lic use in 1818, and as they are at the pres- made land contiguous thereto was impressed ent time, together with the method and man- with the same trust with which the slips ner of change thereof during the intervening themselves were impressed. The relator years. Water street at the time of the dedi- therefore does not challenge the authority cation was the northermost east and west of the city to grant the railroad company street, and its north line was in great part the right to the use of Railroad street as coterminous with the shore line of Sandusky such, but only the right to occupy with its Bay. The north and south streets terminat-track these public slips, which, under the ed at Water street. North of some of them, and also north of the north line of Water street, were plots of ground designated as "open and public slips."

The certificate of the original proprietors filed with the plat of the city of Sandusky, as therein denominated, referred to the open spaces north of Water street and opposite the northern terminus of each of the north and south streets as follows:

"The open and public slips to the water from Water street are as follows, viz.: On Columbus avenue, 10 rods in width, on Wayne and Jackson streets, 9 rods, and on all the other streets 8 rods in width, and so to remain forever."

These "open and public slips" referred to are conceded to have been land extending to the waters of Sandusky Bay. In 1848, by proceeding in the common pleas court duly and regularly had, a street was established, called Railroad street, which extended east and west from Lawrence to Franklin street,

theory and contention of the relator, extend from Water street to the water's edge of Sandusky Bay. It is the view of the relator that, without proceedings in condemnation, the occupation by the railroad of these public slips is wrongful and consists of an abuse and misuse of the franchises, privileges, and rights of the defendant companies.

The claim of the railroad companies, with which the city of Sandusky makes common cause, is, first, that the use and occupancy of the street as granted by the city, and as accepted by the companies, are no diversion of the dedication; and, second, that the restrictions imposed on the public slips by the dedicators cannot extend to the filled lands so as to restrict the use to which they have been appropriated, and that the title of these filled lands on which Railroad street was established is in the city of Sandusky by grant from the state.

We are of the opinion that the real issue in this case may be resolved by an examination and determination of the question whether the use complained of is contrary to the purposes of the dedication. It is to be observed that in the dedication there is

north of and parallel with Water street, its south line being at a uniform distance of 80 feet north of the north line of Water street. The owners of lots fronting on the bay, known as water lots, had constructed docks no limitation upon the manner of the use and wharves into the bay for the purposes cation or transportation thereover. It is esby the public, nor of the means of communiof navigation, and Railroad street was established to connect same and provide an sential, of course, under the terms of the avenue for communication and transporta-dedication, that the use be for the benefit tion. It was soon thereafter that the city and accommodation of the public. required the railroad tracks theretofore laid in Water street to be removed therefrom to Railroad street, as above noted, and also required the railroad to do a large amount of filling and grading, both in Railroad street and in what were called "public slips" between Water street and Railroad street, and those tracks have been used by the companies ever since, and the third track laid in 1880, pursuant to the grant of the city, has been maintained and used since that time.

It is the contention of the relator that under and by virtue of the terms of the dedication, the so-called "public slips" extend to the water from Water street, and that they must be open and public; that they must be so held by the state as trustee; and that consequently the railroad companies have no right to the use and occupancy thereof, the grant therefor by the city of Sandusky being without authority. The claim of the relator is, further, that assuming that these public slips were land, the process of filing was a

The city of Sandusky holds these "open public slips" in trust for the purposes attached to the dedication thereof precisely the same as it holds the streets and other public grounds embraced in the certificate of dedication. By virtue of that dedication the fee of such parcels of land as are therein designated or intended for public use was vested "in the county in which the town lies for the uses and purposes therein named," but by the Act of March 6, 1845, incorporating the city of Sandusky, "the title in fee of all streets, alleys, squares, market places, lanes, avenues, and all other public grounds within the boundaries of said town" was vested in the common council of Sandusky city "in trust for the uses and purposes specified in the record of said plat and no other." Though the title to the public property within the bounds of the city which had been dedicated to public uses thus became vested in the city, it was, of course, subject to the limitations expressed in the dedication, and could be used only for the purposes contem

(146 N.E.)

title subject to the limitations as to uses and purposes stated in the dedication.

