hereafter accruing, and shall pay over to said city two-thirds of all rents collected on land fronting on the river, and lying between the south line of Bath street and a line parallel therewith, and 282 feet northwardly therefrom, until said company shall deliver to said city the possession of said strip of 100 feet in width next to the pier hereinbefore reserved. And said company shall not renew or extend said leases, nor grant any new lease, of any part of the premises, which will interfere with the opening of Bath street to the width of 132 feet, or of the extension thereof on and near the stone pier, as herein before described. The said company shall not lease any part of the premises to any person or persons, company or companies, to be used for conducting or carrying on forwarding, storage, or commission business, or for the erection of warehouses thereon for the accommodation of such business; nor shall said company use said premises, or any part thereof, for the purpose of engaging in, accommodating, or aiding in the transaction of forwarding, commission, or warehousing business, with a view, either directly or indirectly, of deriving profit therefrom, nor shall they grant the right to any railroad company, person or persons, or other company or companies, so to do. But this prohibition shall not be construed to prevent said railroad company from erecting on said premises a suitable warehouse or warehouses for the reception and safe-keeping of such articles of property as may be intrusted to their care for transportation, and not consigned to any person or persons or company in Cleveland having the means of storing the same; it being the object and intent of the parties to this agreement to provide that said premises shall not be so used as to interfere or come into competition with individuals, companies, or firms engaged in forwarding, commission, storage, or warehousing business in Cleveland, by carrying on or engaging in by said company, accommodating, or aiding in forwarding, commission, storage, warehousing, or other business not necessary to secure the transportation of property over their road, but may be used by said company for all purposes necessary for the convenient and profitable working of their road, subject to the restrictions aforesaid. Said company to take and hold said land subject to all the legal rights and claims of the Cleveland & Pittsburgh Railroad Company upon the same, and to have all the benefits to accrue from such claimants, as is before provided; and, as a further provision for the same, shall, upon reasonable and equitable terms, extend to said Cleveland & Pittsburgh Railroad Company and the Cleveland, Painesville & Ashtabula Railroad Company room for warehouse and passenger depots, and such facilities for coming on to said premises with their cars, engines, and tenders, for the reception and delivery of passengers, baggage, and freight, subject to the same restrictions, as to warehousing, forwarding, and commission business, as are herein imposed upon the Cleveland, Columbus & Cincinnati Railroad Company, and for transferring them to, or receiving them from, other railroads, or from steamboats, either by independent tracks, or by the use of the tracks laid by the Cleveland, Columbus & Cincinnati Railroad Company, as shall be found most convenient to all concerned; and in case the parties cannot agree, either as to the terms or manner of occupying such part of the premises as may be so required, the same shall be determined by three competent disinterested men, one to be chosen by each party, and the third by the two so chosen; it being, however, understood that the Cleveland, Columbus & Cincinnati Railroad Company shall not be bound to permit either of said railroad companies to use for car, engine, or warehouse, or grounds on which to place or dispose of cars, engines, tenders, or other furniture of their roads, any part of said premises which said arbitrators shall decide is necessary for those purposes, to be used exclusively by said Cleveland, Columbus & Cincinnati Railroad Company; it being further understood and agreed that no part of said premises shall, after two years from this date, be used by said Cleveland, Columbus & Cincinnati Railroad Company for forges, furnaces, workshops, or anything of a similar character, for the manufacture of cars, engines, or other machinery, so as to deprive either of said other railroad companies of the full benefit of the use of part of said premises intended by this agreement to be extended to them. Said Cleveland, Columbus & Cincinnati Railroad Company shall manage and take care of all suits or actions now pending, or which may hereafter be commenced, for obtaining possession of said premises, or any part thereof, and may compromise or settle such suits; and said company shall save said city harmless from all costs and charges on account thereof, except such as have already accrued against the city, and, in case of settlement, shall save the city harmless from all legal costs in the case in court in bank, except the costs made by the city; and shall further save the city harmless from all legal claims or demands which are now or may hereafter be set up against the city, growing out of the use or occupation of said premises by said city, or its tenants or lessees; and to enable said company to compromise and settle with the claimants Lloyd & Camp and all other claimants for the extinguishment of their claims to said premises, or any