
    LICENSE FOR THE USE OF RAILROAD TRACK.
    [Common Pleas Court of Montgomery County.]
    The Dayton & Union R. R. Co. v. The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co.
    
    Decided, May 5, 1900.
    
      Railways — Contract Between Companies for Permanent Use of Fifteen Miles of Track — Does This Include Use of New Industrial Tracks— And Other Tracks Subsequently Built — Roads Not Parallel Except for the Fifteen Miles — Contract Not a Lease, Because Not Executed According to Law — Nor an Easement for the Same Reason — But Was a License — Made Transferable by Acquiesence by the Transferee in Its Terms for Many Years — Construction of Contract by Predecessors and by Assigns — Mere Agreement to Arbitrate Does Not Oust a Court of Jurisdiction. ■
    
    The D. & U. and the D. & W. ran parallel for fifteen miles, and entered into a contract whereby it was agreed that for a stipulated annual rental the former should have the permanent use of the latter’s track and sidings within this fifteen-mile stretch, and should take up and dispose of its own superstructure. Did this contract include the free use of the fourteen industrial tracks and other side-tracks subsequently built by the D. & W. for other purposes than the passing of trains? Held:
    
    1. While this contract, owing to defects in its execution, is not a lease, it is an easement in its provisions, though not in execution, and under the nomenclature of the common law may be termed a license — a license which has been adopted by the successors and assigns of the D. & W., and its obligations assumed and its benefits accepted for many years, and has therefore been in effect renewed by the present plaintiff and defendant.
    2. The contract was not ultra vires on the theory that, under the law of 1852, railroads were only authorized to form end to end connections for the purpose of forming a continuous line, inasmuch as the local business within the fifteen-mile stretch was insignificant, and the roads beyond the junction were not competitors, and there were advantages to the public as well as to the companies arising from the arrangement which was made; and for the same reasons it was not contrary to public policy.
    3. As to the practical construction placed upon the contract by the parties thereto, the present defendant is not bound by the construction of its predecessor.
    4. The principle that a mere agreement to arbitrate does not preclude resort to a court of justice, and the jurisdiction of the court is not ousted where efforts to arbitrate did not go far enough to be effective, if they were ever binding on either party.
    5. The contract seems to have been a good business arrangement for both parties, with manifestly no intention on the part of either to abandon the rights or profits which would inevitably follow from the growth and changed conditions of abutting territory and patronage, and contemplated that not only the side-tracks then in existence, but those thereafter constructed, should be for the free use of both parties, subject to the regulations of the contract as to the movement of trains.
    
      
       Affirmed by the Supreme Court, without report (67 O. S., 523).
    
   Dustin, J.

This action was brought to obtain the courts construction of a contract entered into by and between the Dayton & Union and the Dayton & Western railroad companies, January 14, 1863, whereby the plaintiff was granted the permanent use of the track of the Dayton & Western from Dodson Station, then called “The Junction,” to the west bank of the Miami river.

The contract is said to have been drawn by the late Samuel J. Tilden, famous in law and politics, contains twenty-four articles, and under it the parties, their successors and assigns, have operated for thirty-seven years, with now and then a protest on the part of the defendant against the construction placed upon it by the plaintiff.

At the time the contract was entered into the Civil War was in progress. Iron and steel were at a high figure, and the plaintiff had emerged from foreclosure and reorganization proceedings. Between The Junction and Dayton the tracks of the two roads ran parallel, each on its own right of way, and so close that the passing engineers, with outstretched arms, could touch hands.

The situation of the parties and the purpose of the agreement axe thus set forth in the preamble, the Dayton & Western being the party of the first part and the Dayton & Union the party of the second part.

