ON RE-HEARING.
Opinion delivered February n, 1907.
McCueeoch, J.We are asked to reconsider the case and affirm the decree of the chancellor, or at least to modify our former decision so as to direct a decree against appellants, restraining them from interfering with appellee’s use of a railroad spur or switch track running across the strip of land in controversy. After careful reconsideration of the question of appellee’s right to a reformation of the deed from Savage, we see no reason to change the conclusions expressed in the former opinion. The evidence is insufficient to justify a reformation of the deed.
The other question of appellee’s right to use'the switch was not discussed in the former opinion, and we do not now deem it proper to pass upon it as the proof on this issue was not sufficiently developed below to establish the rights of the parties in this respect. It is not shown whether the switch runs across the strip in controversy or whether at that point it is not within the limits of the railroad right of way. Mr. Abeles testified that the railroad company claims a right of way 50 feet wide on each side of the track, and that if it is as wide as that it covers the place where the switch crosses the strip in controversy. The proof does not, however, show definitely the width of the right of way. So we have no means of ascertaining from this record whether the switch is on the land of appellant or of the railroad company. Nor does the proof show that appellant has attempted to prevent appellee from using the switch. We do not, therefore, think there is enough before us to justify us in passing upon the rights of the parties with reference to the. switch.
The former judgment of the court will be modified so as to make the dismissal of appellee’s complaint without prejudice to the right to litigate the question which may arise in dispute between the parties with respect to the use of the switch. In all other respects the prayer of the petition is denied. It is so ordered.