part thereof, they may allow them to retain such portion thereof as may be necessary to effect such settlement, and as shall not be deemed necessary to be used for railroad purposes. And the said Cleveland, Columbus & Cincinnati Railroad Company doth hereby covenant and agree, to and with said city, that said company will hold said premises upon the terms, and subject to the stipulations and conditions, herein recited, and will do and perform all and singular the acts required, and abstain from doing and performing all and singular the acts prohibited, by the terms and stipulations herein recited. In witness whereof the city council of the said city of Cleveland have caused to be hereunto affixed the seal of said city, and these presents to be subscribed by the mayor thereof. And the Cleveland, Columbus & Cincinnati Railroad Company have caused to be hereunto affixed their corporate seal, and these presents to be subscribed by their vice president, the day and year first above written. [Seal of the City of Cleve land, Ohio.] [Seal of the Cleveland, Columbus & Cincinnati Railroad Company.] The City of Cleveland, By Flavel W. Bingham, Mayor. The Cleveland, Columbus & Cincinnati Railroad Company, By John M. Woolsey, Vice President. Signed, sealed, and delivered (the words "Alfred Kelley," in the 6th line of 1st page, being first erased, and the words "John M. Woolsey, vice," interlined above such erasure; also the word "vice" being first interlined above the second line from the bottom of the last page) in presence of Jas. D. Cleveland, D. W. Crop. State of Ohio, Cuyahoga County, ss.: Before me, Jas. D. Cleveland, a Justice of the peace in and for said county, personally appeared the within named John M. Woolsey, as vice president of the Cleveland, Columbus & Cincinnati Railroad Company, and Flavel W. Bingham, as mayor of the city of Cleveland, and severally acknowledged the signing and sealing of the within instrument to be their several voluntary act and deed, for the purposes therein expressed, this 14th day of September, 1849. Indorsed: Jas. D. Cleveland, Justice of the Peace. The City of Cleveland to The Clevd., Col. & Cinti. R. Rd. Co. Deed of Land in Cleveland-Bath St. Received July 1, 1851, and recorded July 7, 1851, in Cuyahoga County Supposed to be property listed July 2, 1851. ("B") (From Answer in Holmes v. Railroad Co.) And this defendant [the Cleveland, Columbus & Cincinnati Railroad Comrany], further answering, says that, for the purposes and in the manner hereinafter stated, and under a legal authority so to do, derived from the source and in the manner hereinafter set forth, and not otherwise, this defendant is in the joint occupancy, with the said Cleveland, Painesville & Ashtabula Railroad Company, or so much of the premises mentioned in said bill, and embraced between the westerly line of water street, extended on the east to the said government pier on the west, the northerly line of the premises in said bill mentioned on the north, and a line drawn parallel with, and one hundred and thirty-two feet northerly from, the said northerly line of original lot number one hundred and ninety-one, on the south, as on the diagram hereto attached as Exhibit A, and made a part of this answer, is colored a straw color, together with the tracks thereon indicated by red lines; which diagram, this defendant avers, is a true representation showing the lands embraced in said Bath street at the time this defendant took possession of the same, and lying southerly of low-water mark,-the water line or lowwater mark in said lake at the time possession was so taken, the piling and planking that has since been done by it, the said Cleveland, Painesville & Ashtabula Railroad Company, and the Cleveland & Pittsburgh Railroad Company, northerly of said water line, and the structures which have by them, respectively, been erected on the same, as extended by such piling and planking. And this defendant, further answering, says that so much of said premises as lies northerly of said low-water mark, neither the said Connecticut Land Company, nor said trustees, nor their heirs or assigns, nor the assigns of any or either of them, ever had, or now have or has, any title whatever, and that the title to the same, both legal and equitable, and the sole control thereof, have at all times been, and still are, in said city of Cleveland, or in the public, for the sole use and benefit of the public. And this defendant, further answering, denies that it occupies, or claims to occupy, the aforesaid parcels, through or under, in any manner, the said William B. Lloyd, or his assigns, or the other heirs at law of said Thomas Lloyd, or their assigns, or said Thomas Lloyd himself, or under or by virtue of the quitclaim deed to said Thomas from said trustees, or that this defendant now holds, or ever held, any title or interest whatever in said parcel of land, in trust for complainants, or any or either of them, or that this defendant has received a large amount of rents and issues from said land, as alleged in said bill of complaint. But this defendant admits that it does now refuse, and has at all times hitherto refused, to recognize said complainants as having any legal or equitable title whatever in said parcels, or either of them, and that it has at all times refused, and still does refuse, to account in any manner to complainants for the use of said parcels, or either of them. And this defendant, further answering, says that as early as the year 1796 