“Whereas, Each of the said companies has a separate railway track, running side by side, from the west side of the Great Miami river, at Dayton, in said state, for about fifteen miles to a point and station generally called The Junction; and whereas, by proper comity, the business of both companies can be conveniently dispatched upon a single track, common to both, and it is for the mutual interest and advantage of said companies so to arrange and carry it on; and
“Whereas, The said party of the second part has an opportunity to dispose of its superstructure between Dayton and The Junction; and
“Whereas, Such disposition involves the necessity on the part of said party of the second part to first acquire from the said party of the first part the permanent right, without unreasonable delay or hindrance, to enter upon its railway track from time to time, and at all times, at either of said points, and use said railway between said points with the locomotives, cars and trains qf the said party of the second part; and
“Whereas, The said party of the first part is willing to make such permanent -grant to the said party of the second part;
“Now, Therefore, To carry out this arrangement, and to perfect and make the same permanently binding and obligatory between the said contracting parties, and to grant and assure to the said party of the second part the permanent right and free use of the said railway track, and the side-tracks thereof, between said points, the following articles are hereby made a matter of compact between the said companies.”

A purpose not expressed in the agreement is conceded to have been to enable the plaintiff to sell its rails at the high figure then prevailing and thereby obtain a large amount of working capital.

The first and second articles of the agreement are also important as bearing upon the intention of the parties, and are as follows:

“First. For the consideration hereinafter stated, the said party of the first part hereby grants and assures to the said party of the second part, the permanent right to enter upon the main track of the party of the first part, without delay or hindrance, by properly-constructed switches at The Junction, and near the west end of the bridge over the Great Miami river, and with all the trains of the said party of the second part required in the prosecution of its business, to occupy and use, between said points, the main railway tracks and side-tracks of the said party of the first part, and in such manner as will fully allow to the party of the second part all reasonable means and facilities for the prompt and convenient dispatch of its business.
"Second. While it is the intention of the said contracting parties to make the main track and side-tracks of the party of the first part, between the said points, common to the use of both companies, as aforesaid, it is hereby distinctly stipulated that the free use thereof by the said party of the second part shall be at all times subordinate to the necessary use thereof by the said party of the first part, except as hereinafter qualified.”

Also the twenty-second article, which reads as follows:

"Twenty-second. This agreement, and nothing herein contained, shall be construed into an abandonment of the right-of-way, as now used by the party of the second part, from The Junction to Dayton; but should the said party of the second part, at any time hereafter, cease to occupy the roadway of the party of the first part, the said right of way may be resumed by the party of the second part as now used or occupied.”

At the time of the execution of the contract, the only side-tracks on the Dayton & Western between The Junction and Dayton were ia spur-track at Higgins’ Station, now known as Trotwood, a spurtrack at Brookville, a side-track at Dodsons, and a side-track into a gravel pit about two miles east of Dayton.

With the growth of business additional side-tracks have been constructed, and fourteen so-called "industrial side-tracks” have been laid to connect with manufacturing establishments constructed along the line of the road in West Dayton. Of these industrial tracks seven have been constructed on the old right of way of the Dayton & Union.

The questions in dispute are—

1st. Whether, under the contract, the Dayton & Union has the right to the free use of the industrial side-tracks for the purpose of receiving and delivering freight.

2d. Whether it has the right to permit the trains of other roads, with which if is connected, to pass over the common main track, without permission from or compensation to the defendant.

No dispute has arisen as to the use of the new side-tracks constructed for the passage of trains.

The plaintiff contends for the affirmative of the questions above stated:

1st. On the ground that the language of the contract itself sustains that view.

2d. Because the situation of the parties at the time was such as to make this construction necessary and essential to the due carrying out of the same.

3d. Because such has been the practical construction of the parties thereto for many years; and

4th. Because the contrary construction would be unconscionable, and would place the plaintiff practically at the mercy of the defendant.

It is further claimed that defendant refuses to arbitrate as the contract provided.

The contentions of the defendant are as follows:

1st. That the contract itself is invalid—

(a). Because not executed according to law.

(Z>) Because it is ultra vires.

