*247Dissenting Opinion.
Wiley, P. J.I cannot concur in the opinion reached by the majority of my associates, nor in the reasoning leading thereto. That I may fully express my views upon the legal questions involved, I deem it necessary to state fully the facts stated in the complaint.
In July, 1889, the Louisville, New Albany & Chicago Eailway Company owned and operated a line of railway, running north and south in and through Lawrence county, Indiana. At the city of Bedford, in said county, it maintained a statiop. and telegraph office. At that time the Evansville & Eichmond Eailway Company was constructing a line of railroad in and through said county, running east and west. The latter company had to cross the former company’s right of way and track, about 2,125 feet north of the former’s telegraph office at Bedford. On July 29, 1889, the two companies entered into a written contract, by which the latter company bound itself to “put in and permanently maintain, protect and operate an interlocking switch and signal system” at the intersection of the two roads. In that contract the Louisville, New Albany & Chicago Eailway Company is designated a “party of the first part,” and the Evansville & Eichmond Eailway Company is designated as “party of the second part,” and for convenience and brevity these terms will hereafter be used in this opinion where a reference to the two companies is necessary. By the terms of that contract the party of the first part granted to the party of the second part the right to construct and maintain its railroad over and across the main track, switches proper, and what was known as the “Blue Hole Switch,” owned by the party of the first part. The crossing was to be on a grade with the road of the first party, and the point of crossing was designated.
The terms upon which the grant to cross was given may be stated as follows: The party of the second' part was to *248furnish all material and perform all labor required to raise thé track, known as the “Blue Hole Switch” (which was a track connecting with the main line of the first party extending to the Chicago & Bedford Stone Company), to a common grade or level with the main line, and to raise all bridges on said switch so as to conform to such grade. The second party was to perform all labor incident to the construction and maintenance of said crossing, including crossing frogs, targets, signals, etc.; and, inasmuch as the grade at the point of crossing was heavy, and trains of the road of the first party could not be stopped at said crossing, the second party agreed to put in and permanently to maintain, protect and operate an interlocking switch and signal system, of a safe and approved kind, so as to enable the first party, without violation of law, to cross at said point without having to stop its trains. ■ The first party at all times was to have priority of right to run its trains of the same class over said crossing, as against the right of trains of the second party. If the first party at any time wished to construct additional tracks at the point of intersection, the second party, at its own expense, was to adapt its own tracks to such additional tracks, and construct and maintain one-half of all necessary crossings, frogs, targets, signals, etc. All appliances, structures, fixtures and instruments pertaining to said crossing, switches and signals were to be of such design, pattern, quality and construction as were necessary and safe in the opinion of the proper officers of the first party, and all persons employed by the second party to perform services at such crossings were to be subject to removal at the demand of the first party. The second party was to protect and save harmless the first party against all loss, damage, cost or expense which might result either in the construction, maintenance or use of the crossing, or from the acts of any person who might‘be appointed to perform services by the second party at the crossing.
*249The sixth subdivision or clause of the contract is as follows:
“The second party agrees not to run any track or tracks to or from any stone-quarry which is connected with the road of the first party by switches or tracks built thereto by said first party or under contract therefor, and will not make any demands for the use of said first party’s tracks or switches leading to any such quarries for the shipment of stone therefrom, the express purpose of this clause being to preserve to said first party all rights and benefits now acquired in the business of such quarries; and it is hereby expressly understood and agreed that the consideration for granting the rights and privileges herein expressed to said second party is the covenant and agreement of said second party not in any manner, directly or indirectly, to interfere with or divert the benefits now derived or to be hereafter derived from said first party’s connection and business with such quarries.”
The seventh and last subdivision of the contract is as follows:
“In consideration of making a T connection, it is agreed between the parties hereto that in case any party or parties require said first party to forward stone or other car-load freight to the line of the second party, it is agreed that the proportion of the through rate from any given quarry or station accruing to the party of the first part shall not be less than three cents per hundred pounds.”
The interlocking switch provided for in the contract has never been constructed.
This action was brought by appellant, as successor to the Louisville, blew Albany & Chicago Eailway Company, against appellee, the successor to the Evansville & Bichmond Eailway Company, upon that contract.
