author: Davis, J.

text:
    The Wheeling and Lake Erie Railroad Company v. Koontz et al.

      Sale and delivery of goods — Vendor may stop goods in transitu, when — Consignee sells undelivered goods to common carrier for unpaid freight — Carrier not a bona ñde purchaser.

    1. When goods have been shipped by common carrier, and have arrived at the point of destination, and notice thereof has been given to the consignee, who does not pay the freight •nor indicate an intention to receive the goods, and the goods thereafter remain in the custody of the carrier without any agreement that the carrier shall hold the same as agent or warehouseman for the consignee, there is no delivery to the consignee, and the vendor may recover the goods by stoppage in transitu.

    2. A sale by the consignee to the carrier, under such circumstances, in consideration of the unpaid freight on such goods, and other pre-existing debts, does not constitute the carrier a bona fide purchaser.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Lucas county.
    The defendants in error sued the plaintiff in error, before a justice of the peace, for a conversion of one car-load of lumber, and obtained judgment. An appeal having been taken to the court of common pleas, the plaintiffs below filed their petition, setting forth that the defendant connects with the Ohio River Railroad at Wheeling, West Virginia; that on or about February 1, 1895, they delivered to The Ohio River Railroad a car of lumber to be carried to the city of Toledo, Ohio, via defendant’s line of railway for a compensation to be paid at the determination of the carriage; that the lumber was carried over the defendant’s road and arrived in Toledo about Feb. 5, 1895, and remained in possession of the defendant up to and after February 21, 1895, at which time the consignee of said lumber, The Gashe Lumber Company, was insolvent and has remained so since that date; that said lumber had been sold to The Gashe Lumber Company on credit, and that the purchase price has not been paid; that on February 21, 1895, the plaintiffs gave notice to the defendant of stoppage in transit and requested it to hold the lumber subject to the order of the plaintiffs; that they demanded possession of defendant and tendered the amount claimed by defendant to be due for freight, but defendant refused to give possession of the lumber and has converted the same to its own use; and that the lumber was reasonably worth, after allowance for the freight thereon, the sum of |262.00.
    The answer of defendant admitted that on or about February 5, 1895, the said car of lumber was by it transported to Toledo, and alleged that on or about the 7th day of February, 1895, it delivered the lumber to the said Gashe Lumber Company; and that after said delivery The Gashe Lumber Company sold the same to the defendant and the same thereby became the property of the defendant.
    The plaintiffs replied, denying that the car of lumber was ever delivered to The Gashe Lumber Company) and alleging that it was in the exclusive possession of defendant as a common carrier to and after February 21, 1895; that said company was insolvent on February 7,1895, and that defendant knew it; that the alleged sale did not take place until after February 9, 1895, on which date a receiver was appointed for The Gashe Lumber Company, and that the only consideration for such sale was the reduction of the then existing debt of The Gashe Lumber Company to the defendant. It is further stated in the reply that The Gashe Lumber Company obtained the lumber on credit by falsely and fraudulently representing that it was solvent and able to pay for the lumber when the credit expired, and that on February 21, 1895, on learning of the insolvency of said lumber company, they elected to rescind said sale and retake said lumber, and on that day notified the defendant to hold the lumber subject to the order of the plaintiffs.
    The court of common pleas, there being an agreed statement of facts and a jury being waived, found for the plaintiffs and rendered a judgment against the defendant, The Wheeling and Lake Erie Railway Company, for $295.41, with interest and costs. This judgment was affirmed by the circuit court; and the case comes into this court by petition in error to reverse the judgment of the circuit court and of the common pleas.

      Swayne, Hayes & Tyler, for plaintiff in error.
    1. It is conceded that the lumber in controversy was sold by the plaintiffs to The Gashe Lumber Company upon credit. Therefore, the absolute title thereto and the right to the possession thereof passed to and vested in the vendee. Benjamin on Sales, 6th Ed., Sec. 677.
    2. A sale of goods upon credit vests in the vendee the absolute title thereto, which is not divested by reason of his insolvency or failure to pay the contract price therefor.
    3. A sale of goods upon credit vests in the vendee the right to the immediate possession thereof, and of this right he may be divested if, before the goods are in his actual or constructive possession, he becomes insolvent. Bloxam v. Sanders, 4 B. & C., 941.
    4. It is conceded that the plaintiffs delivered the lumber in controversy to a common carrier for transportation to the vendee, The Gashe Lumber Company, of Toledo, Ohio.
    It is well settled that when the vendor assumes or undertakes to send goods to the vendee a delivery thereof to a common carrier is a delivery to the purchaser. Emery’s Sons v. Bank, 25 Ohio St., 360; Wigton v. Bowley, 130 Mass., 252.
    5. From these principles of law and conceded facts it is evident that when the plaintiffs delivered the lumber they had sold on credit, to the railway company, for transportation, the absolute title thereto and the right to the possession thereof vested in The Gashe Lumber Company.
    It is, however, well settled that, in every sale upon credit there is implied an agreement that the buyer shall remain solvent until the goods purchased come into his possession, and a breach of this implied agreement revests in the vendor the right of possession for the sole and only purpose of enabling him to enforce his lien for the contract price. It is upon this principle that the doctrine of stoppage in transitu is based. Benjamin on Sales, Section 828; Penna. Co. v. American Oil Works, 126 Pa. St., 485.
    6. In order that the right of stoppage in transitu may be exercised, the goods must be in transit; that is, in the possession of the carrier as carrier. Benjamin on Sales, section 841.
    7. The right of stoppage in transitu cannot be exercised after the goods have come into the actual or constructive possession of the vendee. Hutchison on Carriers, section 416a. Benjamin on Sales, Sec. 839.
    A failure to observe the different senses, in which the words “constructive possession” and. “constructive delivery” are used by the courts, has led to some confusion. Am. & Eng. Ency. Law, 908.
    There are many cases illustrative of the well-recognized principle of law that even a constructive delivery by carrier to the consignee will defeat the vendor’s right of stoppage in transitu. Foster et al. v. Frampton, 6 B. & C., 111; Whitehead v. Anderson, 9 M. & W., 518; Langstaff et al. v. Stix et al., 28 A. & E. R. R. Cases, 85; Williams et al v. Hodges et al., 18 S. E. Rep., 83; Wright v. Lawes, 4 Esp., 82; Hutchinson on “Carriers,” section 417.

      Marshall & Fraser, for defendants in error.
    1. What is the right of stoppage in transit? Benjamin on Sales, section 828 (Bennett’s Edition); Diem v. Koblitz, 49 Ohio St., 41.
    2. In what favor is this right held? Calahan v. Babcock, 21 Ohio St., 281; Cabeen v. Campbell, 30 Pa. St., 254; Benjamin on Sales, Sec. 830 (Bennett’s Edition); Morris v. Shyrock, 50 Miss., 590; Harris v. Pratt, 17 N. Y., 249; Anderson v. Fish, 16 Ont., 476; Lewis v. Mason, 36 U. C. Q. B., 590; Kingman v. Dennison, 48 N. W. Rep. (Mich.) 26; Inslee v. Lane, 57 N. H., 454.
    3. What will cut off the right of stoppage in transitu?

      (a) The right of stoppage in transitu is not cut off or defeated by an attachment or other legal process issued on behalf of a creditor of the vendee.
    This decision is supported by all the authorities of which we cite: Kitchen v. Spear, 30 Vt., 545; O’Brien v. Norris, 16 Md., 122; Blum v. Marks, 21 La. Ann, 268; Clark v. Lynch, 4 Daly (N. Y.), 83; Mississippi Mills v. Bank, 9 B. J. Lea (Tenn.), 314; Cox v. Burns, 1 La., 64; Blackman v. Pierce, 23 Cal., 509; Wood v. Tateman, 15 Mon. (Ky.), 270; Rucker v. Donovan, 13 Kan., 251; Agmire v. Parmalee, 22 Conn., 473; Sherman v. Rugee, 55 Wis., 346; Seymour v. Newton, 105 Mass., 272; Durgy Cement Co. v. O’Brien, 123 Mass., 12; Covell v. Hitchcock, 23 Wend. (N. Y.), 611.

      (b) The right continues, although the carrier at the end of his route has put the goods into his own warehouse or into a public warehouse preparatory to delivery to the consignor upon payment of freight and charges. Hoover v. Tibbits, 13 Wis., 79; More v. Lot, 13 Nev., 376; Halff v. Allyn, 60 Tex., 278; Clapp v. Peck, 55 Ia. 270; O’Neill v. Garrett, 6 Ia., 480.

      (c) When the goods have reached the end of the route and have been put into the hands of the vendee’s agent, whether warehouseman or other agent, although not' quite delivered at such vendee’s store or place of business, the transit is at an end and the right of stoppage gone. McFetridge v. Piper, 40 Ia., 627; Lane v. Robison, 18 B. Mon. (Ky.), 623; Brooke Iron Co. v. O’Brien, 135 Mass., 442.

      (d) A demand for the goods by the vendee from the carrier does not cut off the right of stoppage.
    (e) Without actual or constructive delivery an offer or even payment of freight does not avail to cut off the right. Sc. 17 App. Rep., 28; Mottram v. Heyer, 5 Denio (N. Y.), 629; Donath v. Broomhead, 7 Pa. St., 301.

      (f) The mere arrival of the goods at the town or city of the buyer, if they still remain in the hands of the carrier, as carrier, does not terminate the right of stoppage. White v. Mitchell, 38 Mich., 390; Greve v. Dunham, 60 Ia., 111.