(c). Because against public policy.

2d. That if valid, it in terms includes only the permanent use to plaintiff of the main track between the points named, and the side-tracks then in existence, or which might thereafter be constructed for the passage of trains.

3d. That the articles of the contract, other than those referring to the use of tracks and side-tracks, indicate that local business was not included in the compensation of $8,000 per year.

4th. It is claimed that the position of defendant is proven negatively by the fact that no allusion is made to future sidetracks, except at Brookville and Higgins Station, though it must have been contemplated that industrial and other tracks would inevitably be constructed, and that the maxim "Expressio unius esi exclusio alterius'” applies.

5th. That the point made by plaintiff of the practical construction placed upon the contract by the parties thereto, does not apply—

(a) . Because it was not made by the original parties thereto, but by assigns.

(b) . Because made under protest.

(c) . Because the contract was void ab initio, and not merely voidable.

6th. That the present defendant does not stand in the shoes of the Dayton & Union.

And as to the claim that defendant refuses to arbitrate, it is claimed that such a provision is not binding, because it deprives the court of jurisdiction; and further, that it did offer to arbitrate, but the plaintiff refused. The plaintiff in its petition, and the defendant in its answer and cross-petition, ask for 'an injunction, the former to prevent interference with its use of the sidetracks, defendant having threatened to lock the switches, and the latter to prevent plaintiff’s intrusion on said side-tracks.

Before entering upon the merits of the agreement, it should be stated further that the plaintiff, November 13, 1868, entered into a contract with the Little Miami and Columbus & Xenia railroad companies, reciting that the Dayton & Western Railroad Company had leased its road to those companies and had assigned and transferred to those companies the articles of agreement of January 14, 1863, and stipulating that the Dyton & Union Company should pay said lessees the sum of $2,000 per annum for the use of the Great Miami river bridge and the tracks from the depot grounds to the Dayton & Union Company at Dayton to the junction thereof with the other track near the west end of said bridge over the Great Miami river, as provided in the fifteenth article of said agreement of January 14, 1863.

Said fifteenth article is as follows:

“Fifteenth. It is further agreed that if the party of the second part shall, at any time hereafter, find it for its interest to make any other arrangement than that which the said company now have with the Cincinnati, Hamilton & Dayton Railroad Company, for crossing the bridges over the Great Miami river, and depot privileges, and shall desire to make use of the track, bridge and depot grounds of the party of the first part, the party of the second part shall have the privilege of so doing, the compensation therefor to be agreed upon hereafter. If the parties hereto can not agree as to the amount of such compensation, then it shall be left to three disinterested persons to fiz the same.”

December 1, 1869, the Pittsburgh, 'Cincinnati & St. Louis Railway, by assignment of the Little Miami and The Columbus & Xenia Railway, acquired the right to control the Dayton & Western as lessee, and January 2, 1877, made a contract with plaintiff, one provision of the same being that whereas said the Dayton & Western Railroad Company, on the 14th of January, 1863, entered into a contract with the Dayton & Union Railroad Company, whereby the Dayton & Union Railroad Company, in consideration of $8,000 per year, became entitled to operate its trains over the tracks of said “the Dayton & Western Railroad Company, and other rights and privileges fully set forth in said contract, etc. (referring to the bridge contract and the increase of compensation in case the gross receipts of the Dayton & Union should exceed $100,000 per annum), and whereas, a controversy has arisen as to the amount of such excess, the parties agreed that the suit, which had been commenced and was then pending, should be dismissed, and the Dayton & Union Railroad Company should pay $10,000 cash in hand in full settlement of all claims of said the Pittsburgh, Cincinnati & St. Louis Railway under and by virtue of said Section 23, and that thereafter the twenty-third section of the contract of January 14, 1863, should be treated as inoperative and suspended, and that the whole compensation thereafter should be $10,000 per annum, and that all other portions of said contract of January 14, 1863, were to remain unchanged and in full force, and under the terms thereof the rights of each pary to be fully preserved.”