The. complaint is in three paragraphs, to each of which a separate demurrer was sustained. Appellant, assuming that each paragraph of complaint was impregnable to a *250successful assault of a demurrer, stood upon the ruling thereon, and declined to plead over. Erom a judgment against it for costs, it prosecuted this appeal, and by its assignment affirms that sustaining the demurrer to its complaint was error.
In each paragraph of the complaint it is averred that in 1891 appellant became the owner of all the rights and property of the Louisville, New Albany & Chicago Railway Company; that on July 29, 1889, its predecessor entered into the contract above specified, with the Evansville & Richmond Railway Company; that said last-named company was incorporated under the laws of Indiana for the purpose of owning and operating a railway from Elnora, Daviess county, to the city of Richmond, and to construct said road it was necessary to cross the line of road of the Louisville, New Albany & Chicago Railway Company in the city of Bedford, and that said contract was entered into for the purpose of securing a right to make said crossing; that at the time of the execution of said contract the Evansville & Richmond Railway Company had not completed its road, and had done no construction on the right of way or tracks of appellant’s predecessor; that said company had no interest in said right of way or tracks, or right to cross the same, and entered into said contract for the sole purpose of securing said right.
Each paragraph contains the following averments: “That said Evansville & Richmond Railway Company took possession of said easement and right of way under said contract; that the only consideration received or promised for the granting of said easement and right to cross said right of way and railroad was the covenant expressed in said contract to do and perform the matters and things therein set forth.” It is further averred that, acting under the right given by said contract, said Evansville & Richmond Railway Company entered upon said right of *251way and tracks, and constructed its superstructure, laid its steel and completed its railway across the.same, and while it continued to own said railway it so occupied said crossing and tracks; that the Evansville ¿ Richmond Railway Company, to secure certain bonds, executed its mortgage on its railway property, but at the time of the execution of said mortgage it had not constructed its railway at said point of crossing, and it did not then have any right to or interest in the property of appellant’s predecessor, or right to cross such right of way or tracks, and that said right so to cross was not secured until long afterward, and by said contract alone; that said Evansville & Richmond Railway Company defaulted in the payment of said mortgage debts, and on this account said mortgages were foreclosed and all of its rights and property sold to pay said indebtedness; that at said sales the Evansville & Richmond Railway Company became the purchaser of said rights and property; that since said purchase the Evansville & Richmond Railway Company continued to own said railway and to operate said rights and franchises; that the corporate name thereof was afterward changed to the Southern Indiana Railway Company, and since said change in name appellee has continued to own said rights and franchises and to operate said line of railroad of its predecessor company, and has “continually occupied said crossing, and has asserted the right and title to said easement under and by virtue of the title acquired at said foreclosure sales, and not otherwise.” Each paragraph contains the following averments: “The Southern Indiana Railway Company obtained and took the right and title which said Evansville & Richmond Railway Company acquired in and to said easement in said right of way crossing, and has ever since held the same, and has always asserted its legal right to do so under said agreement, and by no other source of title.”
All three paragraphs aver that on account of the steep grade on appellant’s road at and near the point of crossing, *252which is averred to be fifty-seven feet to the mile, it is very difficult, and at times impossible, to stop its south-bound trains before reaching said crossing; that in running its trains northward it is necessary to run at a rapid rate of speed, in order to obtain sufficient momentum to enable an engine to draw the trains up and over the grade; that on account thereof there has been and will continue to be great danger of collision, which would involve great loss of life and property; that if said interlocking switch is installed it will be impossible for trains and engines to collide on said roads at said crossing, and all danger to life and property will be thereby avoided.
Each paragraph also avers that said contracting party and its successor (the appellee) have failed and neglected to perform the conditions of said contract on their part. The second paragraph differs from the first and third, in that, in addition to all of said general averments, it alleges that, pending the receivership and foreclosure proceedings against the Evansville & Richmond Railway Company, the Louisville, New Albany & Chicago Railway Company intervened, and asked that performance of said contract be required, and that before the trustees of the bondholders of said Evansville & Richmond Railway Company or the appellee acquired any interest in said property under said sale, they had actual and constructive notice of said contract and its terms and provisions.
The prayer of the first and second paragraphs of complaint is that appellee be required to construct and maintain the interlocking switch provided for in the contract sued on. The prayer of the third paragraph is for $5,500 damages, which appellant avers it has sustained by reason of the failure to perform the contract, and that that amount would be required to construct, etc., said interlocking switch.