      {g) A vendor’s right of stoppage in transitu is not terminated by the goods coming to the hands of a shipping agent appointed by the vendee. The transit continues until the goods come into the possession of the vendee or of some agent authorized to act in respect to the disposition of them otherwise, and by forwarding them to the vendee. Hays v. Mouille, 14 Pa. St., 48; In re Foote, 11 Blatch U. S., 530; Holbrooke v. Vose, 16 Bosw. (N. Y.), 76.

      (h) But where new orders to the agent from the vendee are necessary to put the goods in motion, the right is cut off. Kendall v. Stevens, L. R., 11 Q. B. Div., 356.
    (i) Whether a delivery of part of the goods will cut off the right of stoppage as to the remainder, must depend upon the facts of each case. Tanner v. Scovill, 14 Mess. & W., 28; Secomb v. Nutt, 14 B. Mon. (Ky.), 324; Buckley v. Furniss, 17 Wend. (N. Y.), 504.

      (j) A notice of stoppage given by an unauthorized person is good, if ratified by the consignor before the consignee makes a proper demand for the goods. Cement Co. v. O’Brien, 123 Mass., 12.
    But not if ratified after a proper demand for the goods by the consignee; for the carrier cannot prolong the transitus and so extend the time for stoppage.
    (7c) The right is not cut off, though the vendor be partly paid or have the notes or acceptances of the insolvent consignee for the price. Lewis v. Mason, 36 U. C. Q. B., 590; Feise v. Wray, 3 East, 93; Edwards v. Brewer, 2 Mess. & W., 375; Diem v. Koblitz, 49 Ohio St., 41.
    (7) While stoppage in transitu is an adverse proceeding and must be exercised adversely to the consignee, that is, it must not be asserted under a title derived from the vendee, still it need not be asserted in hostility to the vendee. Cox v. Burns, 1 La., 64; Naylor v. Dennie, 8 Pick. (Mass.), 198.

      (m) Lapse of time between the sale of the goods and notice of stoppage does not defeat the right.

      (n) The entry of goods at custom house by the vendee for the payment of duties, does not terminate the right of stoppage in transitu. In such case, goods are in the possession of the United States or their officers. Fraschieris v. Henriques, 6 Abb. Pr. N. S., Rep; Mottram v. Heyer, 5 Denio, 629; Harris v. Hart, 6 Duer. (N. Y.), 606; Parker v. Byrnes, 1 Lowell (U. S.), 539; In re Bearns, 18 Bankruptcy Reg., 500.
    (o) Where the vendee intercepts the goods on their passage to him, and takes possession as owner, the delivery is complete, and the right of stoppage is gone. Sacomb v. Nutt, 14 B. Mon. (Ky.), 324; Wood v. Yeatman, 15 B. Mon. (Ky.), 270; Stevens v. Wheeler, 27 Barb. (N. Y.), 658.
    But the right of stoppage is not determined if the interception by the vendee is not made in good faith. Pool v. Railway Co., 58 Tex., 334.

      (p) A mere sale of property, unaccompanied by delivery, or by anything in legal contemplation operating as a change of possession, will not divest the right of the vendor to stop the goods. The purchaser from the vendee, in such case, takes only the vendee’s right, subject to the contingency which may, before the goods are received, entitle the original vendor to resume the possession and hold it until the price be paid. Isley v. Stubbs, 9 Mass., 65; Wait v. Scott, 6 Grants Sc., 5 Ch. & App. Rep., 154.
    If the consignee sells the goods and the purchaser buys them in good faith for a valuable consideration, and obtains possession, the vendor has no claim upon such purchaser. U. S. Wind Engine Co., v. Oliver, 16 Neb., 612.
    The right of stoppage is cut off by a re-sale when the vendee obtains the goods and sends or delivers them to a second vendee. Eaton v. Cook, 32 Vt., 58.
    And it is cut off when the vendor consents to a resale. Stoveld v. Hughes, 14 East., 308; Rowley v. Bigelow, 12 Pick., 307.
    Even if there is a delivery to a second vendee the right of stoppage is not cut off if the second vendee is not a bona fide purchaser from the original vendee. Rosenthal v. Dussau, 11 Hun. (N. Y.), 49; Chandler v. Fulton, 10 Texas, 2.
    (q) Constructive delivery.
    There is a constructive delivery to the vendee when the carrier, by agreement between himself and the vendee, undertakes to hold the goods for the vendee, not as carrier, but as his agent. Ex-parte Cooper L. R., 10 Chan. Div., 313; Coventry v. Gladstone, L. R. 6 Eq. Cases, 44; Reynolds v. Railroad, 43 N. H., 580; Hoover v. Tibbitts, 13 Wis., 79; Farrell v. Railroad, 102 N. C., 390.

    We have seen that even if there is a delivery to the second vendee, the right of stoppage is not cut off if the second vendee is not a bona fide purchaser from the original vendee.
    The sale in this case was clearly not for a valuable consideration. Eaton v. Davidson, 46 Ch. St., 355; Grever v. Taylor, 53 Ch. St., 621. retake the goods. Loeb v. Peters, 63 Ala., 243.
    We claim, that our right to retake the goods and to re-establish our vendor’s lien is analogous to the right of a defrauded vendor to rescind the sale and retake the goods. Loeb v. Peters, 63 Ala., 243.
    The carrier in this case was the agent of the vendor.
    The sale in this case from the vendee to the carrier was not good as against the vendor, for the reason that an agent cannot deal for his own interest in the matter of the agency. Jansen v. Williams, 20 L. R. A. (Neb.), 207; Tyler v. Sanborn, 4 L. R. A. (Ill.), 136; McNutt v. Dix, 10 L. R. A. (Mich.), 660.
    The common carrier is estopped from setting up title in himself as against either of the contracting parties. Kent’s Comm., Vol. 2, page 604; Story on Bailments, Sec. 582; Hutchison on Common Carriers, Sections 129, 414; 2 Waits Actions and Defenses, 557; Farrell v. Railroad, 102 N. C., 390; Pharr v. Collins, 35 La. Ann. Rep., 939; Edwards v. Powell, 1 Dev. N. C., 190.
   Davis, J.

The only right of the vendors, under the facts appearing in this case, if any, was to recover the possession of the cat-load of lumber by stoppage in transitu. This they might do at any time while the lumber remained in the possession of the carrier, as carrier. It had been carried to its destination, but it is not claimed that any manual delivery had been made to the consignee. There was no delivery to the consignee unless it was by construction. The facts which are claimed to constitute a constructive delivery, as they appear in an agreed statement of facts, are that the car arrived at its destination, Toledo, Ohio, on February 2, 1895; that the carrier notified the consignee of the arrival of the lumber and that thereafter, up to and including February 7, 1895, the car, with the lumber remaining thereon, remained upon the yard track of the defendant in Toledo, for delivery to the consignee; and that on or about the 7th day of February, 1895, the consignee sold the said car of lumber to the defendant for the sole consideration of a pre-existing indebtednéss, which consisted of the freight charges on the carload of lumber in question and other indebtedness. These facts show no delivery, either manual or constructive, unless the sale by the consignee to the defendant implies it. It does not appear that the consignee paid the freight or in any manner put himself in position to demand and enforce the possession of the lumber; nor does it appear that there was any agreement between the consignee and the defendant by which the former assumed the possession of the lumber and constituted the latter his agent to hold and care for the same. But in the absence of these necessary indications of a constructive delivery to the consignee, the defendant retained the custody and control of the property under a sale which is based partly on the consideration of the freight thereon, which must have been paid before a delivery could be presumed to have taken place, and partly on the consideration of other pre-existing debts, Avhich were admitted by counsel on the oral argument to consist also of unpaid freight bills. Such a sale Ave do not think would constitute the defendant a bona fide purchaser; and we are of the opinion that the lumber Avas still in transit at the time when the plaintiffs gave notice of stoppage in transitu and tendered to defendant the freight due to it for the transportation of the lumber. The case having been twice reported heretofore (5 N. P., 15; 15 C. C., 288) it is unnecessary to review the authorities cited by counsel, nor to cite others.

The judgment of the circuit court is affirmed.


source: Caselaw Access Project

author: Burkett, J.

license: Public Domain

text:
    Miller v. Wisenberger.

      Ohio Canal system — Possession and use of lands and streams m construction of — When merely incidental or indirect — May not vest fee in the state — Rights of landowner and state — Backing of water from dam does not cause appropriation of land .by state, when.

    1. Where the possession and use of lands or streams in the construction of the Ohio canal system were merely incidental, constructive or indirect, and not of a character to fairly apprise both the officers of the state and the owners of the lands, that such lands or streams were appropriated and used in the construction of the canals, no fee to such lands or streams vested in the state.
    2. Section 8 of the canal act of 1825 should be so construed as to fairly carry out the intention and understanding of the officers of the state on the one hand, and the land owner on the other, in each case, as near as the same can be ascertained from what was done, and the situation and surroundings of the premises in question.
    3. The mere incidental backing of water up a stream caused by the erection of a dam across a river, used as a part of the canal system, such stream flowing into said river and remaining in a state of nature, except as slightly raised by such back water, does not constitute such an appropriation and use of the bed of the stream for canal purposes as to vest the fee of such stream in the state.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Defiance county.
    The action was brought before a justice of the peace and appealed to the court of common pleas, where a petition was filed by the plaintiff below, defendant in error here, for trespass upon real estate and the removal of a boat load of sand taken from a sand bar near the west bank of the Auglaize river. The answer denied that the plaintiff was the owner of the premises, and averred that the premises, the bed of the river, were owned by the state of Ohio as a part of its canal system, and that the defendant was authorized by the state to take and remove the sand in question. The reply denied the averments of the answer.
    A jury was waived and the cause was heard by the court upon an agreed state of facts, and upon the request of the parties the court found its conclusions of fact separate from its conclusions of law.'
    Conclusions of Fact.
    “1. That, on the 9th day of August, 1824, the lands described in the petition, were duly granted by the United States of America, to one Horatio G. Phillips, his heirs and assigns, in fee simple, forever. That, on the 19th day of October, 1853, the said Horatio G. Phillips, duly conveyed to one Juliet H. Bouton, her heirs and assigns, in fee simple, forever, one hundred (100) acres of said land, more or less, together with all and singular the privileges and ap: purtenances thereunto belonging, that portion of said land so conveyed, being bounded on the south and east by the Auglaize river.

