provided for in the reservation in the first lease, and expressly grants "all such rights as have not been granted to the Wabash, St. Louis & Pacific Railroad, and for all purposes therein stated; it being understood that all tracks and rights of way hereby granted and leased are for the joint use of the parties hereto and the said Wabash, St. Louis & Pacific Railroad Company."

We will next examine these two leases with reference to the four-mile right of way upon which the connecting railway is built. That is a tract of land 60 feet wide, and furnishes access for both roads to the terminal yard and station. The Wabash lease contains an agreement on the part of the station company to obtain a right of way wide enough for four tracks in fee simple, and to lease the same to the Wabash, subject to the reservation herein made, and to build upon said right of way a track or tracks, single or double, as the Wabash Company should desire, from its railroad to the station grounds.

"This right of way is leased with this understanding and reservation: That in case other parties shall desire to use the station grounds, and the station company shall build a track, single or double, for them, on said right of way, or to connect with said tracks for joint and common use of them on said right of way, it shall have the right to do so."

The lease to the complainant's predecessors grants to them jointly one-half of the right of way 60 feet wide, together with the right to use jointly with the Wabash that part crossing certain railroads mentioned. It then contains this provision:

"The said right of way and rights in this clause described shall be used in common; the one-half part by the parties of the second and third parts hereto, and the onehalf part thereof by the said Wabash, St. Louis & Pacific Railroad Company or its successors.

We have referred to the provisions of the two leases, that the claims of the respective parties may be the better understood. The tracks, buildings, etc., have been built

as contemplated by the parties, and two ferry slips are in use; one where shown on the map, and the other is near to it, though it is but partially, if at all, upon the land included in the first lease. Both were constructed by the station company. It also appears that many spur tracks, leading from the tracks upon the 60-foot right of way, called the "connecting road," to manufacturing and other plants along its line on both sides, have been built. There are two

main tracks upon the connecting road, extending from Delray to Seventeenth street. The Pere Marquette claims that the two main tracks and the spurs and sidings built prior to 1894, except one, are owned in common by the two railroad companies, subject to the station company's rights, and that said two companies have a common interest in the right of way of the connecting railway. It also claims the right to the joint use of the slips. The Wabash denies these claims.

We pass by the technical point made over the question of jurisdiction. Had it been made by demurrer, as it might have been, we should hesitate before overruling it; but there is a genuine controversy here, which equity can best settle, and both parties have seen fit to litigate its merits. Moreover, while an injunction has not issued, its necessity is apparent, if complainant's claims are just, and, considering the opinion of the circuit judge, we feel warranted in saying that it would doubtless have been allowed, but for the temporary arrangement to avoid it, which has substantially the same effect. We think that we should not insist on the empty form of an amendment of the bill and the issue of a temporary injunction, or an allegation of threatened obstruction and a prayer for a permanent restraining order. It is apparent that the threatened obstruction is imminent and the latter a necessary relief, if complainant is right in its claim.

We have already said that the rights conveyed to the Wabash Company are not to be directly measured or affected by the subsequent lease to the complainant. Of itself it cannot lessen them. We will therefore discuss

the first lease with a view to ascertaining what rights the Wabash Company has under it, as against both defendants; for the rights of the station company are involved, and it is before the court, being in sympathy with the complainant's claims, and asking that the decree from which its codefendant has appealed be affirmed.

Counsel for the Wabash Company say that there is no ambiguity in the terms of this lease, and that, if it is susceptible of two constructions, the one most favorable to the lessee must prevail. We recognize that as a rule of construction within proper limits, but we think it should not be invoked, where the intention of the parties is determinable from the language used, when examined in the light of surrounding conditions and circumstances.

The Wabash Company was the first to avail itself of the opportunity afforded by the Union Station Company's project. By its lease it secured certain exclusive rights in depots, warehouses, the wharf, etc., and probably in some of the tracks laid upon the land which was unqualifiedly leased to it. On the other hand, it obtained merely a right to use other parts, such as the ground upon which the elevator and elevator tracks, and return tracks were laid; for such land was reserved in clear and unmistakable language. We are of the opinion that there was a clear reservation of the land or space for the ferry tracks, and that from the west end of the easterly 1,000 feet of the wharf, westward to the proposed ferry slip, also the wharf, and for such other tracks as should become necessary for its use, and for the connections of all companies which should acquire from the station company the right to use the depot and station grounds. This was more than a covenant on the part of the Wabash Company to permit other companies to use these things, and more than an attempted reservation by the station company to certain third parties. It was a reservation to the station company itself for its own benefit, through leasing rights to other railroad companies, which its organization con

templated, and the lease plainly indicated its intention to do.

The lease in question required the station company to build certain structures, wharves, etc. Among these was the Grand Trunk ferry slip. That was not specifically mentioned in the reservation, but it was included in the plans agreed upon, and the station company constructed it. In our opinion it was one of the terminal facilities, which, like the wharf and depot, was understood to be for common use. The object of the station company's organization and its patronage by the Wabash and other roads may reasonably be said to have included facilities for Eastern connections and through traffic, east and west; and, as the right reserved to use the tracks to the slip would manifestly be confined to a use consistent with the use of the slip, preventing use for other purposes, it would be valueless, except in connection with the use of the slip. The contention of the Wabash Company that it must alone provide ferries and transport complainant's cars for compensation cannot prevail. There is nothing in the lease making such a limitation, and it might as well be claimed that it should control the approaches in a similar way. That would not be a common use." With the question of inconvenience in the use of the slip we have nothing to do. The parties must, by agreement or otherwise, adjust their use of these facilities in some lawful way. Until they do, they have the rights of tenants in common.

At the time the first lease was made the station company contemplated building a passenger station upon a portion of its property, and it is clear that it expected that its codefendant and complainant's predecessors, as well as other roads, might have access to it over the whole or a portion of the four-mile connecting road which it expected to provide. It afterwards changed the location and built its depot at Third street, but has used the connecting road for access to it, and all trains have entered over it. As in the case of the station ground, the writing contains a

141 Mich.-15.