Counsel for appellee directed the major part of their argument against the sufficiency of the complaint, on the *253theory that the contract sued on is ultra vires and void. This contention is based upon the sixth subdivision of the contract, which we have quoted, which it is averred places an inhibition on the party of the second part from running any track or tracks to or from any stone-quarry which is connected with the road of the first party. It is urged that such an inhibition is against public policy, and therefore the contract cannot be enforced.
The right of one railroad to cross another is a recognized right, and public policy and the general interests of the public require it. That right is regulated by statute in this jurisdiction. §5153 Burns 1901, cl. 6, §3903 E. S. 1881. Provision is made that, in case one railroad company desires to cross the right of way and tracks of another, and the two companies cannot “agree upon the amount of compensation to be made therefor, or the points or manner of such crossings and connections, the same shall be ascertained and determined by commissioners,” etc. Section 5154 Burns 1901, §3904 E. S. 1881, provides that “where it becomes necessary for the track of one railroad company to cross the track of another railroad company, the company owning the road last constructed at such, crossing shall, unless otherwise agreed to between such companies, be at the expense of constructing such crossing in a manner to be convenient and safe for both companies.”
In the absence of a contract to the contrary, when such crossing is constructed, the statute (§5155 Burns 1901, §3905 E. S. 1881) makes it the duty of each company to maintain and keep in repair its own track so as at all times to provide a ready, safe and convenient crossing for all locomotives or trains passing on either road at such point.
Independently of any statutory provision, I have no doubt of the right of two railroad companies to contract between themselves upon what terms and conditions a crossing may be constructed. Possessing such right, it carries with it the additional right to contract as to the *254kind and character of the crossing and fix the burden by which it shall be maintained. This right, it must be understood, cannot be exercised to the detriment of the public, nor in contravention of public policy. Having a right so to contract, it is the duty of the courts to enforce such contracts, if they are in all things valid. '
It must be kept in mind that where two railroads intersect or cross, the one last constructed does not acquire any title to the right of way, property and track of the original road, but only acquires an easement therein.
In the case I am now considering, there is no doubt but that the two original contracting companies had a right to contract between themselves, whereby the “party of the second part” bound itself to construct and maintain at the point of crossing an interlocking switch.
By entering into the contract, the “party of the first part” parted with a valuable right, in that by crossing its tracks the latter company would, to some extent at least, interfere with the free and uninterrupted use of its property, which it previously enjoyed. By virtue of the terms of the contract the “party of the second part” acquired and enjoyed all the rights and benefits thereby conferred upon it. The appellee here is now enjoying such rights and benefits by succession.
If, under the contract, appellee’s predecessor acquired an easement, and of this there can be no doubt, then the first question for determination is: Did such easement pass to appellee ? The complaint avers that appellant succeeded to all rights, privileges, property and contracts of the Louisville, New Albany & Chicago Railway Company, and that appellee in the foreclosure proceeding, and purchase thereunder, acquired all the rights, privileges, property, etc., of the Evansville & Richmond Railway Company.
It is hard to conceive, from a legal or equitable standpoint, how, under such conditions and circumstances, either of the succeeding companies could acquire all the beneficial *255rights, privileges, property, etc., of their predecessors, and be relieved of all their burdens.
By the terms of the contract, appellee’s predecessor acquired a right of way over and across the private property of the Louisville, ISTew Albany & Chicago Eailway Company. Thus by the contract a covenant was created, which covenant runs with the use of such way, and, under the authorities, is binding upon the appellee which succeeded to the rights, etc., of one of the contracting parties. Dayton, etc., R. Co. v. Lewton (1870), 20 Ohio St. 401; Midland R. Co. v. Fisher (1890), 125 Ind. 19, 8 L. R. A. 604, 21 Am. St. 189; Lake Erie, etc., R. Co. v. Priest (1892), 131 Ind. 413, 416; Toledo, etc., R. Co. v. Cusand (1893), 6 Ind. App. 222, 224; Lake Erie, etc., R. Co. v. Griffin (1900), 25 Ind. App. 138.