      “2. That the sand bar, hereinafter mentioned and referred to, is situated in channel of said Auglaize river, on the east side of said lands so conveyed by the said Phillips, to said Bouton, and between low-water mark, along the the east side of said lands, and the central thread of the stream of said river.
    “3. That said Auglaize river flows, in a general northerly direction, from the south line of said land conveyed to the said Bouton, as aforesaid, to the Maumee river, where at a distance of about one (1) mile north from said sand bar it empties into said Maumee river. That said Maumee river is formed by the junction of the St. Joseph and St. Marys rivers, at the city Ft. Wayne, Indiana, from whence it flows, in a general northeasterly direction, to Maumee Bay, into which it empties, at or near the city of Toledo, Ohio.

      “4. That, between the years of 1837 and 1842, the canal commissioners of the state of Ohio, as a part of the canal system of said state for the purpose of making slack-water for the Wabash and Erie canal, now part of the Miami and Erie canal, and forming a reservoir and feeder therefor, constructed a dam across the said Maumee river, at a distance of about three and one-half (3-J) miles below the place where said Auglaize river empties into said Maumee river, and following the course of said rivers, at the distance of about four and one half (4J) miles below said sand bar, the said sand bar being situated about one (1) mile above the place where said Auglaize river empties into said Maumee river.
    “5. That said canal was constructed to and does enter and unite with the Maumee river at a distance of about 1500 feet above and west of the place where said Auglaize river empties into said Maumee river; that, by the construction of said dam, slack water was made in said Maumee river to above, west and beyond the place where said canal enters it, and said Maumee river has ever since been and is used for slack water navigation, as a part of said canal, from the place where said canal so enters said river, to about 1,500 feet above and east of said dam, at Independence, where said canal leaves said Maumee river, and runs thence, outside of the channel of said river to Texas, a distance of about twenty-six (26) miles from said place where it leaves said river at Independence. That the whole of said twenty-six miles of canal, from Independence to Texas, was constructed to be, and is wholly supplied with water by and from the slack water, feeder and reservoir formed by said dam at Independence, by means of a feeder with feeder gates, from said Maumee river to said canal, constructed and situated between the place where said canal leaves said river and said dam at Independence. That said Maumee river at the place where it is entered by said canal is between 400 and 500 feet wide, and is wider from thence to said dam at Independence; and the tow-path of said canal, between the places where it so enters and leaves said river, extends along the north side thereof, and on the opposite side thereof, from that at which said Auglaize river empties into it.
    “6. That said dam was not intended or constructed for the purpose of making slack water navigation in said Auglaize river, but no artificial barriers were ever constructed between said Auglaize and Maumee rivers, or in or across said Auglaize river, between the place where the same empties into said Maumee river and the south line of said lands so granted to said Phillips as aforesaid. That, at the time of the construction of said dam, there was a certain road and public highway on the lands aforesaid, which extended through and crossed said Auglaize river at the distance of about twelve hundred feet above, beyond and south of said sand bar by means of a certain ford in, through and across said river; and the west bank of said Auglaize river, along the east side of the lands aforesaid, and at and opposite said ford and sand bar, was a gradually sloping bank. That, by the construction of said dam, the waters of said Auglaize river were, ever since have been, and still are raised, and set back from the place where the same enters the Maumee river, as aforesaid, and made, and kept two and one-half feet deeper than they theretofore were, in the channel of said Auglaize river, along the east side of the lands aforesaid, and at and over the places where said ford was, and where said sand bar is situated; and low-water mark on the west bank of said river, along the east side of the lands aforesaid, and at and opposite to said sand bar and ford raised and set further back from the central thread of said river. That, by the construction of said dam, and the consequent raising and deepening of the waters of said Auglaize river, at and over .said ford as aforesaid, said ford and public road and highway across said river was destroyed, and was, and ever since has been and is made impassable and useless; but, it does not appear herein, that by the construction of said dam, or the consequent raising and deepening of the Avaters of said Auglaize river, the waters of said river were, or are, or ever have been set back or caused to flow beyond and west of said sloping'west bank of said river, or over or upon the lands aforesaid, or any part thereof, which was then or are now situated to the westward of the west line of said sloping west bank of said Auglaize river.
    “7. That on the 15th day of May, 1891, the said Juliet H. Bouton, for and in consideration of the sum of fifty dollars ($50.00) to her in hand paid by the plaintiff, duly granted to said plaintiff, the exclusive right, in so far as she had the same, to take, and remove sand and gravel from said sand bar for the period of one year, beginning on said 15th day of May, 1891, and ending on the 15th day of May, 1892.
    “S. That all the aforesaid facts, touching the construction of said canal and said dam, and the effect thereof, in setting the said low-water mark on the west bank of said Auglaize river, along the east side of said lands, back from the center of said river, and raising and deepening the waters of said river, where said lands are bounded thereby, and at the place where said sand bar is situated, the said Phillips, at all times after the construction of said dam and during his ownership of said lands, and the said Bouton, at and at all times after the conveyance of said lands to her, and the said plaintiff, at and at all times since the granting by the said Bouton to him, of said exclusive right to take and remove sand and gravel from said sand bar, had full notice and knowledge.
    “9. That, ever since the said conveyance to her, of the lands aforesaid, the said Juliet H. Bouton and her licensees, have taken and removed sand and gravel from the bed of said Auglaize river, between the central thread of the stream and low-water mark on'the west bank of said river, along the east side of the lands aforesaid, but of this fact neither the state, nor its officers, had any knowledge.
    “10. That, in the month of October, 1891, the defendant, George Miller, took and removed from said sand bar between low-water mark, on the west bank of said Auglaize river, along the east side of the aforesaid lands of said Bouton, as low water line was fixed by the construction of said dam at Independence and the central thread of the stream of said river, and from under and beneath the slack water made in said river, by said dam at Indpendence, 2,100 bushels of sand, Which was then and there of the value of one and one-half cents per bushel, amounting to thirty-one dollars and fifty cents ($31.50).”
    Upon the facts so found the court rendered judgment in favor of the plaintiff below for $31.50 and costs, to which the defendant excepted and took and filed a bill of exceptions embracing the facts as agreed upon by the parties. A motion for a new trial was filed and overruled, to which proper exceptions were taken.
    The circuit court affirmed the judgment, and thereupon the plaintiff in error, defendant below, filed his petition in error in this court, seeking to reverse the judgments of the courts below.

