all the rights of the state of Ohio, and of any and all persons lawfully claiming under or through it, to or in said streets or either of them, or to any easement in or over the same, and also subject to the legal rights of any other person or persons injured thereby.

'Provided further, that the said bridge company shall, at its own expense, cause Butler street to be widened to the width of ninety-nine (99) feet from Pearl street south to the wagon approach to the said bridge; and also the said bridge company shall at any and all times hereafter permit its bridge and approaches to be used for railroad purposes on reasonable and equal terms as to tolls and charges by all railroad companies whose roads terminate in or pass through the city of Cincinnati, desirous so to do; and it is expressly understood, and the grant herein contained is upon the consideration, that the trustees of the Cincinnati Southern Railway any lessee thereof, shall have the right to use said bridge and the approaches thereto, on terms as favorable as those granted any other railroad.

"And provided further, that in no case will the said companies use or permit the said grounds to be used as a stock yard or depot for the shipment, transfer or reception of animals of any kind, or for any other use than for depot buildings and for railway purposes.

“‘And provided further, that said bridge company and railroad companies, or either of them, shall not, in any manner, hinder or prevent the city from going upon the grounds so vacated, and completing, maintaining and preserving the sewers or water ways already constructed or projected, or for carrying out any of its plans for sewers, or discharging any of its obligations for water ways or powers, that are now or many be hereafter fixed or determined from any rights now in exist

ence.

"Provided, that this ordinance shall take effect on the Newport & Cincinnati Bridge Company and the Little Miami Company and its lessees filing with the city clerk a written acceptance hereof.

"Passed December 1st, A. D. 1871.'

"(10) That, immediately thereafter, the Newport & Cincinnati Bridge Company and the Little Miami Railroad Company and its lessees filed with the city clerk of Cincinnati a written acceptance of the said ordinance vacating Eggleston avenue and Kilgour street between Front and Pearl streets, and thereupon the said companies entered into possession of that part of Eggleston avenue lying between Front and Pearl streets in the city of Cincinnati, and have ever since occupied and used the same for railroad, bridge, and depot purposes, the part of said grounds occupied and used by the Little Miami Railroad Company and its lessees and the nature of the occupation and use being described in the next succeeding paragraph.

"(11) Included in the part of Eggleston avev.41N.E.no.4-14

nue between Front and Pearl streets vacated, as aforesaid, by the city of Cincinnati, was the following described real estate, which was formerly a part of the Miami & Erie Canal, the use of which was granted to the city of Cincinnati for a public highway and for sewerage purposes by the act of March 24, 1863, as already set forth:

"Being a tract of land in the city of Cincinnati, in Hamilton county, Ohio, lying within the limits of Eggleston avenue, as established by ordinance No. 321 of the city of Cincinnati, passed April 19, 1864, and between front and Pearl streets in said city, and described as follows: 'Commencing at a point on the southeasterly line of Pearl street, eleven feet northeasterly from the intersection of said line of Pearl street with the southwesterly line of Eggleston avenue; thence northeasterly along said line of Pearl street a distance of seventy-two feet to a point seven feet distant from the intersection of said line of Pearl street with the northeasterly line of Eggleston avenue; thence in a southeasterly direction on a line parallel with and seven feet distant from the northeasterly line of Eggleston avenue, as defined in the ordinance aforesaid, but since vacated, a distance of one hundred and twenty-four and three-fourths feet; thence southwesterly on a line parallel with the southeasterly line of Pearl street a distance of seventy-two feet to a point eleven feet distant from the southwesterly line of Eggleston avenue, as defined in the ordinance aforesaid, but since vacated; thence northwesterly on a line parallel with and eleven feet distant from the southwesterly line of Eggleston avenue, as defined in the ordinance aforesaid, but since vacated, a distance of one hundred and twenty-four and three-fourths feet to the point of beginning; being a strip seventy-two feet wide and one hundred and twenty-four and three-fourths feet long, formerly a part of the Miami & Erie Canal, extending from the southeast side of Pearl street a distance of one hundred and twenty-four and three-fourths feet in the direction of the Ohio river, the use of which was granted by the state of Ohio, by the act of March 24, 1863, to the city of Cincinnati for a public highway and for sewerage purposes, but now occupied by the permanent train shed of the passenger depot of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.' Also, a tract of land in the city of Cincinnati, Hamilton county, Ohio, lying within the limits of Eggleston avenue, as established by Ordinance No. 321, of the city of Cincinnati, passed April 19, 1864, and between Front and Pearl streets in said city, and described as follows: 'Commencing on the northwesterly line of Front street at a point eleven feet northeasterly from the intersection of said line of Front street with the southwesterly line of Eggleston avenue, as defined by the ordinance aforesaid, but now vacated; thence northeasterly along said line a distance of seventy-two feet, to a point