Appellee cannot assert its right to exercise the beneficial privileges given by the contract, and at the same time repudiate its covenants. It enjoys its easement to cross appellant’s tracks, side-tracks and right of way, and unless there is something in the contract itself to exempt it from performance — as, for instance, the contract is ultra vires — ■ then it is bound to perform. To permit it to retain its rights and privileges, and repudiate its burdensome obligations — its covenants — w<?uld be antagonistic to the broad and wholesome principles of equity, and shock good conscience. Louisville, etc., R. Co. v. Power (1889), 119 Ind. 269, 272; Bloomfield R. Co. v. Grace (1887), 112 Ind. 128; Lake Erie, etc., R. Co. v. Griffin (1886), 107 Ind. 464; Midland R. Co. v. Fisher, supra; Joy v. St. Louis (1891), 138 U. S. 1, 11 Sup. Ct. 243, 34 L. Ed. 843. See, also, Brannon v. May (1873), 42 Ind. 92; Hazlett v. Sinclair (1881), 76 Ind. 488, 40 Am. Rep. 254.
The question of controlling influence, and the one possibly fraught with the greatest difficulty, is that raised by appellee — that by reason of the sixth clause or subdivision of the contract it is ultra vires. Under the facts pleaded, *256it can only be held to be ultra vires upon two grounds: (1) That the contract was prohibited by statute; or (2) that it is against public policy. It is certain that there was no statutory inhibition forbidding the contract, and hence, if ultra vires, it is ¡because it was against public policy. In this connection, it is well to consider, first, the power of two corporations to enter into contracts. Generally speaking, there is no question but that they possess such power.
The contracting parties here, therefore, had the right and authority to agree between themselves that “the party of the second part” might cross the right of way and tracks of “the party of the first part.” The statute abqve cited specifically creates such right. The right to contract implies the right to fix the terms of the contract. The contract is now an executed one, viz., the appellee is in the full enjoyment of all the rights and privileges granted to its predecessor, and to which it succeeded. While it continues in the enjoyment of such rights and privileges, and in the possession and use of the easement thus granted to it, can it in equity deny the validity of the contract?
Eor the purposes of the determination of this question, let it be conceded that the contract was ultra vires. When this contract was executed “the party of the second part” had no right to any part of appellant’s right of way over which to effect a crossing, except a statutory right. It did not proceed under the statute, but selected its remedy by contract. Under that contract it took possession, and still retains and enjoys possession. If inquiry should be made of appellee by what right it crosses appellant’s right of way and tracks, and thus occupies the same, it would have to answer that it was by reason of the right acquired hy the contract.
In Louisville, etc., R. Co. v. Power, supra, appellant was occupying its right of way under a deed, and it sought to deny its validity because no grantee was named therein. *257It was held that, holding the land under the deed as it did, it was hound to perform its contract to fence its right of way.
In Midland R. Co. v. Fisher, supra, it was held that one who takes a privilege in land to which a burden is annexed, has no right to claim the privilege and deny the responsibility of the burden. That a party who acquires such a privilege acquires it subject to the conditions and burdens bound up with it, and must, if he asserts a right to the privilege, bear the burden which the contract creating the privilege brought into existence. The court said: “The one he cannot have at the expense of the other.”
The case of Nashua, etc., R. Corp. v. Boston, etc., R. Corp. (1884), 19 Fed. 804, 16 Am. & Eng. R. R. Cas. 488, was where the two companies entered into a pooling agreement. While acting under the agreement, one company received money to which the other was entitled. In an action to recover for the money so received, the defendant interposed the defense that the contract was invalid. It was held that though the pooling contract was not within the corporate powers of the two companies, it could afford no defense to the Boston company when called upon to restore to the plaintiff the sum received in excess of its due. The decision was based upon the proposition that the contract had been fully executed, and the defendant had availed itself of all the benefits to be derived from it, and was therefore estopped from denying its validity.
The case of the Central Trust Co. v. Ohio Cent. R. Co. (1885), 23 Fed. 306, 23 Am. & Eng. R. R. Gas. 666, also involved rights growing out of a pooling contract. It was held that, whether the contract was legal or not, the question was whether one party, who had received all the expected benefits to be derived from it, should account for the fruits of its performance, which by its terms belonged to another, and which, contrary to its terms, it retained. The equitable rule was there enforced requiring an accounting.
