Epitomized Opinion

First Publication of 'this- Opinion

Payne brought this action in Lorain Common Pleas to .recover demurrage ■ charges claimed to have accrued'-on ears-consigned to the Highway - Construction Co. ThS1-track and *77right of way in question was owned by the Railroad Company. It extended from Massil-lon to a coal m'ine, and at the point in question it was used for unloading purposes by patrons of the railroad. The Construction Co. arranged with the railroad to have an un-loader constructed to unload cars shipped to it. It was provided that the unloader should be confined to one side of the track so as not to interfere with other patrons.

The sole question presented was whether this track was a specially designated public delivery track under the demurrage rules then in force. If so, the Railroad Company had no right to have the case submitted to the jury as requisite notice to the Construction Co. had not been given.

The trial court directed a verdict in favor of the Construction Co. Under the rules, a private track was defined as one outside of .carrier’s right of way, yard and terminal, and of which carrier does not own either the rails, ties, roadbed or right of way, or a track or portion of a track which is devoted to the purposes of its user either by lease or written agreement. In affirming the judgment, the Court of Appeals held:

The track and right of way was owned by the Railroad Co. There was no evidence of any lease or written agreement. It therefore .was not a private track; it was a specially designated1 public delivery track.