Article 23d of the contract of January 14, 1863, above referred to and superseded by the agreement of January 2, 1877, reads as follows:

“Whenever the gross receipts of the Dayton & Union Railroad shall exceed the sum of one hundred thousand dollars per annum, the compensation to be paid by the party of the second part to the party of the first part for the use of said track and privileges, as hereinbefore provided, shall be increased at the rate of ten per cent, on all such excess over such one hundred thousand dollars.”

Defendant is the legal successor of the P'ttsburgh, Cincinnati & St. Louis Railway.

Coming now to a consideration of the questions in their logical order, let us determine:

First. What the contract was and is — whether a lease, an easement, or a license.

sCounsel for plaintiff does not attempt to define it, except to call it a contract for the permanent use by the plaintiff of the main track and side-tracks of the defendant between the points named.

But counsel for defendant considers it necessary to give a name to the instrument, in order that appropriate rules of construction may be applied to it

He declares first that it is not a lease, because not executed and acknowledged according to the statutes on the subject, and because it does not give the Dayton & Union exclusive possession of the tracks named, citing various authorities on the latter proposition.

Without reviewing these authorities, it may be briefly stated that the court concurs with counsel that the instrument is not, according to the strict definition, a lease, and was not executed and acknowledged as such.

Is it an easement ? In terms and provisions, Yes. In execution, No. An easement at that date was required to be under seal and acknowledged and witnessed.

What, then, is it?

We concur with the view of counsel that it is a license, if we must use the nomenclature of the common law, instead of the name and description given to it by the statute to be hereafter quoted.

It is argued, therefore, by counsel for defendant that it' is nontransferable and therefore not binding on defendant. And that would be true were it not for the fact that the defendant has, with the knowledge and acquiescence of plaintiff, adopted and assumed its obligations and accepted its benefits, so that the license has been, in effect, renewed by the present plaintiff and defendant.

The next contention of the defendant is that the contract is ultra vires:

(a). Because the roads do not connect within the meaning of Section 24 of the act'of May 1, 1852 (Swan’s R. S., 205); and

(5). Because not consistent with nor calculated to promote the objects for which they were created.

The act of May 1, 1852, was an act to provide for the creation and regulation of incorporated companies in the state of Ohio, and the twenty-fourth section of said act reads as follows:

“Section 24. Any railroad company heretofore or hereafter incorporated, may, at any time, by means of the subscription to the capital of any other company, or otherwise, aid such company in the construction of its railroad, for the purpose of forming a connection of said last mentioned road with the road owned by the company furnishing said aid; or any railroad company organized in pursuance of law, may lease or purchase any part or all of any railroad constructed by any other company, if said companies’ lines of said road are continuous or connected as aforesaid, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroads whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for which they were created; provided, that no such aid shall be furnished, nor any purchase, lease or arrangement perfected, until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place, and in such manner as they shall designate, and the holders of at least two-thirds of the stock of such company represented at such meeting, in person or by proxy, and voting thereat, shall have assented thereto.”

It is contended that the connection meant by the statute is end to end, so as to form a continuous line; not a union of two lines running to the same point, but to opposite points, the design and purpose of the Legislature being to provide for the convenience of travelers and to expedite the transportation of goods, neither of which purposes is accomplished by the arrangement in question, but rather retarded.

Hence, while the arrangement is for the common benefit of the roads, it does not promote the object for which they were created, which was not only their own 'but the public benefit.

As to whether there is such physical connection of the roads as will authorize contracts pursuant to the act referred to, we have no Ohio decisions to aid us.