*258The case of Joy v. St. Louis, supra, is supportive of the principle of law now under consideration. In that case the city of St. Louis gave two railway companies the right to construct a track through, one of its parks. The agreement provided that other roads should use the track upon specific and equitable terms. Such use was granted to avoid cutting up the park by other roads. In an action to enforce that part of the agreement by one of the roads, a defense was predicated upon the proposition that the city had no right to impose such terms. In deciding the question the court said: “In order to obtain the right of way through the park, the Kansas City company subjected itself to the condition imposed’ by paragraph nine of the tripartite agreement, and it is right that, that company and its successor should be held to a strict compliance with its covenant. The appellants, although enjoying the benefit of the $40,000 expended by the park commissioners and of the right of way through the park, deny their liability under the agreement, without offering to return to the grantors the property obtained by virtue of the agreement. Under such circumstances these parties cannot be heard to allege that the agreement was against the policy of the law.”
In Warren v. Jones (1862), 51 Me. 146, one of the parties sold to the other his factory and “all his trade and customers.” The purchaser brought an action against the seller to prevent him from entering into the same business in violation of his contract. The seller contended that the contract was in restraint of trade, and hence was against public policy. The court tersely, disposed of the question by declaring that the contract was not against the policy of the law, and, even if it was, the defendant could not profit by it and at the same time retain the consideration.
The following cases are in point and illustrative of the question under consideration. I cite them without comment: Manchester, etc., Railroad v. Concord Railroad (1889), 66 N. H. 100, 20 Atl. 383, 9 L. R. A. 689, 49 *259Am. St. 582; Brooks v. Martin (1863), 2 Wall. 70, 17 L. Ed. 732; Wiggins Ferry Co. v. Chicago, etc., R. Co. (1881), 73 Mo. 389, 39 Am. Rep. 519.
The term ultra vires, in its literal sense, means beyond the power or capacity of a corporation, company or person. This must be understood to mean lawful authority. 27 Am. and Eng. Ency. Law, 352; Century Diet.; Brown’s Law Diet.; Anderson’s Law Diet.
In modern jurisprudence, the defense of ultra vires is very generally regarded by the courts as an ungracious and odious one, and it now seems to be firmly settled that neither party to the contract can avail himself of such defense, when the contract has been fully performed by the other party, and he has received the full benefit of the performance of the contract. If an action cannot be brought directly upon the contract, either equity will grant relief, or an action in some other form will lie. 27 Am. and Eng. Ency. Law, 360; Whitney Arms Co. v. Barlow (1875) , 63 N. Y. 62, 20 Am. Rep. 504.
It has been declared that, generally speaking, the rule of ultra vires prevails only where the contracts of corporations remain wholly executory. Thompson v. Lambert (1876), 44 Iowa 239.
Dealings of corporations, which, on their face or according to their apparent import, are within the powers granted, are not to be considered as illegal or unauthorized, without some evidence tending to show that they are of such a character. In the absence of proof, there is no presumption that the law has been violated. 27 Am. and Eng. Ency. Law, 355 ; Chautauqua County Bank v. Risley (1859), 19 N. Y. 369, 75 Am. Dec. 347; Allegheny City v. McClurkan (1850), 14 Pa. St. 81; Mitchell v. Rome R. Co. (1855), 17 Ga. 574; Oxford Iron Co. v. Spradley (1871), 46 Ala. 98; Downing v. Mt. Washington R. Co. (1860), 40 N. H. 230; Union Water Co. v. Murphy’s Flat Fluming Co. (1863), 22 Gal. 620,
*260In the case of Bissell v. Michigan, etc., R. Co. (1860), 22 N. Y. 258, the rule was declared that when a corporation received the consideration of its contract, although it might be unauthorized, and a restitution would not do complete justice, the remedy of the other party is not confined to a suit in disaffirmance of the contract, but may be directly upon it, and would be enforced under any circumstances of controlling equity.
There are numerous authorities holding that the ground upon which the defense of ultra vires is most generally excluded is that of estoppel; and this, of course, is on the basis that the corporation, having received the fruits of the contract, should not be permitted to plead want of power in the corporation, and thus escape liability. This principle is fully discussed in 27 Am. and Eng. Ency. Law, 361, and numerous authorities are collected and cited.
In the contract before us, it must be kept in mind that the contract was fully executed on the part of one of the contracting parties. By it the other party got all that it bargained for, and is still enjoying its fruits. The supreme court of Colorado has held that where a corporation has received the benefit of a contract it may not deny its validity. Denver Fire Ins. Co. v. McClelland (1885), 9 Colo. 11.
