The opinion
Treat, J.
I concur fully with so much of the foregoing opinion as establishes the intervenor’s right to the entrance into St. Louis over respondent’s right of way and tracks, subject to reasonable regulations by respondent for the safe conduct of persons and property in the common use thereof. This case involves a very difficult and complicated inquiry, and the court has been embarrassed by the many obscure details of the different contracts. After reading and analyzing with the most painstaking care the special and general provisions of the contracts in question, no other conclusion could be reached than that stated by my brother judge, viz., that the intervenor has a right to the use of the track and right of way of the respondent. The very terms of the original contracts to which the respondent succeeds cast upon it the obligations connected therewith. In other terms, it takes cum onere. Hence I concur fully with pay brother judge that the right of user exists; but I differ as to the propriety or duty of fixing the measure of compensation in this stage of the case. Those terms are, by the contract, to be agreed upon by the parties; and why should they not have an opportunity to come to an agreement? True, the respondent denies the right of intervenor to the use of its track and right of way, and consequently, in the intermediate inquiry, refused to enter upon terms. How could it make such terms . without confessing intervenor’s right?
It having now been' decided, with full concurrence on my part, that the intervenor has the right claimed., the difficult proposition is thrust upon the court as to the terms of its enjoyment. By the contract itself, those terms are to be settled by the parties, Why should they not be permitted to do so? If, hereafter, it should occur that through fraud, attempted extortion, or otherwise, the right of user is to be practically defeated, the court would necessarily lay its hand upon the transaction, and enforce the respective rights of the parties as justice might demand. It seems to me that the measure of compensation should not be prescribed at the present state of the controversy, irrespective of the terms of the contract as to the mode of determining the same, the more especially as the intervenor has no exclusive right in the premises. Another railroad corporation may appear next year, and insist upon its rights under the contract; and so on, from time to time, successive corporations. The respondent must make, necessarify, the proper regulations for safety and otherwise, pertaining to the use of a common track entering a large city like St. Louis, where the most complicated details are needed for approaches to a common depot.
It is true that the Express Cases rested on an independent proposition, and consequently cannot govern this case. Here is a distinct contract by which the respondent is bound. It took cum onere. By the terms of the obligation, others could use, subject to its regulations, the common track and right of way, upon such consideration as the- parties might agree upon. They have not as yet agreed, and, since this determination of the *561 right of intervenor, no opportunity has been given them to consult and agree. It may be that they can do so, more wisely and justly than the court, if opportunity is given. It is obvious that courts are not, without fullest evidence before them, equal to the task of prescribing bow railroads should 1)0 operated in their minute details, one with the other, in the interchange of traffic, or use of common tracks, depots, etc. When difficulties arise, as now, where rights between them are to bo determined, the adjustment of details should he left where the contract leaves it; otherwise, not only great injury and confusion may occur, but the court be compelled to retain an indefinite control of the case, to meet ever-shifting contingencies, as to transportation, new improvements, advancing trade, etc. ín my view of this case, the question of compensation between the-parties should not be decided now, but reserved for further consideration.
There are some minor elements as to the status of the parties, technically, which may be worthy of further consideration, should cause therefor be presented. By this is meant the. position occupied by the purchasing committee under the terms of sale heretofore made.
The result is that I fully concur in the foregoing opinion, except so far as the same determines the measure of compensation between the parties, not that the rule may or may not be correct, if the court is compelled finally to pass upon the same, but merely that such action is premature, and should be reserved for further action, if needed.