      Harris & Cameron, for plaintiffs in error.
    In Ohio each riparian land owner along a navigable river owns to the middle of the stream, subject to the easement of navigation. Gavit v. Chambers, 3 Ohio, 496; Lembeck v. Nye, 47 Ohio St., 348.
    At the time of building the canal and down to October 19, 1859, Mr. Phillips, and since then Mrs. Bouton, have owned to the center of the Auglaize river, unléss the title to so much thereof as was overflowed and water set back on for canal purposes was vested in the state by the occupation of the premises for canal purposes. Barney v. Keokuk, 94 U. S., 338; Polker v. Bird, 137 U. S., 672; Hardin v. Jordan, 140 U. S., 763; Scranton v. Wheeler, 6 C. C. A., 592, et seq; Railway Co. v. Butler, 159 U. S., 86; 2 Blk. Com., 18; 1 Kent’s Com., p. 3, note.
    That there is an easement for the purpose of a waterway over the water does not affect the title. Goodtitle v. Alkire, 1 Burr., 133; Winton, Lessor v. Cornish, 5 Ohio, 477.
    If it were possible that a fee simple estate could be enquired in premises devoted to canal purposes, the state took title to an estate in fee simple therein and not a lesser estate, or an easement. Mayor of Hoboken v. Pa. R. R. Co., 124 U. S., 656; Ill. R. R. Co. v. Ill., 146 U. S., 387; Shively v. Bowlby, 152 U. S.; Kankauna Water Power Co. v. Green Bay, etc., 142 U. S., 254; Lessee of Blanchard v. Porter, 11 Ohio, 138; 2 Blk. Com., 18; Tyler on Ejectment, p. 43; Matter of N. Y. C. & H. R. Ry. Co., 77 N. Y., 248; Dens v. Wright, 1 Peters C. C., 64; Dunlap v. Steston, 4 Mason’s Rep., 349; Storer v. Freeman, 6 Mass., 435; 3 Kent’s Com., 427; Carpenter v. State, 12 Ohio St., 457; Ryan v. Brown, 18 Mich., 186; Zemlock v. U. S., 73 Wis., 363; Cornelius v. Glenn, 7 Jones, 321; 2 Chase Stat., p. 1175.
    This statute follows the New York Canal Act, which is said to have been modeled after the English statute of 52 Geo., III Ch. 47, which was construed by the Court of King’s Bench in The King v.The Comrs. of the Navigation, 5 Ad. & El., 804.
    When the state takes land for its own purposes, it is presumed to take in fee. Craig v. Mayer, 53 Pa., 477; Randolph Em. Dom., Sec. 205; Nelson v. Fleming, 56 Ind., 310; Holdman v. Penn. R. R., 50 Pa. St., 425; Mill’s Em. Dom., Sec. 50.
    When the statute prescribes that a fee shall vest, neither a less estate than a fee simple nor an easement may be taken, if it is possible to acquire a fee. Randolph Em. Dom., Sec. 203; Lewis Em. Dom., Sec. 278; Roanoke v. Beckowitz, 80 Va., 616; Watson v. Asquackanonck Co., 36 N. J. L., 195; DeKamp v. R. R. Co., 47 N. J. L., 43; 47 N. J. L., 518; Water Works Coms. v. Amsterdam, 96 N. Y., 351; Park Com. v. Armstrong, 45 N. Y., 234; Ohio ex rel. v. Railway Co., 53 Ohio St., 243; Idem, 247; Cooper v. Williams, 4 Ohio, 230.
    First — The place from which said sand was taken is part of the canal system because it is part of the slack-water improvement.
    The Wabash and Erie canal was built under the act of February 4, 1825 (2 Chase, 1470), and the amendments and supplements thereto, viz: Act of December 31, 1831 (3 Chase, 1915), Ordering Canals from Dayton to Defiance; February 13, 1832 (3 Chase, 1917), Making Act of 1825 Applicable to all Canals; March 3, 1834 (32 O. L., 439), Accepting Lands for Wabash and Erie Canal; March 3, 1834 (32 O. L., 308), Establishing Wabash and Erie Canal; March 3, 1834 (1 Cur., 149), Extending Time for Obtaining Compensation; March 4, 1836 (1 Cur., 231), Commissioners Superceded by Board of Public Works; March 16, 1838 (1 Cur., 431), Board of Canal Commissioners Revived; and the act of February 4, 1825, Revived; February 4, 1839 (1 Cur., 504), Extending Provisions of Sec. 8, act 1825, to all Public Works Under Charge of Canal Commissioners.
    If the public in raising a street allow the filling to slide or encroach on the adjoining land it is a taking. Bradwell v. City of Kansas, 75 Mo., 213; Dodson v. Cincinnati, 34 Ohio St., 276.
    It makes no difference that the improvement does not abutt on the premises affected. Keating v. Cin., 38 Ohio St., 141; Vanderlip v. Grand Rapids, 73 Mich., 522; Lewis Em. Dom., Secs., 101, 102, 151.
    Second — The premises are part of the canal system, because they constitute a portion of the reservoir for the storage of water for the 26 miles of canal between Independence and the village of Texas. 4 Ohio, 285, and 10 Ohio, 281.
    It is said the appropriation or taking of this land was not necessary. This was to be determined by the commissioners, and if they did use the lands the necessity is conclusively presumed in the absence of the impeachment of the commissioners’ action for. fraud. 4 Ohio, 283; State v. Snook, 53 Ohio St., 521; Backus v. Depot Co., 169 U. S., 568.

      (a) The use is not the ordinary use of the water of the stream or the bed of the stream, for navigation. .The navigation, for which the public have an easement in the river bed, and the use of the water in the river is the usual navigation and use of the river itself, not the navigation of an artificial canal connecting far distant parts of the state. Walker v. Board of Pub. Works, 16 Ohio, 540; S. C. 100 Amer. Dec., 154; Woodruff v. N. Mining Co., 18 Fed. Rep., 754; Canal Comrs. v. The People, 5 Wend., 423; Peen. v. Bridge Co., 18 How. U. S., 421; Morgan v. King, 35 N. Y., 454; Bridge Co. v. Page, 83 N. Y., 178; Smith v. Rochester, 92 N. Y., 464; Water Co. v. Green Bay, 142 U. S., 254.

      (b) The legislature of the state of Ohio had no intention and made no claim that it had the right to take lands, streams, and waters in its navigable rivers for canal purposes without compensation. The law expressly provides for making compensation for their use, for or in connection with the canal, and actually paid large sums of money for such lands, streams and waters. Pumpelly v. Canal Co., 13 Wall., 182.
    (c) Because the test of the acquisition of the. land is not whether the owner is injured or his rights invaded; but does the state use it as a part of or occupy it for purposes connected with its canal system; if so, the title in fee simple to the premises so used or occupied vests in the state.
    The statute makes provisions for cases (1) where there is no damage, (2) where the damage is equal to or exceeded by the benefits, and (3) where the damage exceeds the benefits. It is not in the last case only that the fee simple vests in the state, but in any case where land, streams or waters are used for the canals, or where any feeders, reservoirs, dyke., works or device are made part of the canal system. Blair v. Kiger, 12 N. E. Rep., 293.
    By the terms of the act of Fberuary 13, 1832, reservoirs are expressly enumerated as part of the “other works” appertaining to said canals. 3 Chase Statutes, 1817; Act of February 27, 1849; 2 Cur., 1474; Sec. 13, Act of April 4, 1859, 4 Cur., 3283.
    Third — The place from which the sand was taken is part of the canal system because it was actually appropriated by the state under its rights of eminent domain.
    The appropriations for the Miami & Erie canal system were made under the Ohio Constitution of 1802, which did not, as the present constitution does, require compensation to be first paid, or secured by the deposit of money. (Art VIII, Sec. 2, Con. 1802; Art. 1, Sec. 19, Con. 1851).
    The fifth amendment to the Federal Constitution, though adopted before Ohio was admitted into the Union, has no application to or restriction of state legislation relative to appropriating private property. Banon v. The Mayor, etc., 7 Peters, 245; Withers v. Buckley, 20 How., 84.
    In some of the amendments of the act of 1825 “reservoirs” and “bridges” are expressly enumerated as part of the “works” and “devices” referred to in the original act. (Sec. 8, act February 4, 1825; act February 4, 1829; act December 31, 1831; act February 13, 1832; March 3, 1834; April 4, 1850, S. & 0.1249).
    The land at the place from which the sand in dispute was taken was actually appropriated as part of the canal. McCalmot v. Whittaker, 3 Rawle, 84.