suggested that if by reason of such filling these slips were not extended to the water, By virtue of the provisions of section 3714, then the use for which they were dedicated General Code, "the care, supervision, and might be deemed to have been abandoned, control of public highways, streets, avenues, and a situation thereby created as a result alleys, sidewalks, public grounds, bridges, of which a reverter of same could be aqueducts, and viaducts, within the corpora- claimed. tion" is expressly conferred upon the council of municipal corporations. In granting the right to construct the tracks in question in and over Railroad street the council of the city of Sandusky acted pursuant to the authority conferred by the statute, which was then section 3283, Revised Statutes, now section 8763, General Code, providing for the occupancy of a road, street, or ground of any kind upon agreement by the municipal corporation or public officers or authorities owning or having charge thereof and the company as to the manner, terms, and conditions of such occupancy.

[1] There is no room for disagreement upon the proposition that where property is dedicated to a public purpose generally it cannot be diverted therefrom and used for other public purposes, and further that where it has been dedicated for a public purpose therein specified, it cannot be used for purposes inconsistent therewith; nor can there be longer any doubt upon the further proposition that while neither the Legislature nor the municipality may authorize the use of property for a purpose other than such as contemplated by the dedication unless in the exercise of the power of eminent domain, yet the Legislature, or a municipality acting under legislative authority, can apply the dedicated property to all public and beneficial purposes consistent with the terms and purposes of the dedication and regulate the public user. 18 Corpus Juris, 117; Langley v. Town of Gallipolis, 2 Ohio St. 108; LeClercq v. Town of Gallipolis, 7 Ohio, 217, pt. 1., 28 Am. Dec. 641; Board of Education of Van Wert v. Inhabitants of Said Town, 18 Ohio St. 221, 98 Am. Dec. 114; Malone v.

City of Toledo, 28 Ohio St. 643; L. & N. Rd. Co. v. City of Cincinnati, 76 Ohio St. 481, 81 N. E. 983.

[2] The provisions of the statute above referred to authorized the proceeding as a consequence of which the track in question was constructed over Railroad street, and was regular and valid, and occupancy thereunder was lawful unless the proposed use of the so-called public slips was obnoxious to the purposes contemplated in the dedication thereof. In this consideration it must be assumed that these slips were land and extended northward to the water's edge, and, in our consideration and disposition of the case, it may be conceded that the filling, whereby the various streets named were extended, had the effect of extending the public slips in question, and that the mere making of the fill thereof did not change the situation. In this connection the query may be

What other use of these slips could have been contemplated by the dedicator than travel thereover to and from the water of Sandusky Bay? Clearly no other purpose could have been intended. If the laying of this track prevents the use of, and the open and public travel over, such so-called slips, then it would have the same effect if laid in any street, and would be such a diversion of the use thereof as to violate the terms of the dedication, for public streets are dedicated to the use of the public only for the purpose of travel, and cannot be used for purposes inconsistent therewith. Indeed, by the statute in effect at the time of this dedi-. cation, the title to all public grounds, including streets therein platted, was conveyed only "in trust to, and for the use and purposes therein named, expressed or intended and for no other use or purpose whatever."

If, therefore, the laying of the track were held to be a violation of the terms of the dedication of a street, the statute permitting the laying of tracks for street cars or steam railroads in a public street would have no validity whatever. Clearly the general use and purpose of such slips was to reach the water's edge in the same manner and by the same means contemplated in the use of streets. It may be said, however, as it was in the case of Hatch v. Cincinnati & Indiana R. Co., 18 Ohio St. 92, at page 121, that:

"The general purposes to which the easement was and is applied are the same, to wit, the purposes of a public way, to facilitate the transportation of persons and property. Means and appliances are different, but the objects are similar."

Malone v. City of Toledo, supra, at page 661,
The language used by Judge Wright in

is pertinent:

"Highways cannot be confined solely to the uses to which they were adapted in the primitive state of mankind."

Even at the early time when that decision was rendered it was said (page 656):

"It is now every day's experience that streets are used by railroads."

