.
    The question then is, have the parties the corporate power to make mutual conveyances to each other ? The mere asking of the question would seem to be its sufficient answer. If it required ■ an act of the legislature to authorize the Central Ohio Railroad Company to sell one-half of this part of its road, will it not require an act of the legislature to authorize it to sell the other half ? And if it required an act of the legislature to enable the Steubenville and Indiana Railroad Company to buy one-half of this road, will it not require another act to enable it to sell it ? This also seems to be the theory of our statute, and the want of capacity to make such mutual conveyances is recognized and provided for in some cases. Sections 5772, 5775 and 5776, Rev. Stats.
    2. This property is a public highway, and, therefore, cannot be partitioned. The order here sought is an order of partition, and the property sought to be partitioned is a single track railway, and to partition it is to destroy it as a highway — to divide it either crosswise or lengthwise, in the one case, giving each 16J miles of track, in the. other, giving each a single rail. This may seem absurd, but it is what is asked. If a section of a railroad will not be sold, because such sale will destroy it as a highway, will a section of a railway be divided in this way ? See Railroad Co. v. Lewton, 20 Ohio St. 401.
   MoIlvaine, J.

In the pleadings are found many charges and counter-charges of bad faith and violations of duty in regard to the joint management and use of this railroad, such, no doubt, as would authorize a court of equity to interfere between the parties and control their conduct, to the end that the property might be preserved, the rights of the respective owners enforced and the public welfare secured; but as these charges and counter-charges are all denied, and no proof offered in respect thereto, and especially as it is agreed that the disputes and difficulties which have arisen in the joint management of the property have become the subject of litigation between the parties in other courts, we have considered this case solely with reference to the right of the plaintiff as a co-tenant, to demand partition of the common property ; which indeed is the prime object in prosecuting the action.

The railroad sought to be aparted, as agreed, “is in the main a single track railroad,” and was, originally, the sole property of the Central Ohio Railroad Company. But on the 31st of August, 1861,. an undivided half interest in the property was conveyed to the Steubenville and Indiana Railroad Company, under authority of an act of the general assembly of the state of Ohio entitled, “ An Act to provide for the adjustment of the affairs of insolvent railroad companies, and for their reorganization without a sale of the property thereof,” passed April 7, 1863. This statute provides, that in case judicial proceedings are or may be pending in any of the courts sitting, or which may sit, in said state, for the sale of any railroad, and the same is in the hands of a receiver or receivers appointed by such court; and in case the railroad involved in such judicial proceedings may be used in whole or in part by said company in common with any other railroad company on the same track between the points on the line common to both, and within the limits of termini established by the charters of both companies, it shall be lawful for the company owning the said railroad, if the same can be done without impairing the usefulness thereof to the company owning the same, to lease for a period of years, for an annual rentage, or to sell for a fixed sum to the said railroad company to which the said line of road in whole or in part is common, an undivided interest in the same upon such terms and conditions as may be agreed upon; such lease or sale to be reported to and approved by said court.

The parties and the property being within the statute, a sale of an undivided half interest in the line of road between Newark and Columbus was made, and approved by the court having jurisdiction in the matter, and upon its order a deed of conveyance was executed to the Steubenville and Indiana Railroad Company, thus creating an estate in common between the parties to the transaction, to which common estate the parties to this suit have succeeded under authority of statutory provisions. The common estate thus created, however, is held by the owners for the sole use of maintaining and operating a railroad, as a public highway, without any power in either or both the owners to sell the same or any part thereof.

Of this estate the plaintiff demands partition, and to that end invokes the power of the court under the statute, if the case falls within the statute, and if not, then by virtue of its equitable jurisdiction in partition.