      “Aqua currit et debet eurrere ut eurrere solebat” is a maxim of the law. Mills on Em. Dom., Sec. 30; State v. Railway Co., 53 Ohio St., 189; State v. Snook, 53 Ohio St., 521.
    The value of the land or the nature of the improvements thereon does not affect the result. “A man cannot lose title to his lands hy leaving them in their natural state without improvements, or forfeit them by non-use.” McMurray v. Baltimore, 54 Md., 103; Pastorius v. Fisher, 1 Rawle, 271; Pollock v. Ship Building Co., 56 Ohio St., 655.
    Land in the bed of a navigable river and under water can be appropriated. Kerr v. Railway Co., 127 N. Y., 269; S. C. 27 N. E. Rep., 833; Oromorod v. Railway Co., 21 Blatch., 106; S. C. 13 Fed. Rep., 370; In re Railway Co. 77 N. Y., 248; In re Railway Co., 89 N. Y., 454, affirming same case, 27 Hun., 57; Woodruff v. Gravel Co., 18 Fed. Rep., 757; Ryan v. Brown, 18 Mich., 196; S. C. 100 Amer. Dec., 154; Brewing Co. v. Jarvis, 30 Mich., 308; Eaton v. Boston, C. & M. R., 51 N. H., 504; 12 Ohio St., 457.
    Whether raising water in a navigable river would constitute an appropriation, was in issue before the New York court of appeals in a case where a dam, which was built to make a feeder in Blackwater river, raised the water of the river. Benedict v. State, 24 N. E., 314; Shaver v. Eldred, N. Y. Ct. Ap. (decided May 3, 1889); Wright v. Eldred, 46 Hun., 12; Pumpelly v. Canal Co., 13 Wall., 166; S. C. 20 Co., Op. Ed., p. 556.
    That the overflowing of land above a dam built for supplying water for a canal is an appropriation, demanding compensation in the manner provided by statute, has been decided by the supreme court of Wisconsin, the judge advocate general of the United States and the supreme court of the United States, and recognized by the congress of the United States. U. S. v. Jones, 109 U. S., 513; Booming Co. v. Jarvis, 30 Mich., 308; Water Co. v. Canal Co., 142 U. S., 254; City of Janesville v. Carpenter, 77 Wis.; S. C. 46 N. W. Rep, 128; Water Works Co. v. Burkhardt, 41 Ind., 364; Canal Co. v. The State, 53 Ind., 575; Nelson v. Fleming, 56 Ind., 310; 71 Ind., 208; Frank et al. v. Railway Co., 111 Ind., 132; Blair v. Kiger, 111 Ind., 193; Robinson v. Railway Co., 72 Pa. St., 316; Coal Co. v. Price, 81 Pa. St., 156.
    Second — The use which the state by constructing its canal system has made of the premises in question, if made by a private person under claim of right would have entitled him to an easement in the premises; (hence, the same use by the state under its power of eminent domain, by virtue of the statute, vested a fee in the state.
    Our supreme court have adopted from Mr. Angelí the following definition of an easement:
    “Service which one estate owes to another; or the right of doing something or having a privilege in one man’s estate for the advantage and convenience of another estate.” Morgan v. Mason, 20 Ohio, 402; Elliott v. Salle, 14 Ohio St., 10; Cooley on Torts, Sec. 586; Mill Co. v. Newman, 12 Pick., 467; Chase Stattes, p. 1472; Carpenter v. State, 12 Ohio St., 464.
    Under the constitution, by act of 1859, it was first enacted that an easement only should be taken for a canal in Ohio (56 O. L., 141). Washburn on Easements, p. 5.
    Backing water will ripen into an easement, though the banks are not overflowed or the owner seriously damaged. Hendrick v. Cook, 4 Ga., 241, 257; Ripka v. Sergeant, 7 Watts & S., 913; McMurray v. Baltimore, 54 Md., 103.
    Even drawing a line over land would ripen into an easement. Pollock v. Bildg. Co., 56 Ohio St., 655.
    In taking property under the power of eminent domain the legislature may enact what estate is necessary and proper and shall be vested under the taking. Malone v. Toledo, 34 Ohio St., 541; Hewyard v. The Mayor of N. Y., 3 Selden, 214; Rexford v.
      Knight, 1 Kernam, 308; Report of Canal Comrs. for year 1890, p. 7; Shoemaker v. U. S., 147 U. S., 282.
    Third — The title to the premises in question, and the possession and control thereof was lost to Mr. Phillips and vested in the state. Mills on Em. Dom., Sec. 30.
    Before any canal was completed in Ohio the legislature put all slack water and reservoirs, constructed or to be constructed as a part of the canal system, in possession and control of the canal commissioners, and has since kept that board and its successors in possession and control of the whole canal system; and has prescribed penalties for any acts of dominion or control over any part thereof by other persons. Secs. 8, 9, 13, 18 and 19 of Act March 23, 1840, 1 Cur., 652; Act of March 16, 1839, 1 Cur., 558; Act of March 5,1839,1 Cur., 540; Act of March 16, 1838, 1 Cur., 431; Act of March 4, 1836, 1 Cur., 231; Act of February 13, 1832, 3 Chase, 1917; Act of January 31, 1826, 3 Chase, 1525; Act of April 4, 1859, 4 Cur., 3276.
    There are in Ohio more than forty other legislative enactments of like tenor and effect. Lewis on Em. Dom., Secs. 592, 593; Finn v. Prov. Gas Co., 99 Pa., 631; Randolph Em. Dom., Sec. 135; Rowan v. Portland, 9 B. Mon., 232.
    (а) There is nothing inconsistent in the state owning for public use, if occasion require, or the law so direct, anything that any private individual may own. In many of the states the title in fee simple to the lands under the navigable rivers is vested in the states. Indeed, under the ordinance of 1787 and the constitution of the United States, in the absence of the binding effect of the rule of property in Ohio above referred to, the title to all the navigable rivers would be vested in the state. Barney v. Keokuc, 94 U. S., 324.
    (б) That such right is within the limits of the power of eminent domain has .been frequently adjudged by the courts. Kerr v. Railway Co., 127 N. Y., 269.
    (e) The statute of 1825 and other statutes above cited expressly provide the title in fee simple to the premises shall vest in the state.
    In Ohio the bed of the river belongs to the owner of adjacent land. It belongs to him by virtue of his ownership of adjacent land, even though it is not included in the description of the land conveyed to him, or acquired by him by appropriation. The breadth or extent of the owner’s adjoining possessions or the manner in which he acquired title thereto is immaterial. The title vests in such adjacent owner by operation of law, if it is not expressly accepted from the premises conveyed and appropriated.
    Phillips had the right to sell and convey this land to the center of the stream and in so doing had a right to compute and could recover pay from the purchaser for the full number of acres to low water mark. Kamb v. Rickets, 11 Ohio, 311; Blanchard v. Porter, 11 Ohio, 138; Booth v. Hubbard, Admr., 8 Ohio St., 244; McColloch v. Aten, 2 Ohio, 307; Gould on Waters, Sec. 70.
    He had a right to dock out to, build on, fill in and use 'with or without improvements, at least to ordinary low water mark, so long as he did not interfere with the navigation of the river. City of St. Louis v. Rutz, 138 U. S., 226; S. C. Book, 34, p. 941; Walker v. Shepardson, 4 Wis., 486.
    These rights are property and cannot be taken without compensation. Lewis Em. Dom., Sec. 83; Yates v. City of Milwaukee, 77 U. S., 984; S. C. Book 19, 986.
    How wide this strip was does not appear, but it was wide enough to accommodate “the main travelled road between the north and south portions of the township.”
    The defendant in error claims the deepening of water in the river bed is not a taking. Conceding this, for the moment, the covering of the useful “gradually sloping bank” with water, and destroying its usefulness is a taking. Ashley v. Port Huron, 35 Mich., 296; Hooker v. New Haven & C. Co., 14 Conn., 146.
    The gradually sloping bank between the former low water mark and the westerly edge of the west bank of the river was and is real estate. It was useful to its owner. It was used for a road. It might have been used by the owner for many purposes, had it not been utilized by the state as a storage place for water to the partial or total exclusion of the owner. Pumpelly v. Green Bay Co., 13 Wal., 166; Woodruff v. N. B. G. & M. Co., 18 Fed. Rep., 753.
    As a matter of law the fee simple title vests in the state “from the fact alone that the tract of land was occupied by the state for purposes connected with its canal system.” Ohio ex rel v. Railroad Co., 53 Ohio St., 247.
    The right and easement of navigation that the public have in a navigable river does not include the right to the use of the banks of the river. Talbot v. Grace, 30 Ind., 389; Post v. Piersall, 22 Wend., 425; State v. Wilson, 42 Me., 9; Chambers v. Furray, 1 Yates (Pa.), 166; Bell v. Gough, 23 N. J., 624.
    River banks belonging to the adjacent land owner' are frequently a source of profit and are subject to appropriation. Walker v. Shepardson, 4 Wis., 495; Reg. v. Nav. Co., 5 Adol. & El., 804; Gould on Waters, Sec. 99, 103; Ensminger v. People, 47 Ill., 354; S. C. 95 Amer. Dec., 495.
    The owner of the land adjoining the stream owns to the center of the stream. The state became the adjacent land owner. The fee simple title was divested from Phillips and vested in the state. “No conveyance was necessary.” Water Works Co. v. Porter, 3 Hurleston & Colt, 300.
    It seems to us that the case at bar cannot be distinguished from Potomac Steamb. Co. v. Upper Potomac, 109 U. S., 672.

      In Wisconsin the rule is different. There the riparian owner holds the title in fee to the center of the stream, subject only to the right of navigation.
    The banks or bed of the river cannot there be taken for any public use without compensation to the owner. Hackstack v. Keshena Imp. Co., 66 Wis., 439;
    In Ohio the rule is the same as in Wisconsin. R. R. Co. v. Platt, 53 Ohio St., 254; Booming Co. v. Jarvis, 30 Mich., 308.
    Since our written argument was filed in this case the decision in Smith v. The State., 59 Ohio St., 278, has been announced; and a definition of “occupancy,” which would vest title in the state, is there given.

      John W. Slough, for defendant in error.
    If in damming the river the water urns caused to flow back over land that was dry land before the dam was built, of course the state would have to appropriate it and pay the owner what it was reasonably worth if he put in his claim within the time required by the law then in force; but where it was already covered with water no injury resulted to the owner of the land on either bank by raising the water a couple of feet in the river channel above what it was at low water mark. In fact it is a great and lasting benefit to all property owners along the slack water, Avhen the water is high the water flows just as though there was no dam in or across the river.
    The act of February 4th, 1825, says the commissioners may appropriate lands, waters, streams and material necessary for the prosecution of the improvement intended by this act.
    The owner of land on the bank of a river does not own the water in the river, he only has the right to use it to pass over it. June v. Purcell, 36 Ohio St., 396.
    The riparian owner can recover for land tortiously taken from the bed of the river. Gavit v. Chambers, 3 Ohio, 497.

      The canal commissioners had no use for the sand and gravel in the Auglaize river, and there is nothing to show that either the river bed, said sand, gravel or water of the Auglaize river was necessary for the use of the canal. McArthur v. Kelly, 5 Ohio, 145.
    What need had the canal commissioners with the sand and gravel in the Auglaize river more than a mile and a quarter away to make the canal navigable. This is certainly absurd, and yet this is virtually the claim of the plaintiff in error in this case.
    Certainly not for the use of the canal or its construction. It was not necessary for a feeder or reservoir for the Maumee was more than sufficient for that purpose. Malone v. City of Toledo, 28 Ohio St., 643; same case, 34 Ohio Stat., 546.
    We claim that this is against public policy and should not be sustained. The contract that plaintiff claims to have had with .the state is wholly void, even if the state did OAvn the land, for the reason that it Avas not let and entered into as the law of the state requires. No notice was ever given that tlie state intended to sell the sand to anybody.
    Why appropriate the bed of the Auglaize river if, by building the dam and raising the water a couple of feet, where water and river bed was before, no damage was done the land owners! There is no proof of any damage in the case. Cooper v. Hall, 5 Ohio, 322; McCord v. Iker, 12 Ohio, 389; McElroy v. Gable, 6 Ohio St., 188.
    As to the jurisdiction of the justice’s court, we think there is no doubt. Section Revised Statutes 590 and 591; O’Neal v. Blessing, 34 Ohio St., 33.
    The plaintiff in error claims he has a contract with the state for all the sand and gravel in the slack water of the Maumee and Auglaize rivers and it is by reason of this interest he is here in this case. In this, if your honor please, is where the danger lies. If this plaintiff in error is successful in this case, ten thousand people in the city of Defiance and twenty thousand more in the surrounding country will he at the mercy of one man for all the sand and gravel they may want for building purposes or making roads, instead of to the hundreds of land owners along the banks of these rivers.
    In other words, the state will have a monopoly of the whole business and will lease it out to the man who will pay the most, and the lessee will charge just what he may see fit, having no opposition.
    We find no authority where the bed of a river has been appropriated and the fee simple taken in the name of the state, but if there was any it certainly would have to be where it was necessary for the use and construction of the canal, and not like this case, where there can be no possible necessity for the same. Smith v. The State, 59 Ohio St., 278.

