*565On Petition for Rehearing.
Hadley, J.3. It is urged in the petition for a rehearing that we did not pass upon the question raised as to the sufficiency of the complaint. We have considered the complaint, and find that, while it seeks to show that an easement to pass indiscriminately over the right of way between Ohio and Indiana streets by setting out that portion of the decree set out and construed in the former opinion, and while under our construction of that decree an easement to pass indiscriminately over the right of way is not given, it does grant free access to the depot and streets as defined in that opinion. The complaint does aver that the fence or barrier that appellant threatens to erect will prevent such free access, and, by so doing, will commit great and lasting injury to appellee that cannot be compensated in damages. In our opinion this, with the other averments, states a good cause of action. The demurrer was properly overruled.
4. 5. Appellee also contends that if the fence is constructed as proposed it would completely destroy appellee’s ways to the depot from the south, and prevent the loading and unloading of freight at the depot. No such suggestion was made in the original brief, and there is no evidence in the record that shows this state of facts. We do not hold that appellant may so build its fence as to present such a condition, as this would be the prevention of ' ‘ free access. ’ ’ There must not only be ‘ access, ’ ’ but it must be “free,” as defined in the original opinion.
Appellee also seeks to inject into the decree of 1901 certain mutual understandings and agreements in parol. There is no averment in the pleadings to warrant this.
The petition for a rehearing is overruled.