The partition statute provides, “ Tenants in common, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof in the manner hereinafter prescribed.” Sec. 5754, Rev. Stats. It is also provided, that if the court in which an action for partition is pending, shall find that the plaintiff has a legal right to any part of the estate, it shall order partition thereof and appoint three disinterested and judicious freeholders of the vicinity to be commissioners to make the partition. Sec. 5757, R. S. And it is further provided that if the commissioners be of opinion that the estate cannot be divided without manifest injury to the value thereof, they shall return that fact to the court, with a just valuation4 of the estate. Sec. 5762. And further, that if no election be made by any of the parties to take the estate at its appraised value, then the court, at the instance of a party, may order the sale of the estate at public auction. Section 5764.

Independent of the statute, the right of a co-tenant to have partition does not depend upon the fact that a division of the property will not injuriously affect the value thereof; but under the statute, actual partition cannot be made where it appears, in the opinion of the commissioners, that manifest injury would result from such division.

It is claimed on the part of the defendant that under this rule, the property in controversy could not be aparted between the owners. But conceding this to be so, it is claimed, on the other hand, that a case then arises under the statute for the sale of the property.

While it must be admitted that the power of sale extends to all cases in partition under the statute, wherein actual division of the estate would manifestly injure the value thereof; it must also be admitted that the existence of the power to sell in such cases, does not enlarge the right of partition given by the statute to cases which would not be within it, if the power to sell did not exist. Hence, the question arises, is the partition of such railroad within the purview of the statute? In the solution of this question the effects and consequences of a sale may be considered. The general policy of the state has been to withhold from railroad companies the power to sell their roads. True, a general power to mortgage has been given, and as a consequence ■ a sale on foreclosure maybe made. Such consequence must have been contemplated by the legislature; but it does not follow that a partition or sale on proceedings in partition of a railroad, was contemplated when authority was given to create a tenancy in common in such property. On the other hand, as it has been the policy of the state to perpetuate the ownership in severalty of a railroad without power of alienation, it is more reasonable, that, when a tenancy in common in such property was permitted, the intention was a perpetual ownership in common, especially as the power of alienation was withheld from the tenants in common.

Again, as the chief value of such property consists in its use as a public highway, and as it is the interest of the public that each tenant in common should maintain its highway from terminus to terminus, as well over the common right of way as beyond it, we cannot believe, that the legislature contemplated or intended, by permitting such joint ownership and use, to provide thereby a means for the destruction of both or either of the roads, in whole or in part, owned and operated by the parties, by a partition or a sale in partition proceedings, under the statute regulating partitions, passed many years before this species of property had an existence.

Surely this is no ordinary estate in common or coparcenary, either as to the subject matter or manner of holding.

But it is claimed that, independent of the statute, the plaintiff is entitled to have partition in equity, where, ms at common law, the right to demand actual division is acknowledged to be absolute and inseparable from an estate in common, coparcenary or joint tenancy, without regard to the fact whether the division of the estate will prove advantageous or ruinous to the co tenants. The question, however, is still open to inquiry, whether the estate in controversy is within that rule.

It must be recollected, as above stated, that the case, as presented to us, involves no equitable consideration, other than the mere right of co-tenants to have partition of the common property, so that each may hold his own interest in severalty.

The difficulty in the case mainly arises from the fact that the public has an interest in the use to which the property is perpetually devoted, and no one will deny that equity will recognize and protect the public interest, and to that end will consider the state of legislation on the subject.