      B. B. Kingsbury, of counsel for defendant in error.
    It being. admitted that the original grantee from the United States, Phillips, owned, prior to the construction of the dam, the land in the bed of Auglaize river, opposite to the center of the channel, was the flowing back of the water occasioned by the construction of this dam, deepening it two and one-half feet, a taking, a seizure, an appropriation of this bed, so as to convert it into a fee simple title in the state of Ohio — it being thus regarded as “devoted to canal purposes?”
    Would Phillips have had any right of action against the person thus flowing back this water in the natural channel of the river? Cooper v. Hall, 5 Ohio, 320; McCord v. Iker, 12 Ohio, 387; McElroy v. Goble, 6 Ohio St., 187; Gas Light & C. Co. v. Freeland, 12 Ohio St., 392; Crawford v. Rambo, 44 Ohio St., 285.
    This case has also been cited with approval in other states. Garrett v. McKie, Richardson Law (S. C.), 444 S. C., 44 Am. Dec., 263; Dumont v. Kellogg,
      29 Mich., 420; Hollister v. Union Co., 9 Conn., 436; Lansing v. Smith, 8 Cow., 146; Clark v. Saybrook, 21 Conn., 313; Snow v. Parsons, 28 Vt., 459; Tyler v. Wilkinson, 4 Mason, 397; Angell on Water Courses, Fifth Ed.,. Secs. 116- and 117; McKean v. Canal Co., 49 Pa. St., 439; Peel v. Atlanta, Ca., 8 S. Rep., 1787; Lewis on Eminent Domain, Secs. 235 and 236; Transportation Co. v. Chicago, 99 U. S., 642; Cooley Con. Lim., 5th Ed., p. 671.
    The law appropriating lands for canal purposes should, as against such riparian owners, have a strict construction. Corwin v. Cowan, 128 Ohio St., 633; Voight v. Ry. Co., 58 Ohio St., 163.
    A right acquired by the state through adverse user to divert water from a river into a stream flowing through plaintiff’s land, gives the state no right by adverse possession to lands under a stream, and hence no right to broaden and deepen its bed. Coleman v. State, 134 N. Y., 564; People v. Canal Appraisers, 17 Wend., 606; Cooley on Con. Lim., 527; Varick v. Smith, 9 Paige Chan., 547; Longstreet v. Harkrader, 17 Ohio St., 23.
    An easement in this case was all that was necessary and did not and does not preclude the real owner from exercising any right not conflicting with this. Barclay et al. v. Howell's Lessee, 6 Peters, 449; Hatheway v. Jackson, 15 Johns, 447; Day v. R. R. Co., 44 Ohio St., 406; Morgan v. Mason, 20 Ohio, 401; Phifer v. Cox, 21 Ohio St., 248.
    It is true that this court has decided in the case of Malone v. Toledo, 34 Ohio St., 541, that that part of the canal known as the Manhattan branch and including the premises of the plaintiff, had been appropriated by the state as a part of the Wabash and Erie canal, afterward known as the Miami canal, but was abandoned in 1869 and the deed of conveyance executed by the governor granted to the city of Toledo that portion in controversy, and the question, what title was thereby conveyed, was decided to be an absolute estate in fee. Cooper v. Williams, 5 Ohio, 244.
    But, again, the plaintiff claims that the doctrine of joint ownership by state and riparian proprietor of the bed of the stream would be a dangerous one and cites, not any judicial decision, but argument of counsel and report of canal commissioners. Now, joint ownership, or rather an easement, a quasi ownership in the state, is quite compatible with the ownership of a fee in the adjoining proprietors; one need only refer to the condition of our public highways to show that a fee simple with every right of enjoyment, of considerable value, may safely co-exist with a right on the part of the state to require right of passage over them without obstruction. Ingersoll v. Hunder, 12 Ohio, 527; Fox v. Hunt, 11 Ohio, 544; Lane v. Kennedy, 13 Ohio St., 47.
    This being a case of novel impression, the construction of the law should not be such as to deprive the owner of his property without due process of law, and if the law is obscure the construction should be such as to secure to both the state and to the owners of riparian property their rights respectively, so that if an easement will serve the purpose of the state, the fee should be allowed to rest in the owner. Argumentum ab inoonvenienti plurium valet in lege — an argument drawn from inconvenience is forcible in law. Broom’s Legal Maxims, p. 141,142; Egerton v.Brownlow, 4 H. L., Cas., p. 152; Mills on Eminent Domain, p. 61, Sec. 49; Lewis on Eminent Domain, Sec. 278; McComb v. Stewart, 40 Ohio St., 647.
    It would make wholly uncertain the out-boundaries of the lands owned by the riparian proprietors, promote dispute as to the real outlines and produce endless confusion. Gavit v. Chambers, 3 Ohio, 643.
    It would convert the rivers, Auglaize, Maumee and Tiffin, into an artificial lake, with all the consequences of fee simple ownership, as stated in the case of Lembeck v. Nye, 47 Ohio St., 336, quoted by the plaintiff.
    The state would then dictate the mode in which this should be enjoyed, rights of boating and fishing would be farmed; sand and gravel from the bed of the rivers, as now, would be peddled out; ice would become a pitiful monopoly of the lessee of the state. Anything which tends to establish a monopoly is against public policy. State v. Standard Oil Co., 49 Ohio St., 186.
    The cases cited by the plaintiff from New York and Indiana are cases where, like Malone v. Toledo, the possession of the canal lands has been within artificial boundaries. But the supreme court of Indiana has not been satisfied with the decisions in the case first made by it, to the effect that a fee simple title to the canal lands was vested in the state, and has limited it in subsequent decisions as much as possible. Shanklin v. Evansville, 55 Ind., 240; Logansport v. Shirk, 88 Ind., 569; Hydraulic Co. v. Butler, 91 Ind., 136; Shirk v. Commissioners, 106 Ind., 573; Collett v. Commissioners, 119 Ind., 27.
    It is further submitted that although the state may not be barred an adverse user of the premises continued for thirty-six years or more of the right to take sand and gravel from the place in question, yet on the principle of an equitable estoppel in a case where the state has limited and defined its own rights by a law, it is worthy of consideration whether a state may not be properly subject to the doctrines of estoppel, especially as there is no evidence in this case that the sand and gravel in question was used or to be used in pursuance of the original act. Bigelow on Estoppel, 1st Ed., p. 276; Reid v. State Ind., S. C. X. Reporter, p. 142; State v. Milk, 11 Bissel C. C., 197; Commonwealth v. Heirs of Andre, 3 Pick., 224; Commonwealth v. Pejepscut Proprietors, 10 Mass., 155; People v. Society, etc., 2 Paine, 545; State v. Bailey, 19 Ind., 452; People v. Maynard, 15 Mich., 463; Cahn v. Barnes, 5 Fed. Rep., 326; State v. Ober, 34 La. An., 359; Carver v. Jackson, 4 Peters, 1.
   Burkett, J.

We think that the conclusions of fact are correctly found from the agreed statement, and that the court properly refused to find the additional facts requested by the plaintiff in error.

Several questions have been argued, both orally and on brief, but the only question worthy of report is as to whether the sandbar in the river where the sand was taken is part of the canal system of the state.

The statute under which it is claimed this sandbar became part of the canal system, is section 8, of the act of February 4,1825, Chase’s Statutes, page 1475, 23 O. L., 56, which reads as follows:

“Section 8. That it shall and may be lawful for the said canal ■ commissioners, and each of them by themselves, and by any and every superintendent, agent and engineer, employed by them to enter upon, and take possession of, and use all and singular any lands, waters, streams, and materials, necessary for the prosecution of the improvements intended by this act; and to make all such canals, feeders, dykes, locks, dams and other works and devices as they may think proper for making said improvements, doing nevertheless, no unnecessary damage, and that in case any lands, waters, streams, or materials, taken and appropriated for any of the purposes aforesaid, shall not be given or granted to this state, it shall be the duty of the canal commissioners, on application being made to them by the owner or owners of any such lands, waters, streams or materials, to appoint by writing not less than three nor more than five discreet disinterested persons as appraisers, who shall before they enter upon the duties of their appointment, severally take an oath or affirmation, before some person authorized to administer oaths, faithfully and impartially to. perform the trust and duties required of them by this act, a certificate of which oath or affirmation, shall be filed with the secretary of the canal commissioners, and it shall be the duty of said appraisers, or a majority of them, to make a just and equitable estimate and appraisal of the loss or damage, if any, over and above the benefit and advantage to the respective owners and propriteors, or parties interested in the premises, so required for the purposes aforesaid, and the said appraisers, or a majority of them, shall make regular entries of their determination and appraisal, with an apt and sufficient description of the several premises, appropriated for the purposes aforesaid, in a book, or books, to be provided and kept by the canal commissioners, and certify and sign their names to such entries and appraisal, and in like manner certify their determination as to those several premises which will suffer no damage, or will be benefited more than injured by or in consequence of the works aforesaid, and the canal commissioners shall pay the damages so to be assessed and appraised, and the fee simple of the premises so appropriated shall be vested in this state; Provided, hotoever, that all such applications to the board of canal commissioners, for compensation for any lands, waters, streams, or materials so appropriated, shall be made within one year after such lands, waters, streams, or materials, shall have been taken posession of, by the said commissioners, for the purposes aforesaid.”

In the case of Malone v. Toledo, 34 Ohio St., 541; State v. Railway Co., 53 Ohio St., 189; State v. Snook, 53 Ohio St., 521; and State v. Griftner, 61 Ohio St., 201, the canal commissioners entered upon, took possession of, and used the premises in question in those cases in the construction and operation of the canals, and thereby a fee to the land vested in the state.