In Chapman & Harkness v. The P. & L. E. R. R., 6 O. S., 119, Judge Brinkerhoff suggested the quaere:

“Whether the construction by one railroad company of another road entirely parallel with its own] which, if owned and managed by an interest distinct from itself, must necessarily be a competing road, for the purpose and with the effect to bring about a change in a ’part of its own line, rather than to create a feeder, or an extension of its own line, is within the limits of such ‘connections’ as were contemplated by the General Assembly in this enactment ?”

The facts in that case, as can be seen from the quaere, just stated, are not on all fours with the case at bar, but the quaere would also apply to the case before us.

In The State v. Vanderbilt, 37 O. S., 590, in construing Section 3379, as to the consolidation of railway companies, the court held that:

“The lines of railroad companies, which are in their general features parallel and -competing, can not be connected for the carriage of freight and passengers over both ‘continuously/ within the meaning of Revised Statutes, Section 3379, and hence such companies can not become consolidated into one coloration under that section.”

While this holding is upon a different section of the statute from the one involved in the case at bar, which does not in terms prohibit competing roads from combining, it is confidently cited as indicating the policy of the state. If so, and I think it is, it was inaugurated and announced long after the contract was made, in Section 3300 (a modification of Section 24 of the act of 1852, heretofore quoted) and in the case just cited.

The roads of the Dayton & Union and Dayton & Western were parallel for a short distance, and then diverged, one to the west and the other to the northwest, terminating at different cities. Reversing this view, they approached each other from different, though not opposite directions, and for economic reasons merged the business in one road for fifteen miles in entering the eastern terminal.

The physical connection was natural and easy enough, but were they such competing roads as would, following the supposed policy of the state, exclude them from the privileges of the statute in question, in making the_contract now in dispute?

It is true that for fifteen miles they were parallel and competing, but the distance is so short and the local business so insignificant it seems “straining at a gnat” to say that the roads can not make a trackage arrangement that will not only be convenient for the companies, but manifestly more convenient and safer for the public and the local patrons.

The passenger rate is limited by law, so that travelers can not be imposed upon by the combination in the matter of fare, nor be benefited by competition beyond the limit of a few cents, and the freight rate to local points between Dayton and Dodson would be almost too insignificant to talk about; whereas the convenience of receiving and shipping freight by a singel track would more than overbalance any advantages in competition, and be a constant saving to shippers in switching charges from one track to the other. Furthermore, as to all points beyond Dodson and Dayton, the roads continue to be competitors.

In thus speaking of the insignificance of the local business between Dodson and Dayton, I am not forgetful of the fact that a suit was brought by the Dayton & Western against the plaintiff,' under article 23 of the contract for a percentage on an annual business of $100,000 or more, but that suit was settled by an agreement, which did not admit such aD amount, and if it had, the great bulk of it would manifestly be a proportionate part of through business, concerning which I have said the roads have been and are competitors.

It may be said that if Dodson, instead of being a mere hamlet (as the court well knows) were a great city, this argument would not apply, and under the present conditions ought not to apply, the principle being the same whether the traffic be much or little.

The answer to that, it seems to me, is, that this is a court of equity, not governed by the universality of legal rules, but is permitted to depart from them in order to do justice in special eases.

But, it is contended further, that this contract is invalid because against public policy, and pretty much the same arguments are used as to the foregoing proposition as to competing lines.

Article 18 of the contract is cited as tending to show that the purpose of the contract was to stifle competition. The last sentence of that article indicates its general character, and reads as follows:

“For passenger and freight business coming from said Richmond & Covington Railroad, at New Paris or Greenville, or points on the line of said road between New Paris and Greenville, the rates and fares shall be made the same to and from Dayton to both New Paris and Greenville.”

Shortly after the execution of the contract the Richmond & Covington Railroad became a part of the defendant system, and has remained so ever since, so that Article 18 has no applicability to the present situation. It did tend to stifle competition as to business not involved in the fifteen-mile division, and may be and perhaps ought to be held void on that account. But it was a side issue not necessarily involved in fact or in spirit with the remainder of the contract. It may be eliminated entirely.