seven feet distant from the intersection of the northwesterly line of Front street with the northeasterly line of Eggleston avenue, as defined by the ordinance aforesaid, but now vacated; thence in a northwesterly direction on a line parallel with and seven feet distant from the northeasterly line of Eggleston avenue, as defined by said ordinance aforesaid, but since vacated, a distance of ninety-four feet; thence in a southwesterly direction on a line parallel with the northwesterly line of Front street a distance of seventy-two feet to a point eleven feet distant from the southwesterly line of Eggleston avenue, as defined by said ordinance, but since vacated; thence in a southeasterly direction on a line parallel with and eleven feet distant from the southwesterly line of Eggleston avenue, as defined by said ordinance, but since vacated, a distance of ninety-four feet to the point of beginning; being a strip of land ninety-four feet long and seventy-two feet wide, formerly a part of the Miami & Erie Canal, extending from the northwesterly line of Front street a distance of ninety-four feet in the direction of Pearl street, the use of which was granted by the state of Ohio, by the act of March 24, 1863, to the city of Cincinnati for a public highway and for sewerage purposes, but now occupied by the permanent freight depot of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.' Upon the land above described (and adjacent land) the Little Miami Railroad Company and its lessee, the Pittsburgh, Cincinnati & St. Louis Railway Company, and the defendant corporation, some years ago constructed, and for a long time have been and now are occupying and using in their railroad business, a permanent stone, brick, and iron passenger depot, and a permanent brick freight depot, each containing railroad tracks. The tract of land first above described, running from the south line of Pearl street a distance of one hundred and twenty-four and three-fourths (124) feet in the direction of the Ohio river, is at present wholly occupied by a part of the permanent train shed of the passenger depot of the defendant company in Cincinnati; the tract of land second above described, running from the north line of Front street a distance of ninety-four (94) feet in the direction of Broadway, is at present wholly occupied by a part of the permanent freight depot of the defendant corporation. As indicated in the ordinance vacating Eggleston avenue, the sewer and raceway theretofore constructed down Eggleston avenue still pass through and under the ground above described, to the Ohio river, and are still used for their original purposes. By reason of such occupation and use of said land for depot purposes, it has become and is impossible to use the same, or any part thereof, as and for a public highway.

"(12) That that part of Eggleston avenue between Front street and the Ohio river, including a part of the Miami & Erie canal, extending from Front street to the Ohio river,

the use of which was granted by the state of Ohio by the act of March 24, 1863, to the city of Cincinnati for a public highway and for sewerage purposes, some years ago was taken possession of, and since then and for a long time, has been and is now occupied wholly by the yard tracks, side tracks and switches of the Pittsburgh, Cincinnati & St. Louis Railway Company and the defendant corporation, and has for a long time been and now is used exclusively by said railroad companies for railroad purposes, the city of Cincinnati having abandoned the use of said street as a public highway, although the large sewer constructed down Eggleston avenue still passes under this abandoned portion to the Ohio river, and, by reason of such use and occupation, it has become and is impossible to use said premises as and for a public highway.

"(13) The plaintiff avers and charges that, subject to the rights, privileges and easements therein, which were granted to the city of Cincinnati by the state under the act of March 24, 1863, excepting, however, such of the rights, privileges, and easements thus granted as, by reason of the facts hereinbefore stated, have since then been released, abandoned, or forfeited by said city, the state of Ohio has been, since the said 24th day of March, 1863, and now is, the owner in fee and entitled to the full use and possession of that part of the Miami & Erie Canal extending from the east side of Broadway in the city of Cincinnati to the Ohio river, including the width thereof, as owned and held by the state on said date.

"(14) Plaintiff further avers and charges that the city of Cincinnati had no power or authority to grant to the Little Miami Railroad Company or its lessees the right to lay and use a railroad track or tracks in Eggleston avenue as aforesaid on canal property, belonging to the state, which the state had permitted the city of Cincinnati to enter upon, improve, and occupy only as a public highway and for sewerage purposes; and that the construction and use of said railroad tracks by the Pittsburgh, Cincinnati & St. Louis Railway Company and the defendant corporation as aforesaid, was and is inconsistent with the use granted to the city of Cincinnati, and in violation of the rights of the state and in contravention of law.