In the cases of Corwin v. Corwin, 12 Ohio St., 629, and Voight v. Railway Co., 58 Ohio St., 123, the land had been acquired by private canal companies which obtained only an easement for canal purposes from the land owners, and thereafter the state acquired such private canals from such companies and made them parts of the canal system of the state, and thereafter abandoned them, and this court held in those cases that the state acquired only the easement held by the canal companies, and not a fee-simple, for the reason that while the state had the power, under section 8 of the canal act, to enter upon, possess and use the lands for canal purposes, and thereby acquire a fee as against all who had any interest in the lands, yet as the former owners were out of posession and out of control and the private canal companies were in possession and control, the change from the canal companies to the state canal system-was not of a character to call the attention of the former land owners to the fact that their reversion was being taken by the state; and would not give them a reasonable opportunity to make application for compensation for such reversion. This clearly appears in the Corwin case, and that case controlled the decision of the Voight case.

In the case of Smith v. The State, 59 Ohio St., 278, this court held that for the state to acquire a fee to lands by occupancy and use for canal purposes, it was necessary that the occupancy by the state should be exclusive, and that it should be so open and notorious as to put the owner of the land on notice that the property had been taken by the state for its own with the purpose or appropriating it as part of its canal system.

The above cases clearly point out the rule by which the state could acquire the fee to lands for canal purposes. If the entry, use and possession by the state were open and notorious so as to inform the land owner that his land had been taken by the state for canal purposes, a fee vested in the state. But if the entry, possession or use was merely incidental, constructive or indirect, and not of such character as to apprise the canal commissioners that they were making the state liable, nor tbe land owner that his lands were so appropriated as to give him a claim against tbe state for taking and using tbe same for canal purposes, no title or fee vested in tbe state.

To vest a fee in tbe state, tbe entry, possession or use must have been of such an open and notorious character as to make it fairly apparent to both tbe officers of tbe state and tbe owners that tbe lands were taken and used for canal purposes.

This section of tbe statute should be fairly construed, not rigidly in favor of either party. It should be regarded by tbe courts at this late day as it was looked upon in tbe days when tbe canals were constructed, and to wrest the lands from tbe owners and vest a fee thereto in tbe state, facts should appear from which a court can clearly see that both parties knew or should have known at the time of tbe construction of tbe canals, that the lands in question in any particular case bad been appropriated and used for canal purposes.

Tbe mere backing up of water in a river, creek, run or ravine to an extent insufficient to seriously interfere with tbe use of tbe lands by tbe owner, could not have been regarded in those days, either by tbe officers of tbe state or tbe land owners, as an appropriation and use of sucb river, creek, run or ravine for canal purposes. What must have been then understood as an appropriation and use of lands and streams was an actual physical possession and use in the construction of tbe canals and feeders, dykes, locks and dams connected therewith so as to become a part of tbe canal system of the state. Sucb an appropriation was open and public notice to tbe land owner that be bad been deprived of bis property, and an invitation to him to make application for compensation.

' Tbe backing up of water in tbe Auglaize river, as shown by the finding of facts in this case, was not of a character to induce tbe canal commissioners to think that they had appropriated the stream for canal purposes so as to vest a fee to be paid for by the state; neither was it of a character to apprise the land owner that his lands had been so appropriated.

The use of the river at that point by deepening, it with backwater was not for the purpose of makin a reservoir, as in State v. Griftner, supra, but was a mere incident arising from the construction of the dam in the Maumee river some four and one-half nliles below. The Auglaize river was not in any manner used for slack-water navigation, for the storage or turning of boats, and it was not dredged or deepened for -canal purposes, and was not used as a part of the canal system unless this slight incidental backing of water constituted such use. We are clear that this was not sufficient, and that the court below correctly decided the case.

Judgment affirmed.


author: Burkett, J. Williams, J.,

text:
    Makley v. Whitmore, et al.

      Assessments in installments — For municipal improvements — Installments should not be placed on annual duplicate until due and payable — Installments properly entered collectible as other taxes — Installments not due, lien on property, when — In sale of land vendor does not pay undue installments, when — Sections 2854 and 1042, Rev. Stat.

    1. Installments of assessments for municipal improvements which are certified to the county auditor and are due and payable within the year next after the last day of September in any year, should be placed upon the duplicate of the county for such year and collected as other taxes; the installments not so due and payable should not be placed upon the annual duplicate until they become so due and payable.
    2. Installments which are properly entered upon the annual county duplicate should be collected the same as other taxes, and in case of a judicial sale of real estate, or a sale by administrators, executors, guardians or trustees, made after the last day of September in any year, such installments as stand unsatisfied upon such duplicate should be paid out of the proceeds of such sale, as provided as to other taxes in Section 2854, Revised Statutes.
    3. Installments not due and payable within the year next after the ' last day of September, remain a lien upon the real estate in the hands of the purchaser at such judicial sale, or sales by administrators, executors, guardians or trustees, and such purchaser takes such real estate burdened with the lien of such unmatured assessments, and he has no right to have the same paid out of the proceeds of such sale. Neither has such municipality such right.
    4. Whether the date from which to reckon is the first day of November instead of the first day of October, in counties having a city of the second or third grades of the first class, as provided in Section 1042, Revised Statutes, is not involved in this case, and is not decided.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Montgomery county.
    The controversy in this casé arises over the disposition of the proceeds of the sale of real estate upon foreclosure of two mortgages. Judgments and orders of sale were entered by tbe court in favor of one mortgagee as plaintiff, and in favor of another as cross-petitioner. Tbe real estate was sold by tbe sheriff under an order issued under tbe judgments of foreclosure. Tbe sale was approved and confirmed by tbe court, and a deed ordered to be made by tbe sheriff to tbe purchaser, Sarah Belle Whitmore, and all of tbe proceeds of tbe sale except tbe sum of $400 were distributed by tbe order of tbe court. Some twenty-five days after such distribution, but while tbe $400 still remained in tbe bands of tbe sheriff, tbe purchaser and tbe city of Dayton were made parties defendant, and answered jointly, setting up tbe fact that tbe city bad made certain street and sewer improvements and assessed tbe costs thereof against tbe real estate; that tbe owner, Louisa T. Makley, bad failed to pay tbe assessments, and that tbe same bad been certified to tbe county auditor to be placed upon tbe tax duplicate, and collected by him in ten equal annual installments with interest, as other taxes, and that the same bad been “entered in his books kept for said purpose.” Tbe answer further averred that tbe bonds were issued by tbe city on account of said assessments; that tbe assessments became a lien on said premises from tbe date of tbe passage of tbe assessing ordinances in the-years 1892 and 1893, and that a number of tbe installments bad been paid, but that tbe sum of $295.05 remained unpaid, and which sum the answer averred was tbe first and best lien upon tbe proceeds of sale remaining undistributed.
    Tbe third subdivision of tbe answer set up an assessment for the improvement of an alley, in tbe sum of $129.93, to be paid in one installment and duly certified to tbe auditor, tbe same as above set forth as to the street and sewer assessments. Tbe answer avers that the ássessing ordinance was passed in tbe year 1896, but fails to state tbe month or day of its passage, and fails to state the date at which work was commenced upon the improvement, or when the twenty days expired, within which payment might be made.
    Louise T. Makley demurred to this answer upon the ground that it did not. state facts sufficient to entitle the city or the purchaser to any relief. The court overruled the demurrer and entered judgment, ordering that $390.22 be paid to the purchaser out of said sum of $400 yet .remaining in the hands of the sheriff, the city having consented that the purchaser might assume and pay said assessments, to all which plaintiff in error excepted.
    The order of sale was issued on the 14th day of April, 1897, the sale was confirmed on the 24th day of the following May, and distribution made.on the third day of June thereafter.
    The circuit court affirmed the judgment of the common pleas and thereupon Louisa T. Makley filed her petition in error in this court, seeking to reverse the judgments below.

      Wright & Ozias, for plaintiff in error.

      Wm. G. Frizell, for Sarah Belle Whitmore.

      Fchain P. Matthews, City Solicitor, for defendants in error.
    Brief of Wright & Ozias.

      Caveat emptor applies to all judicial sales. Riddle v. Bryan, 5 Ohio, 48; Vattier v. Lytle, 6 Ohio, 477; McLouth v. Rathbone, 19 Ohio, 21; Corwin v. Benham, 2 Ohio St., 36; Creps v. Baird, 3 Ohio St., 277; McKenzie v. Perrill, 15 Ohio St., 162; Dresbach v. Stein, 41 Ohio St., 70.
    Does the lien of the city of Dayton for assessments for paving, etc., come within this rule?
    We claim it does. Ketcham v. Fitch, 13 Ohio St., 201. This decision is the more satisfactory, as it gives the reasons upon which the rule is founded. It has never been overruled, modified or limited. If this is the rule in such cases, then the next question is, whether assessments are “taxes,” and if so, are they such taxes as can be ordered paid out of the purchase money? Section 2854, R. S.
    But we may concede that assessments, when due, become current taxes, and if so, then they must be on the duplicate on October 1, of any year, before they are payable out of the proceeds of the sale made thereafter. Hoglen v. Cohan, 30 Ohio St., 436.
    This excludes all assessments not due and not on the duplicate October 1, from payment out of proceeds of any sale made thereafter. Such undue assessments are therefore simply liens, or incumbrances, not “taxes.”
    If, then, undue assessments are governed by the rule of caveat ernptor, in judicial sales, such assessments cannot be paid out of the purchase money, unless they are current taxes and were on the duplicate for collection at the time of the distribution.
    Brief of Wm. C. Frisell.