Coming now to- a consideration of the terms of the contract, it may be -observed that there is no specific limitation thereof to the main track and side-tracks then in use, nor, on the other hand, are side-tracks thereafter to be constructed specifically included.

The intention, therefore, -of the parties must be gathered from the context, and an attempt made to harmonize, if possible, all the articles of the- contract.

Plaintiff contends that the fact that the contract was for the “permanent use” of the- track and side-tracks, the word “permanent” being iterated and reiterated in the statement of the purposes and in the detailed provisions of the instrument indicate that the inevitable growth -of business, and the addition of side-tracks of all sorts must have been contemplated.

The ¡phraseology used in several of the articles is cited.

Article 1, for instance, provides for the occupation by the Dayton & Union of “the main, railway tracks and side-tracks” of the Dayton & Western “with all the trains of said party of the second part required in the prosecution of its business,” and “in such manner as will fully allow to the party of the second part all reasonable means and facilities for the prompt and convenient dispatch of its business.”

Article 2 says: “The main tracks and side-tracks” are to be “common to the use of both companies.”

Article 3 provides for necessary side-tracks “at Higgins Station and at Brookville for the convenient passing of trains and dispatch of business at those points and to keep the same in good repair, and also the main track, culverts, crossings, bridges, etc., between the west side of the Miami river and The- Junction, and in addition to the side-track for the purpose of passing trains at Brook-ville there shaH'be additional siding and track for the accommodation of freight.”

Article 12, speaking of the manner in which the tracks may be used, uses the language, “interfering as little as possible with the independent action of either company in the management of its own business.”

Referring to these expressions, the argument is that “side-tracks” mean all side-tracks, whether so-called “industrial side-tracks,” spurs, or side-tracks for the passage of trains; because all these •are as necessary to the plaintiff as to the defendant for the transaction -of. its business. Seven of these side-tracks have been constructed on or across the right of way of plaintiff, which has never been surrendered to the defendant, nor its use by defendant for side-tracks provided for, except as the same may be inferred from the rights and privileges granted by the contract.

By what authority has the defendant constructed industrial tracks and spurs -on the right of way of plaintiff, except upon the theory that the same were to be used by both in common, and were necessary for the transaction of their business.

Right here, the taunt is made by the defendant that the plaintiff can not, under the contract, require the defendant to construct any industrial side-tracks, however necessary it may seem to plaintiff, •or in fact be; that their construction is left entirely to the judgment and disposition of (defendant.

Of this proposition I am not so sure, although the question is not before the court, and it is not necessary to decide it.

But, in answer to these various indications -that the plaintiff was to have the free use of all the new facilities for the transaction •of business, defendant insists the compensation was to be for through -business only, as is evidenced by Article 24, which provides that:

“The superintendents of the companies here contracting shall •agree upon some convenient and equitable mode of doing the local freight business between Dayton and The Junction, and equitably dividing the receipts for the same.”

'Considering this article, it is argued very plausibly and I may say, incontrovertibly, that the local business between Dayton and The Junction was not provided for in the -annual compensation to be paid by the Dayton & Union; but it does not follow from that that the through business to and from the manufacturing establishments along the line is not included in the general compensation, and that provision is made for the increase of it in the twenty-third article. The small local freight traffic between these establishments and points between Dayton and The Junction would have to be arranged for by the superintendent from time to time, but all other freight, including freight that comes or goes to or from points between to points beyond Dayton and The Junction, is arranged for by the $8,000 compensation and Article 23.

Another claim of defendant is, that future side-tracks were provided for at Brookville and Higgins Station, and obedient to the maxim, “Expressio uiiius est exclusio alterius” all other provisions for side-tracks are intentionally excluded. Admitting the force of the maxim, the most that can be claimed for its application is, that the Dayton & Union can not require and compel the construction of side-tracks at other points. As heretofore suggested, that question is not raised and that claim is not made — -the claim being that side-tracks when elsewhere constructed are for the common use and benefit of both parties to the contract.