And so there is a distinction between ultra vires contracts purely executory and those fully executed on one side. Such distinction is founded in reason and good conscience.
Where the contract has been fully performed by one of the parties, the infraction of the law has already taken place, which eliminates all questions of public policy, and allows the courts to deal with the contract upon equitable principles. Pennsylvania R. Co. v. St. Louis, etc., R. Co. (1886), 118 U. S. 290, 6 Sup. Ct. 1094, 30 L. Ed. 83; St. Louis, etc., R. Co. v. Terre Haute, etc., R. Co. (1892), 145 U. S. 393, 12 Sup. Ct. 953, 36 L. Ed. 748; Thomas v. West Jersey R. Co. (1879), 101 U. S. 71, 25 L. Ed. 9050; Mai*261lory v. Hanaur Oil Works (1888), 86 Tenn. 598, 8 S. W. 396; Darst v. Gale (1876), 83 Ill. 136 ; Bradley v. Ballard (1870), 55 Ill. 413, 8 Am. Rep. 656.
Where one railroad corporation used the roadbed, rolling stock and equipments of another, it was held that it could not set up the defense of ultra vires to a bill in equity by the latter, for an accounting and return of the property. Manchester, etc., Railroad v. Concord Railroad, supra. The language of the court in that case is so forceful and clear that we quote the following: “The defense set up is so repugnant to the natural sense of justice, so contrary to good faith and fair dealing, and so opposed to the weight of modern authority, that it need only' be said that in equity, at least, neither party to a transaction ultra vires simply is heard to allege its invalidity while retaining its fruits. However the contractual power of the defendants may be limited under their charter, there is no limitation of their power to make restitution to the other party, whose money or property they have obtained through an unauthorized contract; nor, as a corporation, are they exempted from the common obligation to do justice which binds individuals, for this duty rests upon all persons alike, whether natural or artificial.” See Memphis, etc., R. Co. v. Dow (1884), 19 Fed. 388; Brown v. City of Atchison (1888), 39 Kan. 37, 17 Pac. 465, 7 Am. St. 515; Manville v. Belden Min. Co. (1883), 17 Fed. 425; United Lines Tel. Co. v. Boston, etc., Trust Co. (1893), 147 U. S. 431, 13 Sup. Ct. 396, 37 L. Ed. 231; Buford v. Keokuk, etc., Packet Co. (1879), 69 Mo. 611.
In Bedford Belt R. Co. v. McDonald (1897), 17 Ind. App. 492, 60 Am. St. 172, it was held that where a private corporation has entered into a contract, not immoral in itself and not forbidden by any statute, and it has been in good faith fully performed by the other party, the corporation will not be heard on the plea of ultra vires. 5 Thompson, Corporations, §6026,
*262Prima facie all contracts of corporations, public or private, are valid, and it is incumbent on those who impeach them to show that they are invalid. Smith v. Board, etc. (1893), 6 Ind. App. 153. If there was any doubt about the correct meaning and interpretation of clause sixth of the contract, it is clearified by the seventh. It is there provided that, in consideration of making a T connection, “it is agreed between the parties» hereto that in case any party or parties require said first party to forward stone or other car-load freight to the line of the second party, it is agreed that the proportion of the through freight from any given quarry or station accruing to the party of the first part shall not be less than three cents per hundred pounds.”
Thus it appears that under the contract appellee had access to all such quarries, and was entitled to receive, upon a fixed consideration, freight therefrom to be shipped over its lines. By the terms of the contract appellant was bound to deliver the freight to it. In this regard the rights of the public are protected.
It affirmatively appears from the contract itself that the switches or spurs referred to were additional facilities for handling freight. There was a separate one for each quarry or customer.