"(15) Plaintiff further avers and charges that the vacation of Eggleston avenue between Front and Pearl streets, as aforesaid, was an abandonment by said city of the same, and of the canal property of the state embraced therein for use as a public highway and that the construction by the Little Miami Railroad Company and its lessee and the defendant of a permanent passenger depot and a permanent freight depot, as aforesaid, on land belonging to the state. already described. was and is an unauthorized and wrongful occupation and use of the property of the state, which was granted to the city of Cincinnati

for use only as a public highway and for sewerage purposes; and that such occupation and use of said canal land by the defendant was and is inconsistent with the use granted the city of Cincinnati, and was and is repugnant to and subversive of the rights of the state and of the public in said land, and in contravention of law.

"(16) Plaintiff further avers and charges that the occupation and use of Eggleston avenue and the canal property of the state within its limits between Front street and the Ohio river, by the yard tracks, side tracks, and switches of the defendant corporation, was and is an abandonment of the same by the city of Cincinnati as a public highway, and was and is inconsistent with the use granted and permitted to the city of Cincinnati, and was and is without authority and in contravention of law, and repugnant to and subversive of the rights of the public and the state in said land.

"(17) The plaintiff further avers and charges that the defendant railway company, in locating, constructing, and operating its railway tracks and switches, as aforesaid, in and along Eggleston avenue and the part of the Miami & Erie Canal embraced therein between Broadway and Pearl streets; and in constructing, occupying and using its permanent passenger depot and permanent freight depot, as aforesaid, on the part of the Miami & Erie canal before described, embraced within the limits of Eggleston avenue between Pearl and Front streets, as originally established; and in locating, constructing and operating its yard tracks, side tracks, and switches as aforesaid, on, across, and over that part of the Miami & Erie Canal embraced within the limits of Eggleston avenue between Front street and the Ohio river, as originally established, is now and has been for some time past, usurping and unlawfully exercising and using rights, privileges, and franchises in contravention of law.

"Prayer: The plaintiff prays the advice of the court in the premises, and that the defendant railroad company be compelled to answer by what warrant it claims to have, use, and enjoy the rights, privileges, and franchises aforesaid; and that it be ousted from exercising the same, and be compelled to remove its tracks and switches from the part of the Miami & Erie Canal embraced within the limits of Eggleston avenue between Broadway and Pearl streets; and be compelled to remove its passenger depot and freight depot and railroad tracks from the part of the Miami & Erie Canal, before described, embraced within the limits of Eggleston avenue between Pearl and Front streets, as originally established; and that it be compelled to remove its side tracks, yard tracks, and switches from that part of the Miami & Erie Canal embraced within the limits of Eggleston avenue between Front street and the Ohio river, as originally established. And the plaintiff further prays that such other re

lief be granted in the premises as to the court may seem just and proper.

"John K. Richards,
"Attorney General.

"Joseph B. Foraker, "David K. Watson,

"Of Counsel."

To this petition the defendant demurred on the grounds: (1) That the court had no jurisdiction of the subject-matter of the action. (2) That the "power of franchise" from the exercise of which defendant was sought to be ousted had been exercised by it, and its corporate predecessor, for more than 20 years next before this action was begun, as shown by the petition. (3) That the petition does not state facts sufficient to constitute a cause of action.

The demurrer was overruled, whereupon the defendant answered as follows:

"For the first defense: (1) The defendant denies the allegations, and each thereof, contained in paragraphs 13, 14, 15, 16, and 17 of the petition, and the defendant denies that the plaintiff, on and prior to the 24th day of March, 1863, or at any time was or is the owner in fee of the real estate, or any part of the real estate, mentioned in the petition; but, on the contrary, says that the plaintiff has not, and never had, any interest or estate therein, except the right to use and occupy a portion thereof for canal purposes; that no compensation was ever paid therefor by the plaintiff, and that no title in any of said real estate was ever conveyed to the plaintiff, or otherwise acquired by it.

"(2) About the year 1833 the Miami & Erie Canal, which had been constructed southwardly to a point at or near Broadway, in the city of Cincinnati, was extended to the Ohio river. But by reason of the great fall, said extension was found to be impracticable. It was used for navigation a short time only, and under great difficulties, and was gradually abandoned, and fell into decay. There were 9 locks of 11 feet fall each between Broadway and the river, making a total fall of 99 feet. For 10 years or more prior to the passage of the act of March 24, 1863, mentioned in the petition, said canal between Broadway and the river had become and was wholly abandoned for purposes of navigation, and was used only for supplying water for milling purposes, and for the discharge and carriage of sewage from certain portions of the city of Cincinnati, largely from slaughterhouses located along the side of the canal and Deer creek, which adjoined the canal. And said act of March 24, 1863, was passed for the purpose of securing an abatement of the public nuisance which had been so created and was existing, and of providing a trunk sewer at the only available site therefor in the eastern part of the city of Cincinnati. And the defendant says that all the reservations and conditions in said grant in favor of the plaintiff have been carefully preserved and fulfilled, that ample provision is