the said Connecticut Land Company, being desirous of founding a city on the Western Reserve, at the mouth of the said Cuyahoga river, and on the easterly side thereof, caused the northwesterly portion of the lands upon which the said city of Cleveland is now situated, by Seth Pease and Augustus Porter, surveyors of said company, and authorized agents thereof, for such purpose, to be surveyed and laid off into town lots, streets, lanes, and public grounds, and the town so surveyed and laid out so to be named "The City of Cleveland," and a map or plat thereof, and minutes of such survey, to be made by said Pease and Porter (commonly called the map and minutes of Pease and Porter), particularly setting forth the lots, streets, lanes, and public grounds, and describing the same by courses, boundaries, and extent, a copy of which map and minutes is hereto attached, marked "B" and made a part of this answer. That upon said map said company caused the lots so laid off to be numbered progressively from one to two hundred and twenty, inclusive, and all the lands described in said bill of complaint lying west of the west line of Water street, and north of the north line of lot number 191, and of the said Cuyahoga river, and south of the waters of Lake Erie, as indicated on said map, to be laid off as public ground, and designated as "Bath Street" (the same having no other northerly boundaries than the waters of said lake); said company intending thereby to give, and in fact giving thereby, and dedicating to the public, all the lands so designated upon said map as "Bath Street," for the purposes of a public street or way communicating with the navigable waters of Lake Erie and said river, and for such other commercial purposes as the commerce and well-being of the future inhabitants of such city of Cleveland might require a public ground, situate as Bath street was and is, in reference to said lake and river, to be used. That, in the year A. D. 1801, said Connecticut Land Company, by one Amos Spafford, a surveyor and authorized agent of said company, for such purposes, caused the streets, lanes, and public grounds of the said city of Cleveland, surveyed and platted as aforesaid in 1796 and '7, to be resurveyed, and minutes thereof to be retaken, and a second plat to be made of the lots, streets, lanes, and public grounds in such city (which was and is substantially a copy of the aforesaid map of Pease & Porter), commonly called the plat and minutes of Amos Spafford of the city of Cleveland, a copy of which plat and minutes is hereto attached, and marked "C," and made a part of this answer, and that upon said last-mentioned plat (as upon the plat of said Pease & Porter) said company again caused all the lands lying west of the west line of said Water street, and north of the north line of said lot No. 191 and the Cuyahoga river, and south of the waters of Lake Erie, to be designated as "Bath Street"; thereby affirming the dedication and appropriation of the same, made as aforesaid in the year 1796, to the public, for the purposes aforesaid. And this defendant, further answering, says that said Connecticut Land Company, having allotted and platted the said city of Cleveland as aforesaid, proceeded to sell the lots designated in said plats in reference thereto, and long since sold out, and otherwise disposed of, the lots in said plats, and ceased to have any interest therein. That the trustees of said company long since executed conveyances of the same to the purchasers thereof, and distinctly recognized the existence and validity of the survey and plat of said Spafford in their conveyances of the lots contiguous to said Bath street. That the purchasers of said lots took possession of the same, and made valuable improvements thereon, in reference to said plat and said Bath street; and they and their assigns have ever since, for a period of more than a half century, occupied and improved said lots, and still do occupy and enjoy the same, in reference to said plat. That from the making of the said Spafford map, as aforesaid, until the present time, said land company and their assigns, so long as they continued to have any interest in the lands embraced in said plat, and the inhabitants of said city of Cleveland, have at all times recognized, and still do recognize, the plats of said Spafford and Pease and Porter as controlling evidence of the boundaries of lots, streets, lanes, and public grounds designated therein. And this defendant, answering, says that, in obedience to the requirements of an act of the legislature of the territory northwest of the Ohio, passed December sixth, A. D. 1800, entitled "An act to provide for the recording of town plats," etc., to be found in 1 Chase's Ohio St. p. 291, c. 130, and which is made a part of this answer, said land company caused the map and minutes of said Spafford, as it had before caused those of said Pease and Porter, to be deposited in the office of the recorder of the said county of Trumbull (in which county the lands described in said plat were then situate) for record, and the same, as this defendant has been informed and believes to be true, were, on or about the 15th day of February, A. D. 1802, duly recorded by the recorder of said county, although the record of said map has long since been accidentally lost or destroyed, and cannot be found. And this defendant, further answering, says that, as early as the year A. D. 1800, said Bath street, as delineated on the plat of said