The duty of common carriers in regard to receiving freight for transportation is fixed by statute. §5185 Burns 1901, §3925 R. S. 1881. Railroad companies are not required to go off of their lines to get freight for transportation. They have filled the measure of their statutory duty to the public, in that regard, when they have established and continue to maintain fixed places and ordinarily convenient accommodations for receiving and discharging freight. The statute does not impose upon a railway company the duty of establishing a station at any particular place except at crossings, and they are only required to receive freight at the places established for that purpose. See People v. New York, etc., R. Co. (1887), 104 N. Y. 58, 9 N. E. 856, 58 *263Am. Rep. 484; Northern Pac. R. Co. v. Washington Ter. (1892), 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; State, ex rel., v. Kansas City, etc., R. Co. (1899), 51 La. Ann. 200, 25 South. 126, 14 Am. and Eng. R. R. Cas. N. S., 461; State v. Des Moines, etc., R. Co. (1893), 87 Iowa 644, 54 N. W. 461, 8 Am. R. R. and Corp. Cas., 1; Florida, etc., R. Co. v. State, ex rel. (1893), 31 Fla. 482, 13 South. 103, 20 L. R. A. 419, 34 Am. St. 30, 8 Am. R. R. and Corp. Cas. 94.
In Louisville, etc., R. Co. v. Flanagan (1888), 113 Ind. 488, it was held that a railroad company was not liable for failing to furnish cars, and for not transporting goods, unless goods are offered at a regular depot, or other usual or designated place for receiving freight. 3 Wood, Railway Law, p. 1580.
It logically follows, from what I have said and the authorities, that a railroad company owes no duty to a shipper or the public to receive freight at any place other than that provided for that purpose.
An able and exhaustive discussion of the question now under consideration will be found in the following cases: Atchison, etc., R. Co. v. Denver, etc., R. Co. (1884), 110 U. S. 667, 682, 28 L. Ed. 291; Missouri, etc., R. Co. v. Carter (1902), (Tex.), 68 S. W. 159, 26 Am. and Eng. R. R. Cas., N. S., 538.
But, if that clause of the contract which seeks to prohibit the junior company from running any switches or spurs to stone-quarries, with which the senior company was then connected, etc., is invalid, as being against public policy and in restraint of trade, does it necessarily follow that it vitiates the entire contract ? If that provision of the contract is void, then no inhibition is placed upon appellee from connecting its line of road with such stone-quarries by switches. If that provision can be eliminated without destroying the contract, then the remaining provisions may be enforced.
*264Aside from the consideration, expressed in that provision, a valuable consideration moved to the junior company in its acquirement of the right to cross the senior company’s tracks and right of way. By agreeing to let it so cross, it was relieved from proceeding under the statute; also from the assessment of damages and the payment thereof. A valuable consideration passed to the senior company, in that the junior company agreed to construct, equip and maintain an interlocking switch, so as to permit the uninterrupted and safe running of its trains over the crossing. These considerations were both legal and valuable, so that if the consideration expressed in the sixth clause of the contract was illegal, there is sufficient and valid consideration in other provisions to support the contract.
It is the law that where valid and illegal considerations in the same contract are susceptible of division, or distinction, that part of the consideration which is legal may be enforced. Pierce v. Pierce (1897), 17 Ind. App. 107; Emshwiler v. Tyner (1899), 21 Ind. App. 347, 69 Am. St. 360.
The recent case of Trentman v. Wahrenburg (1903), 30 Ind. App. 304, is directly in point. That was an action on a contract, where the defense interposed was that it was void because it was in restraint of trade. The court said: “But if appellees’ contention should be sustained — which it cannot — still as the complaint does not aver that this part of the contract has been violated, the contract being divisible, that part of it which is legal could be enforced.”
Quoting from Oregon Steam Nav. Co. v. Winsor (1873), 87 U. S. 64, 22 L. Ed. 315, it is said: “It is laid down by Chitty as a result of the cases, and his authorities support the statement, That agreements in restraint of trade, whether under seal or not, are divisible; and accordingly, it has been held that when such an agreement contains a stipulation which is capable of being construed divisibly, and one part thereof is void as being in restraint of trade, *265whilst the other is not, the court will give effect to the latter, and will not hold the agreement void altogether.’ ”
So, if it be conceded that clause sixth of the contract is invalid, all of its other provisions are valid, and as that which is valid is divisible from that which is invalid, if in fact it is, the valid provisions may be enforced. And it is worthy of remark, in this connection, that appellant is only seeking to enforce that provision of the contract about which there is no question as to its validity.
This action is to enforce that part of the contract by which the junior company agreed to construct and maintain an interlocking switch. It is not, and could not be, in law or reason, contended that the two companies could not make that agreement. That agreement rests upon a sufficient consideration.