    This defendant in error claims, in the first place, that assessments against real estate,* whether payable in one or more installments, are such taxes that must be discharged out of the proceeds, at a judicial sale of the real estate. Section 2854, Revised Statutes of Ohio. Assessments in said section are not specifically mentioned. Assessments, however, are a species of taxes, and are included in the generic term taxes, unless for some special reason they are excluded. That assessments are a species of taxes has been decided so frequently by the supreme court of Ohio, that it is the settled law of the state. Two excerpts from two decisions will show the trend of all the many decisions upon this point. Hill v. Higdon, 5 Ohio St., 243; Reeves v. Treasurer, 8 Ohio St., 303; Cleveland v. Wick, 18 Ohio St., 358; Sessions v. Crunkilton, 20 Ohio St., 358; Chamberlain v. Cleveland, 34 Ohio St., 551; Raymond v. Cleveland, 42 Ohio St., 527.
    Sections 2264a, 2270, 2270a, 22705, 2270c, 2270.2, 2270c, 2270f, 2271, of the Revised Statutes, refer to assessments as “the tax or assessment specially levied or assessed.” Section 2281 speaks of an assessment as “tax assessed.” Sections 2292 and 2292a, referring to a light assessment, say, “levy and assess a tax.” Section 2295 calls, an assessment “an assessment or tax.” Sections 2265, 2311, 2358, 2365-5, 2406-47, and 2293-49, relating to the collection of assessments, say that they shall be “collected as other taxes.” The last two sections are in the special Dayton Street Paving and Sewer laws, under which the assessments in controversy in this case were levied.
    As a species of taxes they are included in the general term taxes, as used in section 2854, of the Revised Statute, relating to the discharge of taxes at a judicial sale from-the proceeds of the sale unless for some special, apparent reason, they are excluded. Does any such reason appear? The wording of the statutes suggests none.
    In the second place, this defendant in error claims that if assessments are not taxes, but are simply liens, that the lien-holder may become a party to the proceedings any time before the final order of distribution, and that the liens may then be ordered paid to the lien-holder out of the proceeds of the sale.
    That the lien-holder may become a party to the suit before the sale and his lien paid out of the proceeds of the sale is not questioned. Porter v. Barclay, 18 Ohio St., 546.
   Burkett, J.

The record shows that upon distribution of the proceeds of the sale, the court ordered first the payment “to the treasurer of this county the taxes due on said property, amounting to $445.73.” This must be taken and understood as including all assessments then due and standing upon the duplicate. This seems to be conceded, or at least is not controverted, by counsel for the defendant in error, but it is claimed that the assessments not due but remaining unpaid should be paid out of the proceeds of the sale, either the whole amount including the interest, or with a proper rebate of interest. The courts below ordered the assessments and interest with a rebate for the unexpired time to be paid, and the question is whether this could be legally done over the objection of the judgment debtor. We think it could not. Section 19 of the act of April 24, 1890, 87 O. L., 288, amended, 91 O. L., 482, being section 2293-50, Bates’ Statutes, under which the assessments were made, provides that such assessments shall be a lien upon the property from the commencement of the work, and shall not be divested by any judicial sale. The general statute, section 2285, provides that special assessments shall be a lien from the date the assessment was made. ■

While it does not appear when the work was commenced, and not definitely when the assessing ordinances were passed, enough appears in the record, as against a demurrer, to show that the assessments were made and certified to the county auditor, and were liens upon the real estate in question at the time of the sale, confirmation and distribution, and that the unpaid installments of the assessment were not due, and were not standing upon the annual tax duplicaté at the time of the sale and confirmation..

Section 18 of the act of April 24, 1890, 87 O. L., 288, being section 2293-49, under which these improvements were made, provides that the assessments shall be placed on the duplicate of the county, and shall be payable at the office of the county treasurer in ten equal annual installments, the first of which shall be payable at the first semi-annual payment of taxes next succeeding the time said assessment is placed upon the duplicate, and the others annually thereafter until all are paid, and said assessments shall he collected like other taxes, that is, with and in the same manner as state and county taxes, as is the wording in section 2295, Revised Statutes.

It will be noticed that the assessments are to be placed upon the county duplicate, and are payable at the office of the county treasurer. The only warrant the county treasurer has for receiving payment of assessments is the county duplicate, and this duplicate has upon it only the collections to be made for the current year. The auditor has no authority to place anything upon the duplicate for the current year unless it is due and payable during that year. By section 1043, Revised Statutes, it is provided that the delinquent list and the fees of the treasurer shall be deducted from the total amount of the duplicate in the settlement of the treasurer with the county auditor, and that he shall be charged with the balance. Section 1044 provides that the delinquent list shall consist of the taxes and penalties due and unpaid, and requires the auditor to give to the treasurer a certificate of the taxes which have become due and payable and remain unpaid; but no certificate is authorized as to taxes or assessments which are not due and payable and cannot become due for a year or more to come. As only the treasurer’s fees and the delinquent list can be deducted from the total amount of the duplicate, and as taxes and assessments which are not due and payable, cannot go on the delinquent'list, it would follow in case the whole assessments, though not due and payable, should be placed upon the annual duplicate, as urged by counsel for defendant in error, that the treasurer would be charged with the whole assessment, and would have to pay the same, even though the respective installments would not become due for years in the future. Such a construction of the statute is absurd and should not be adopted by any court. The true construction is that the installments of assessments becoming due and payable in any one year are entered by the county auditor upon the county duplicate for that year, and are collected with and in the same manner as state and county taxes, and the subsequent installments as they become due and payable are placed upon the duplicate and collected in like manner.

Different auditors may have different methods of bookkeeping, unless uniformity is attained under Section 1041, Revised Statutes, but no auditor has any warrant of law to put upon the annual duplicate installments of assessments which are not due and payable during the year for which such duplicate is made. And installments of assessments which are not due and payable during the current year, and are therefore not upon the treasurer’s duplicate for that year, cannot be collected out of the proceeds of real estate sold at judicial sale, because they are not standing unsatisfied upon the annual duplicate. Installments of assessments are to be collected like other taxes; that is, with and in the same manner as state and county taxes, and such taxes cannot be collected out of such proceeds of sale unless they stand unsatisfied upon the annual duplicate. Ketcham v. Fitche, 13 Ohio St., 201.

In that case this court held that the amount due on a' sale for taxes, usually known as a tax sale, could not be paid out of the proceeds of the sale of real estate because the taxes included in such tax title did not stand unsatisfied upon the duplicate, the same having been paid by the purchaser at the tax sale and thereby removed from the duplicate. It was conceded in that case that the tax title was a valid lien upon the premises, and that in case the holder of the same had been made a party, an order would have been made for the payment of the amount due thereon, but held that such payment could not be made under section 77 of the tax law, now section 2854, Revised Statutes. In that case such payment could not be made under section 77 because the tax had been removed from the duplicate; and assessments not due and payable during the current year, cannot be paid out of such proceeds of sales, because, they have not yet reached the duplicate, and do not stand unsatisfied thereon. The treasurer has no jurisdiction over such unmatured assessments, and the auditor has no warrant of law for placing such assessments upon the annual duplicate of the treasurer.

The lien of such installments still remains upon the real estate just as the lien for general taxes remains on real estate after the day preceding the second Monday in April of each year, and yet when sold at judicial sale before the first day of October of such year, the taxes for that year, although a valid lien, cannot be paid out of the proceeds of the sale, but must be paid by the purchaser. Hoglen v. Cohan, 30 Ohio St., 436.

The same is true as to assessments. The installments that are rightly placed upon the duplicate which goes into the hands of the treasurer on the first day of October must be paid out of the proceeds of any judicial sale of real estate made on or after that date, but such installments must be paid by the purchaser when the sale is made before the first day of October. In the case at bar the sale was made in the month of May, and all installments due and payable at that time having been paid, it follows that the installments falling due thereafter, and to be placed upon subsequent duplicates, remained liens upon the real estate to be paid by the purchaser, and that the courts below erred in ordering such assessments to be paid out of the proceeds of such sale over the objections of the plaintiff in error.

The lien of a municipality on real estate for legal assessments remains on such real estate, unaffected by sales or transfers, and can be collected the same as other taxes, and in case of a sale under judicial process such municipality is neither a necessary nor proper party, for the mere purpose of having assessments paid out of the proceeds of sale, because the installments upon the annual duplicate of the treasurer will be paid out of the proceeds of the sale, when the sale is made on or after the first day of October, and if made before that day the lien will continue upon the lands sold, to be paid by the purchaser, and if not paid, to be collected' from the lands in his hands the same as other taxes. While the statute gives the owner of real estate the right to pay assessments and interest at any time, and thus free the real estate from the lien, such payment is at the option of the owner, and not at the option of the city; and when the owner refuses to pay the whole assessment and interest, the court has no right to compel him to do so by ordering such payment to be made out of the proceeds of the sale of the real estate. What the rule is to be in counties having a city of the second or third grade of the first class, as prescribed in section 1042, Revised Statutes, is not here involved and is not d’ecided.

The judgments of the courts below will be reversed, the demurrer of the plaintiff in error to the joint ansAver of the city of Dayton and Sarah Belle Whit-more will be sustained, and an order made that the money yet in the hands of the sheriff be paid over to the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Williams, J.,

dissents from that portion of the third paragraph of the syllabus, which holds that neither the purchaser at judicial sale, nor the municipality has any right to have unmatured assessments paid out of the proceeds of the sale; and from the judgment.