Statement of the Case.

Washington Burt conveyed the real estate described in the complaint to the complainants and that the complainants are operating a coal mine thereon, and denies every other allegation in the complaint.

For a second defense it alleges that the coal mine of the complainants is what is commonly known as a country bank, or wagon mine, whereby the coal is dumped at the mouth of the mine on a platform, from which it is shoveled into wagons and hauled into the city of Coshocton; that in October, 1916, The Morgan Run Coal & Mining Company made a contract with complainants to purchase the entire output of their mine until the first day of April, 1918, at $1.50 for the run of mine coal delivered on board cars on the mine tracks of the coal and mining company; that at the time said contract was made it was the intention of the coal and mining company to put a siding from their main line at a point where it would be convenient for complainants; that the arrangement proved to be exceedingly inconvenient and about that time coal advanced sharply in price and complainants repudiated their contract and discontinued all work on the tramway leading to the sidetrack; that complainants have no facilities for loading into the railway cars at any point on the tracks of the coal and mining company and have no arrangement with the coal and mining company for the use of that company's tracks; that in order to connect complainants' mines with the track of the railway company it would be necessary to build about two miles of railway track, none of which has been

Statement of the Case.

done; and that when complainants repudiated their said contract, and stopped work on the necessary grading for said tramway, the coal and mining company declined to submit to the further inconvenience of permitting the complainants to use their said tracks for loading purposes.

For a third defense the railway company alleges

that for some time past there has been a great dearth and shortage in the supply of cars and great inconvenience and expense would result in complying with the demands of complainants.

In the reply the complainants allege that the railway company and the coal and mining company are owned by the same persons and have conspired together for the purpose of compelling the complainants to sell their coal to them at the price they would name, and that since the filing of this complaint the railway company has moved the portion of its tracks off the lands purchased from the heirs of Washington Burt in order that it might claim it had no tracks near the mines of the complainants.

On the hearing the commission found that the railway company was operating as a common carrier the entire line of railroad owned by it and the coal and mining company, either or both, extending from the point of connection with the tracks of the Wheeling & Lake Erie Railway Company, at a point east of Coshocton known as Morgan Run, some three miles to the mines of the coal and mining company, and ordered it to furnish service as a common carrier and without discrimination to the complainants, and ordered it to connect and

Opinion, per JOHNSON, J.

operate with the tracks now maintained the track abandoned without the consent of the commission, or provide at a point adjacent to its main track, near the point where the tracks cross the public highway at common grade, a suitable and adequate loading platform in lieu of the facility heretofore maintained adjacent to such abandoned track, or provide some other suitable means for the loading of complainant's coal, and that it move said cars, from time to time, to the junction of the Wheeling & Lake Erie railway.

An application for a rehearing was filed, which was overruled, and this proceeding is brought to reverse the order of the commission.

By leave of court The Morgan Run Coal & Mining Company has been made a party to this error proceeding and has filed its cross-petition in error herein.

Messrs. Booth, Keating, Pomerene & Boulger, for The Morgan Run Coal & Mining Company and The Morgan Run Railway Company.

Mr. W. S. Merrell and Mr. J. B. Shepler, for defendants in error, John and Peter Ingham.

JOHNSON, J. The Morgan Run Railway Company was created and organized under the laws of Ohio in 1889 for the purpose of constructing and operating a steam railroad from Coshocton to Cambridge. Only a little over three miles of road has been constructed and operated. This extends from the junction with the Wheeling & Lake Erie

Opinion, per JOHNSON, J.

railway up the Morgan Run valley to the mines of The Morgan Run Coal & Mining Company. It is contended by the plaintiff in error that the line of railroad from the junction with the Wheeling & Lake Erie to a point on the township line between two townships in Coshocton county is the property of the railroad, and that the tracks extending beyond that line are the property of The Morgan Run Coal & Mining Company. The railroad is one continuous line of road from the Wheeling & Lake Erie junction to its farthest end at the mines of the coal and mining company, with switches and turnouts to the several mines located on the way.

Since 1910, The Morgan Run Railway Company has had on file with the Public Utilities Commission a tariff covering rates from points which are now alleged to be on The Morgan Run Coal & Mining Company's tracks, and has also filed a code of demurrage rules in which the station, "Morgan Run Mine, Ohio," is shown, this point being also beyond the township line. The railway company has conducted its operation along the entire line of road.

The plaintiff in error, being so created, organized and operated, is a common carrier under obligation to serve the public without discrimination, and is amenable to the supervision of the Public Utilities Commission in the conduct of its business as such. State v. Hazelton & Leetonia Ry. Co., 40 Ohio St., 504; Scofield v. L. S. & M. S. Ry. Co., 43 Ohio St., 571; Adena Rd. Co. v. Pub. Serv. Comm., 92 Ohio St., 1, and Hocking Valley Ry. Co. v. Pub. Util. Comm., Id., 9.

Opinion, per JOHNSON, J.

The act creating the Public Utilities Commission, Section 487 et seq., General Code, defines the jurisdiction of the commission and prescribes the method of its exercise.

It is clear that the order of the commission, in so far as it affects the operation of the line owned and operated by the railway company, must be affirmed. The company has no right to make any of the discriminations complained of.

It is conceded that the controlling interest in the railway company and the coal company was owned by substantially the same persons, although in different proportions, and that the same person was president of both companies.

Some years ago the heirs of Washington Burt, deceased, sold to the railway company a 33-foot strip across a tract of land owned by them along the line on which the railway company was extending its tracks. The deed to the railway company for this strip contained the terms of an agreement by the company to construct and operate across the same a railroad with main track and necessary sidetracks, switches, turnouts, etc., and to secure to the grantors, their heirs and assigns, or anyone holding under them, equal facilities with all other shippers for receiving and shipping freight. It provided that the grantors, their heirs and assigns, should have the right to build a railroad track or switch from the premises so conveyed to the premises now owned by them, and specifically set forth provisions for the furnishing of shipping facilities in connection therewith.