The public use must, of course, be dominant in the street and must continue to be so notwithstanding the construction of a railroad in or across it. Accordingly this court held in Lake Shore & M. S. Ry. Co. v. City of Elyria, 69 Ohio St. 414, 69 N. E. 738, that a municipal council did not have the power to grant to a railway company the exclusive and permanent occupation of a public street; and if such condition were here

Whether a proceeding is an action in chancery or a suit at law is to be determined from the pleadings and from the issue made thereby. Error to Court of Appeals, Cuyahoga County.

presented the decisions in that case, and the | 2. Action 22 Whether proceeding is in case of L. & N. Rd. Co. v. City of Cincinnati, chancery or at law is determined from pleadsupra, would be decisive of the question. ings and issue. But under the very provisions of the statute, as construed and applied in those decisions, the right to lay and maintain such track in a public street, where the dominancy of the public use is regarded, and where there is no attempt to permit the exclusive use and permanent obstruction of the street or any part thereof, is recognized, and the mere fact of the construction and maintenance of such track under the permission of and agreement with the city council, pursuant to the statute, particularly where it does not appear that the result thereof has been to prevent public travel thereover and the free access to the water, but on the contrary that the slips have remained open for the free and uninterrupted use of the public, and that such track does not interfere with or impair the use contemplated in the dedication, cannot warrant a decree of ouster such as prayed

for.

[3] From the facts before us the conclusion is warranted that these slips and their extensions are now in effect streets to the water's edge, and it does not appear that by the extension of those slips any right of the public has been invaded. The purpose that the public should have access to the water

from the end of each of the north and south streets seems to have been fully observed,

and no substantial interference therewith is

Action by the Cleveland Savings & Loan Company to foreclose mortgage against John A. Parsons and another. From judgment of court of common pleas, appeal was taken to the Court of Appeals, and judgment rendered therein, and defendant, Alfred J. Hummer, brings error. Affirmed.-[By Editorial Staff.]

This cause originated in the court of common pleas of Cuyahoga county. The Cleveland Savings & Loan Company brought suit to foreclose a mortgage held by it upon certain premises then owned by John A. ParThe Union sons and Paula R. Parsons. Mortgage Company, holder of a second mortgage, Alfred J. Hummer, the plaintiff in error here, and various other lien claimants were made parties defendant. Answers and cross-petitions were filed setting up the various liens, praying for the ascertainment of the amount due thereon, marshaling of the liens, the sale of the premises, and distribution of the proceeds according to the respecnied by the others, and the validity of the tive priorities. The claim of each was demechanic's lien on the premises claimed by

Hummer was denied in the answer and cross

manifested by the facts presented in the rec-petition of the owners, John A. Parsons and

ord.

Paula R. Parsons. Hummer's alleged me

We concur in the suggestion that a situa-chanic's lien was based upon the claimed tion thus existing for substantially 70 years should not be disturbed by a writ such as sought in this proceeding. The motion of relator for judgment on the pleadings is therefore overruled, and the writ denied. Writ denied.

performance of a certain contract entered into with the Parsonses, whereby he undertook to furnish labor in constructing, altering, and improving buildings on the premises in question, owned by the Parsonses, for which it was alleged the sum of $2,500 was agreed upon. A claim was also made for

MARSHALL, C. J., and JONES, DAY, AL- certain extra labor performed on such premLEN, and CONN, JJ., concur. ROBINSON, J., not participating.

HUMMER v. PARSONS et al. (No. 18494.) (Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

ises by agreement of the parties. In their answer and cross-petition the Parsonses further averred that the labor performed by Hummer was under a written contract, whereby it was agreed that for the stipulated services the Parsonses would pay, and Hummer would receive, $1,800 and a certain Lozier automobile valued at $700; that they had paid the $1,800, and had offered to deliver the particular automobile referred to in accordance with the terms of the agreement, but that Hummer had refused and continued to refuse to accept the same in the discharge of

1. Courts 240-Action to foreclose lien held such obligation. appealable as chancery proceeding.

An action to foreclose a lien upon real estate and to subject property pledged to the satisfaction thereof, whether such lien is a mortgage or a mechanic's lien is a chancery proceeding, and is appealable.

