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upon such hearing he determines that the appropriation by the corporation will be an abuse of its corporate power or destructive of the public use to which the land is already devoted, he may dismiss the petition, and, in these respects, there being an adequate remedy at law injunction does not lie on those grounds to prevent a prosecution of proceedings in appropriation.

2. The act passed May 10, 1902, to provide for one steam railroad crossing another steam railroad is made to take effect and be in force from and after its passage, and being original legislation and not an amendment of a statute, section 79, Revised Statutes, does not exempt pending actions or proceedings from its operation, and it is error for the court of common pleas to refuse to entertain a proper application under the act to ascertain and define the mode of such crossing on the ground that proceedings to appropriate the right to cross had been commenced prior to the passage of the act.

(Nos. 8527 and 8660-Decided May 2, 1905.)

ERROR to the Circuit Court of Lucas county.

May 6, 1902, the Toledo Railway & Terminal Company, a railroad corporation building a railroad in the city of Toledo, commenced proceedings in the probate court of Lucas county to appropriate the right to cross with its railway tracks the railway tracks and right of way of the Wheeling & Lake Erie Railroad Company in three places; first, with its main line; second, with one of its spur tracks, both east of the Maumee river; and third, with one of its spur tracks west of the river. The jurisdictional questions were determined in favor of the expropriator and the verdict of the jury assessing compensation and damages was confirmed. Thereupon, on November 24, 1902, the Wheeling & Lake Erie Railroad Company, plaintiff, brought the present suit in the court of common pleas of that county for an injunction to prevent the Toledo Railway & Terminal Company, the defendant, from taking pos

Statement of the Case.

session of the property and from constructing one of said crossings. The petition is too lengthy to be set out and the following summary of it made by plaintiff's counsel is sufficient.

The first cause of action in the petition alleges: That the plaintiff owns and operates about four hundred miles of railroad, and that in the city of Toledo, its northern terminus, it has three yards, one on the west side of the Maumee river known as "Toledo" yard, and two on the east side of that river known respectively as "Homestead" and "Ironville" yards. These two yards are in close proximity to each other, "Ironville" yard lying to the west of "Homestead" yard, and the main track passing through each, thence on west to the "Toledo" yard, where are located plaintiff's passenger and freight depots, and that a large number of trains pass through these yards daily. "Ironville" and "Homestead" yards have each a large number of tracks, which are all necessary to the proper discharge of plaintiff's terminal business, and are used for the storage and distribution of cars coming into the city, to other railroads, industries and shippers, and to collect cars from such other railroads, industries and shippers and making them up into trains for points along the line of its road. In the "Ironville" yard are located the plaintiff's general shops, also, repair tracks and a round house, all of which have connected therewith a large number of tracks which are in constant and necessary use daily.

These yards have been constructed at a great cost, are an integral part of plaintiff's railroad system, the unimpaired use of which is absolutely necessary for the proper discharge of plaintiff's duties as a public carrier, and its increase of business has made

Statement of the Case.

it necessary to increase its facilities, and, prior to the acts defendant complains of, it acquired at great expense a large amount of property to enlarge its "Ironville" yard, and construct additional tracks and round house.

It is further alleged that the defendant has instituted proceedings in the probate court to appropriate the right to cross with its track at grade, the tracks of the plaintiff at a point through the east end of the "Ironville" yard, and that at the preliminary hearing the court found in favor of the plaintiff in said proceeding all questions involved in said preliminary hearing, that the compensation and damages have been assessed by a jury, and that the defendant threatens to, and will, upon affirmance of the verdict, unless restrained, pay the money into the court, and proceed to enter, take possession, and construct, maintain and operate its railroad across the tracks of said "Ironville" yard.

The petition then sets forth:

"That the tracks in said yard are so located and constructed that in order to operate the same, and to sort out cars and make up trains, and in order to take cars to and from said round houses, shops, repair tracks and from its other yards, and for the purpose of taking cars and trains to and from other railroads, industries, docks and shippers in said city, and from the said 'Homestead' yard, it is necessary for the engines, trains and cars operated and handled by the plaintiff to constantly pass and repass over the point where the defendant seeks to and will construct its railroad tracks unless restrained by the order of this court, and that if the defendant is permitted to construct, maintain and operate its said tracks at said point at grade, the plaintiff will be

Statement of the Case.

greatly obstructed, hampered and interfered with in the use of said yards, the operation thereof will be dangerous to life and property, and as a result thereof the said yards, and especially said 'Ironville' and 'Homestead' yards, will be practically destroyed and unfitted for the uses to which they are now devoted.”

The plaintiff further alleges that it is unnecessary to cross said yard at grade, and it is practicable and feasible for the defendant to carry its line of road over the tracks of plaintiff by an overhead crossing, which will not in any way impair its usefulness, nor materially increase the cost of construction, and would not materially interfere with the operation of plaintiff's tracks and yard, and that to induce said defendant to construct said overhead crossing, the plaintiff offered to contribute to the expense thereof the sum of twenty-five thousand dollars.

For a second cause of action the plaintiff averred that it had, on the twenty-seventh day of May, 1902, commenced an action in the court of common pleas of that county against the defendant, and that in its petition in said action further alleged that the defendant, The Toledo Railway & Terminal Company, had located its line of railroad so that the same should cross at grade the line of railroad of this plaintiff at the point or place hereinbefore described and within the limits of said 'Ironville' yard, and that said crossing, if permitted to be constructed, would cross five tracks of the plaintiff, forming an integral part of said yard, and which were in constant and daily use and absolutely necessary in order to use the yard for the purposes to which it was and for a long time theretofore has been devoted; and that such crossing, if permitted, would result in a practical destruction of the uses to which plaintiff

Statement of the Case

has devoted its property at said point, and greatly and materially impair the uses to which plaintiff devoted the balance of its said 'Ironville' yard; would interfere with the plaintiff's use of its 'Homestead' yard and render the operation of its terminal facilities, as well as its main line of railroad at said point, extremely dangerous.

"It was further alleged in said petition that said grade crossing was unnecessary, inasmuch as it was perfectly practicable and reasonable for defendant to cross the tracks of the plaintiff at said point either overhead or undergrade, without interfering with the operation of its line of railroad, and that such manner of crossing would inflict less injury to the plaintiff than the crossing proposed by the defendant.

"It was further alleged in said petition that the plaintiff was unable to agree with said defendant as to the manner in which the said crossing should be constructed.

"Plaintiff prayed in said petition that said court should ascertain and define by its decree the mode of crossing by the defendant which would inflict the least injury upon the plaintiff, and that if in the judgment of the court it was reasonable and practicable to avoid a grade crossing, that the court should prevent by its decree such crossing at grade and issue an injunction restraining the defendant from constructing, maintaining and operating a crossing at grade as proposed by it."

It is further averred that said action is still pending and that no hearing has been had or any order been made therein, and that at said preliminary hearing in the probate court due proof was made of the pendency of said action and of the prayer of the