Spafford, having for its northern boundary the waters of Lake Erie, as aforesaid, with the free knowledge and consent of said land company, was opened, occupied, and traveled as a public street or way, and from thence hitherto, with the full knowledge and uninterrupted acquiescence of said company, the trustees thereof, and their respective heirs and assigns, it has been at all times regarded, used, and occupied by the inhabitants of said city of Cleveland, and the public generally, without molestation, not only as a public way in said city communicating with said lake and river, but also (and of late years extensively so) as a quay or public landing for persons and property transported, and to be transported, upon the waters of Lake Erie, and still is so regarded, used, and occupied by the inhabitants of said city; and that for more than a quarter of a century prior to the year 1827, when the channel of the said river, as laid down on the map of said Spafford, was changed to its present location by the United States government, said Bath street was the only public way used, or which could be used, by the inhabitants of said city and the public, for the transportation of persons or or property, by vehicles of any description, to or from said lake or river. And this defendant, further answering, says that, by an act of the general assembly of the state of Ohio entitled "An act to incorporate the village of Cleveland, in the county of Cuyahoga," passed December 23, A. D. 1814, and is to be found in volume 13, p. 17, of the laws of said state, and which is made part of this answer, so much of the plat of said Spafford as lies northerly of Huron street was erected into a village corporate, to be known by the name of "The Village of Cleveland," and the corporation thus created invested with the powers therein mentioned, which corporation continued to exist until superseded as hereinafter stated. That by another of the same general assembly, entitled "An act to incorporate the city of Cleveland, in the county of Cuyahoga," passed March 5, A. D. 1836, and to be found in volume 34, p. 271, of the Local Laws of said state, and which is also made part of this answer, all the lands embraced in the plat of said Spafford lying eastwardly of the present channel of the Cuyahoga river, together with additional territory, was declared to be a city, and the inhabitants thereof created a body corporate and politic, by the name and style of the "City of Cleveland," and invested with such powers and trusts touching the streets, alleys, public grounds, and harbor within the corporate limits thereof as are specified in said act, which powers and trusts have from thence hitherto been, and still are, exercised and executed by said corporation, and that said Bath street at all times since the passage of said acts of incorporation, respectively, with the knowledge and acquiescence of said land company, its trustees, and their respective heirs and assigns, has been claimed, regarded, controlled, and regulated by the inhabitants and corporate authorities of said village and city as one of the streets and public grounds thereof, and still is so claimed, regarded, and governed by the corporate authorities of the said city of Cleveland, and the use of the same, as such, has never been in any wise vacated or abandoned by said city or its inhabitants; and this defendant avers that by reason of the premises aforesaid said Bath street is in fact one of the public streets and grounds of said city; that the legal title thereof, as this defendant is advised by counsel learned in the law, is now vested either in the said city of Cleveland or the public, in trust for the uses and purposes intended as aforesaid by said Connecticut Land Company, in dedicating the same as aforesaid to the public, and that the public has the right to use the same for such purposes without molestation from complainants. And this defendant, further answering,, says that, after the channel of the Cuyahoga river, as delineated on the plat of said Spafford, was changed to its present location, as aforesaid, the government of the United States, on the easterly thereof, at its mouth (to render said river accessible to water craft navigating Lake Erie), constructed permanent improvements, extending into said lake more than a quarter of a mile from the northerly or water line of said Bath street, as it was when said channel was changed. That, by reason of said improvements and lesser ones made by the inhabitants and corporate authorities of said city at great expense, the encroachment of said lake upon said Bath street, which at times had threatened wholly to submerge the easterly portion thereof at and in the vicinity of said Water street, and render the same useless for the purposes to which it was dedicated as aforesaid, have been stopped, and that part of said Bath street easterly of, at and in the vicinity of, the east pier of said river, has been increased in width, by slow and imperceptible alluvial formation, so that the greater portion of the land embraced between the southerly line of said Bath street and said water line or low-water mark, as the same was when this defendant took possession of said premises, has been formed by accretion, and lies northerly of the water line of said street as it was when said channel was changed; and that, notwithstanding said Bath street has increased in width, the rapid growth of the said city of Cleveland, and the incessant and increasing wants of its |