It is further contended by defendant that the eleventh article throws light on the intentions of the parties. Said article reads as follows:

“Eleventh. Should it be necessary for the party of the second part, in removing the superstructure of its track from Dayton to The Junction, to use the track of party of the first part, from time to time, it may do so free of charge.”

It is claimed that this article, under the construction contended for by the plaintiff, would not have been necessary, for, if that construction be correct, the Dayton & Union would have the right to go upon the track of the Dayton & Western for all purposes. That the necessary implication from the eleventh article is that the right to use the main track and side-tracks of the Dayton & Western was for specific purposes to the exclusion of all others, and it therefore, became necessary to provide that the Dayton & Union in removing its superstructure might use the track free of charge.

The court’s view as to the necessity of Article 11 is this: The remainder of the contract provides for the use by the Dayton & Union of the main track and side-tracks of the Dayton & Western for the conduct of its “business.” The removal of its abandoned superstructure was no part of its business as a common carrier, and hence not included in the other articles of the contract. Such removal would be slow and an unusual occupation of and hindrance to the use of the Dayton & Western tracks, and hence required a special permit.

But, finally, taking the whole contract together, what is the spirit and purpose of it?

To the court it seems clear that it was a stroke of economy, a good business arrangement for both parties, with no intention upon the part of either to abandon the rights or profits that would inevitably follow from growth and changed conditions, of abutting territory and patronage; and that not only the main tracks and all side-tracks then in existence, but those thereafter constructed are for-the common and free use of both parties, subject to the regulations of the contract as to movement of trains. Upon the faith of that arrangement the plaintiff took up its tracks, and upon the bringing of this action proceeded to act upon this construction, with only an occasional protest from defendant. I think that both roadte should be allowed to grow and flourish together, as they have been for thirty-seven years, without let or hindrance, and work out their salvation without fear and trembling.

As to the point that the Dayton & Union has no authority to let out its right to other railways, for detouring purposes, I have this to say: I think the distinction drawn by counsel for defendant, though wholly technical, is legally sound. The Dayton & Union as a common carrier has the right, with its own engine and crew and under its own management, to take a detouring train of another road over the track in question. But to allow said train under foreign management, and propelled by a foreign locomotive, to pass over the track is virtually sub-letting, which the contract does not permit. Of course the practical effect, the wear and tear upon the road, would be the same, but it would not be by the party having the right. And the Dayton & Western by thus insisting on its rights, though purely technical, may gain a practical benefit in discouraging, and to a large extent preventing, the frequent use of its track by detouring trains, thus saving the road-bed from use by cars and locomotives which might be heavier than those commonly in use.

It is sa.id that the Dayton & Union may adopt and hire the crew and motive power of the detouring train and thus place it technically and really under its control. But it does not appear that that has been, or will be done, and we must pass on the case as presented.

Nevin, Nevin & Galbfus, for plaintiff.

Charles Darlington, for defendant.

On reviewing the foregoing opinion, certain points suggested by counsel seem not to have been discussed.

As to efforts made to arbitrate, they did not go far enough to be effective, if indeed they could have been binding on-either party, for “a mere agreement to arbitrate does not preclude a resort to a court of justice.” The jurisdiction of the court can not be so ousted.

As to the force of the alleged practical construction placed upon the contract by the parties thereto, it does not appear that the questions here-made, arose during the control of the Dayton & Western. The industrial tracks have been since constructed, and the detouring complained of has also occurred since.

The successors and assigns of the Dayton & Western are not bound by the construction of their predecessor, and the present defendant, the latest successor, has from time to time protested. So I think but little, if any, value can be attached to that point.

The finding will therefore be in favor of the plaintiff as to the use of the industrial and other tracks of defendant, and in favor of defendant as to the use of its track for detouring trains.  