made for the flow of the water of the canal, and for the maintenance of the supply of water for milling purposes. At the time of the passage of the ordinance of the city of Cincinnati of December 1, 1871, mentioned in the petition, the city of Cincinnati had constructed a trunk sewer along the site of the canal from Broadway to the river; but had not filled in over such sewer south of Pearl street, and the top of said sewer lay at a distance about 40 feet below the grade of Pearl street, leaving a gully about 40 feet deep and 70 feet or more in width at the top. There was a wharf and landing at Butler street and immediately west of Butler street, but there was not, and never had been, any landing at or near the mouth of the canal; and that having become the mouth of said trunk sewer, any use of the river at that point for a landing was wholly impracticable.

the public, as well as of said railway and bridge companies, as servants of the public.

"(6) The railway company, on the faith of said ordinance and agreement with the city of Cincinnati, filled up said gully south of Pearl street, and at great expense acquired the real estate between Butler and Kilgour streets and Pearl and Front streets; and in good faith constructed thereon the railroad tracks, train sheds, passenger depot and freight depot, mentioned in the petition, and other terminal facilities at a cost of $400,000, in addition to the cost of the real estate.

"(7) In addition to the expenditures aforesaid, and relying upon their right to occupy and use said premises, the Little Miami Railroad Company and its lessee purchased large quantities of real estate near said depot grounds, and have constructed at a great expense thereon, and connected with said depot buildings, terminal tracks and facilities. If the order asked for in the petition is granted, and the defendant compelled to remove its

nue.

feet west of the line of Eggleston ave

Said Butler street was of sufficient width to furnish proper and commodious access to said bridge; and said ordinance of December 1, 1871, was passed for the purpose of securing and providing highway facilities at that point, where they were needed, in exchange for the gully along the site of Eggleston avenue south of Pearl street, where no highway facilities were required. | The real estate for the widening of Butler street was provided by joint arrangement between the bridge company and the railway company, and at their joint expense, and at great cost, it being then occupied by improvements consisting of factories and other buildings, which it became necessary for the railway and bridge companies to acquire by purchase at heavy expense. And the value of the property at that time, contributed by the railroad and bridge companies to the widening and improvement of Butler street was threefold the value of the premises given to them in exchange.

"(4) Thereupon the railway company and the bridge company, having accepted said ordinance of December 1st, 1871, as alleged in the petition, at their own expense did widen and improve Butler street, as provided in said ordinance, and entered into possession of that portion of Eggleston avenue lying between Pearl street and Front street, and they have ever since continuously used and occupied the same for railroad purposes.

"(5) Said arrangement and agreement with the said railway and bridge companies was one which the city and the companies were authorized by law to make, and was for the great benefit and advantage of the city and

tracks from said premises between Pearl street and Front street, the result to the defendant's possessions and property will be the absolute destruction of the new freight depot and of the tracks and train sheds leading into the passenger depot, located at the corner of Butler and Pearl streets, and thus render the passenger depot practically inaccessible and the entire destruction of its whole terminal plant, and the demolition and ruin of the structures, buildings, and terminal arrangements upon which the defendant has expended such large sums of money. "(8) The defendant owns the real estate abutting the former site of the canal between Pearl street and the river, and the premises sought to be recovered are not needed or desired for highway purposes, and would be wholly useless for such purposes.

"(9) As to that portion of Eggleston avenue between Pearl street and Broadway, the defendant says that the use by it of said portion is simply the maintaining a single track thereon, four feet nine inches in width, from rail to rail, with connecting tracks leading into the property of abutting owners; and that its occupation and use of said portion of said street is only the use provided for by the laws of the state, and such a use of a street as has been repeatedly sanctioned and upheld by the adjudications of this court, and is wholly consistent with the purposes of the said act of March 24, 1863, and the deed made in pursuance thereof.

"(10) The said Pittsburgh, Cincinnati & St. Louis Railway Company built said track under and pursuant to a grant by the city of Cincinnati, in good faith, and relying upon the authority and power conferred by the statutes of the state upon municipal corporations in such matters; and has expended, in the purchase of grounds for its yards and upon its said tracks and its yards at the head of Eggleston avenue, the sum of over