In this action no right or benefit is claimed or asserted under subdivision sixth of the contract. As it must be conceded that the provision of the contract here sought to be enforced is valid, the fact that some other provision, as asserted by appellee, is invalid, the contract being sustainable regardless of such asserted invalid provision, relief should be given to the end that that part of the contract which is valid might be enforced, and the rights and equities of the parties preserved. City of Valparaiso v. Valparaiso City Water Co. (1903), 30 Ind. App. 316.
In the case of Hitchcock v. City of Galveston (1877), 96 U. S. 341, 24 L. Ed. 659, is a very able discussion of the question we are now considering. That action grew out of a contract between appellant and appellee, by which the former agreed to improve and pave certain streets, and the latter agreed to make payment in certain bonds. The contention of the appellee was that the city had no right to issue bonds for that purpose, and that therefore the whole contract was inoperative and void. It was held that if the city had no authority to issue bonds, it did not follow that the contract was wholly illegal and void or that the plaintiff *266had no right under it. The court said: “They are not suing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city promised to pay; and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. * * * The contract between the parties is in force, so far as it is lawful. * * * Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform what it promised in return, in the mode in which it promised to perform.” The case of Nebraska City v. Nebraska City, etc., Coke Co. (1879), 9 Neb. 339, 2 N. W. 810, was where the appellee sued appellant to recover the contract price of gas furnished the city for a certain month. The city defended on the ground that the contract contained certain illegal provisions respecting the exemption of property from taxation, etc. It was held that, admitting that in the particulars designated the city authorities exceeded their powers, which was not decided, that would be no defense to the action; that under the charter they were authorized to contract for lighting the streets with gas, and to bind the city for the price agreed upon; and that so long as the city voluntarily received gaslight, under the provisions of the contract, it could not resist payment of the agreed price simply because of the alleged illegal promises as to the particular fund from which the money should he drawn. The court said: “The consideration for which these promises were made being entirely legal, and the price agreed upon being *267payable, if not otherwise, from its general fund, these objectionable provisions may, if necessary, be rejected, and the rest of the contract permitted to stand; especially where, as here, the city has received the consideration for which the promises were made. Chitty, Contracts, 574. If the company were resisting a tax levied in violation of this agreement, or if they were endeavoring to compel payment of a gas bill out of the sinking fund, the argument of counsel for the city in this behalf would be entitled to great weight, but under the issues of this case we deem it altogether inapplicable.” Argenti v. City of San Francisco (1860), 16 Cal. 255, 264; City of Brenham v. Brenham Water Co. (1887), 76 Tex. 544, 4. S. W. 143; Dodge v. City of Council Bluffs (1881), 57 Iowa 560, 10 N. W. 886; Maher v. City of Chicago (1865), 38 Ill. 266.
This is not an action to enforce any right under the sixth subdivision of the contract, but to secure to appellant the consideration moving to it in the promise to construct, etc., an interlocking switch. In other words, it is an action to require appellee to do that which it agreed to do, and which it had an unquestioned right to bind itself to do.
It will be time to consider any question that may arise affecting the rights of the parties or the public, as fixed by the sixth subdivision of the contract, when that question is presented.’ It is not before us now. That clause of the contract may be eliminated, and the contract be enforced as to the immediate rights of the parties under it.
It is far more important to protect life and property by requiring appellee to comply with its contract to erect and maintain an interlocking switch, and more to the interest of the public, than it is to seek the aid of courts to annul a part of the contract under which the complaining party is not seeking redress, but by which it secured all the rights it desired, and still continues to enjoy such rights.
In Russell v. Pittsburgh, etc., R. Co. (1901), 157 Ind. 305, 55 L. R. A. 253, 87 Am. St. 214, the court quotes ap*268provingly from Baltimore, etc., R. Co. v. Voigt (1900), 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, the following: “It must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appears that they contravene public right or the public welfare.”
One who seeks to put restraint upon the freedom of contract must make it plainly and obviously clear that the contract in question is void. Payne v. Terre Haute, etc., R. Co. (1902), 157 Ind. 616, 56 L. R. A. 472.
Common honesty, good conscience and well-settled principles of equity demand that appellee should perform the burdens of its contract while it continues to enjoy the benefits and fruits derived from it.
The judgment should he reversed, and the court below be directed to overrule the demurrer to each paragraph of the complaint.