We concede that a railroad company is a private corporation, invested with private rights, among which is the right to own and operate its railroad. Nevertheless, its duty is to manage and operate its road in the transportation of passengers and freight, for the use and benefit of the general public. To enable it to perform that duty, it is invested with the power of eminent domain, whereby private property may be taken and devoted to the public use. It is also authorized to purchase property necessary and convenient for the construction and maintenance of the highway; and property thus obtained is as much devoted to public use, as that condemned in the exercise of the power of eminent domain. All its powers and duties are prescribed by statutory law. As well its power to dispose of, as to acquire property. Neither of the parties to this suit has power to sell and convey, for any purpose, its interest in the subject matter of the suit. They have no power to make partition between themselves, for this would involve the power to make mutual releases and conveyances. Hence, we come to this question, Will equity compel partition between co-tenants, sui juris, who have no power to partition their common property amicably ? Partition is completed in equity by mutual releases. Will equity decree mutual releases between the parties, where, by law, the power to execute them is withheld from the parties ? We can find no precedent of the kind. In partition between infants, the execution of releases is postponed, by the decree, until the majority of the co-tenants. In Freeman on Co-tenancy and Partition, it is said, “ Rut courts of equity never professed to act directly on the title. Their decrees operated i/n¡personam only. A decree of partition did not purport to invest the parties with titles to their several allotments. The final action of a court of equity in reference to a partition, was based upon the hypothesis that it was just and equitable that a certain allotment should be made between the parties. The court, therefore, directed that the parties should do that which it had determined they ought to do; in other words, that they should make partition between one another, by executing mutual conveyances. Without such conveyances, the legal title to the property remained unaffected. A partition in chancery, like a voluntary partition made by the parties, must be consummated by mutual conveyances. Therefore, no effectual partition can be had in equity against any person not competent to execute a conveyance.” Section 427.

Assuming that in states where power to sell is given in cases of statutory partition, if actual partition would injure the property, a court of equity, in like cases, would follow the analogy of the statute, and modify the form of its remedy, still, the subject matter of its jurisdiction would not be enlarged ; and we understand it to be a fundamental principle in the doctrine of partition, that partition cannot be demanded as a matter of right, either under the statute or in equity, if the co-tenants are excluded from the power to make voluntary partition of the subject matter, from considerations of public policy or by positive law.

This brings us to consider the force and effect of the statute of April 7, 1863, under the authority of which, the tenancy in common now sought to be severed, was established. This statute, when construed in the light of other legislation in pari materia, we think excludes the parties before us from the power of making voluntary partition between themselves by mutual releases, and consequently from the right to compel partition under the statute or in equity.

The section of road now sought to be partitioned, at the date of the passage of this act, was owned and operated by the Central Ohio Railroad Company as a part of its line of road, extending from .Bellaire to Columbus, via Newark. At the same time, the Steubenville and Indiana Railroad Company owned and operated a road from Steubenville to Newark, with power under its charter to extend its line of road to Columbus. The statute authorized the sale of an undivided interest in the road between Newark and Columbus, by the Central Ohio Company to the Steubenville and Indiana Company, “ if the same could be done without impairing the usefulness thereof” to the Central Ohio Company. This condition was unquestionably inserted in the statute upon considerations of public policy. In the deed of conveyance it was recited that the sale did not impair the usefulness of the section to the vendor company. It was not meant, either by the statute or the deed, that the exclusive use of the section was preserved to the Central Company; but that, in the joint use of the section reasonable facilities were and would be afforded the Central Company for conducting its business over this line of the road. In other words, that one half of the capacity of the road was sufficient to supply the necessities of the vendor company. We do not understand that any implication arises that the Central Company should be entitled to the use of the road to the full extent of the requirements of its traffic, however great its volume might become; but we do understand it to be implied that the one half of the capacity of the road was and should be subservient to the uses of the vendor; and that the vendee acquired no right, in any way, to deprive the vendor thereof. It was the use of an undivided road, not the half of the road when divided, that was thus secured to the vendor; and this, not for a time limited at the pleasure of the purchaser, but for all time. This is inferable from the fact that no further power to alienate existed in either party; save such only as might result from the power to create debts.

Our conclusion, therefore, is, that the provisions of this statute, when considered in connection with the fact that power of alienation was withheld from these co-tenants, is inconsistent with the absolute right to demand or compel partition, whereby the usefulness of a part of this section of the road to the successor of the Central Ohio Railroad Company would undeniably be impaired. The legislature did not contemplate or intend that a partition of this property should be made; but, on the other hand, did intend a perpetual joint use of the highway.

Petition dismissed.  