The journal entry in the court of common pleas shows that the matter was heard on the pleadings and the evidence, on consideration whereof the court determined the validity of the mortgages on the premises, found the amounts due thereon, found Hum

(146 N.E.)

mer's mechanic's lien a valid and subsisting that of Hummer, whose cross-petition was mechanic's lien against the premises in the sum of $810.46, and held that he was entitled to have the premises sold for the satisfaction thereof. The court further determined and fixed the priority of the various liens, whereupon an appeal to the Court of Appeals was duly perfected and the case there heard.

was not cognizable in equity and therefore bound to accept a conveyance subject to innot appealable; but this court, by journal cumbrances, and without release of inchoate entry, as appears in 96 Ohio St. 599, 118 N. dower of husband, and upon breach by failure E. 1083, reversed that court upon the author- of vendor to obtain release of dower and disity of Wagner v. Armstrong, supra. charge of incumbrances, an action for damages will lie in vendee's favor.

The measure of damages in such case is the difference between the market value of the property at the time when the conveyance should have been made and the sale price stated in the contract.

4. Vendor and purchaser 130(2)-Import of "marketable title" stated.

A "marketable title" imports such ownership as insures to the owner the peaceable enjoyment and control of the land as against all others.

[2] It is contended, however, that because when it came to the hearing of the issues be-3. Vendor and purchaser 351 (2)-Measure tween Hummer on his mechanic's lien and of damages for vendor's failure to give marthe Parsonses, the owners of the property, no ketable title stated. contention was longer made as to the validity of the lien, but only as to the agreement, and particularly as to the manner of payment, the case was no longer a chancery case and became a suit at law, and no appeal to the Court of Appeals would lie. Whether a proceeding is an action in chancery or a suit at law is to be determined from the pleadings and from the issue made thereby. It is elementary that, where a court of equity obtains jurisdiction of an action, it will retain it and administer full relief, legal or equitable, so far as it pertains to the transaction or the subject-matter involved therein. The fact that subsequent to the joinder of issue by the pleadings in an action to foreclose and marshal liens, determine priorities, and subject the property to the satisfaction of the liens according to their priority, some claims and some matters in dispute were disposed of by admissions and stipulations of the parties, would not serve to change the character of the proceeding from an action in chancery to a suit at law. Jurisdiction was fixed when

the issues were made. Gantz v. Gease, Guard-
ian, 82 Ohio St. 34, 91 N. E. 872.
Judgment affirmed.

MARSHALL, C. J., and ROBINSON, JONES, DAY, ALLEN, and CONN, JJ., concur.

MCCARTY v. LINGHAM. (No. 18493.) (Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

I. Vendor and purchaser
er entitled to marketable title, where con-
tract silent thereon.

Where a written contract of sale of real estate is silent as to the character of the title to be conveyed, the purchaser is entitled to de

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Marketable Title.]

Case Certified to Court of Appeals, Cuyahoga County.

Action by L. C. Lingham against one McCarty. Judgment for plaintiff, and defendant brought error to the Court of Appeals, which certified case to Supreme Court. Affirmed.-[By Editorial Staff.]

This cause comes to this court on error from the Court of Appeals of Cuyahoga county. The case was filed in the court of common pleas of that county August 16, 1920, to recover damages for breach of contract. The contract alleged to have been breached was a lease of a dwelling, which lease contained an option of purchase in the following language:

"It is understood and agreed between the parties hereto that the party of the second part has the privilege of purchasing the aforesaid property at any time during the continuance of this lease for the sum of seventy-five hundred ($7,500.00) dollars cash."

The petition described the real estate, al130(1)-Purchas-leged the substance of the above-quoted paragraph, attached a copy of the lease to the petition as an exhibit, and alleged that the lessee went into possession, and performed all the covenants of the agreement, and that prior to the expiration of the lease notified the lessor of his election to purchase, 2. Vendor and purchaser 130(2), 343 (3)- and of his being ready, willing and able to Vendor not required to accept married wo- purchase; that the lessor had failed to carman's conveyance with liens and incum-ry out the covenant relating to purchase and brances, and without release of husband's sale; and that for the purpose of defeating inchoate dower; vendor's failure to obtain the lessee from the enforcement of his oprelease of dower and discharge incumtion the lessor had connived with her hus

mand a marketable title.

brances held to give vendee right of ac

tion.

Where such a contract is executed by a married woman, and her husband does not join therein, and there are liens and incumbrances by way of mortgage thereon, the vendee is not

band, and had induced the husband to re

fuse to release his dower interest in the property. It is further alleged that the lessor had tendered a deed without release of dower, but that the lessee had refused to