author: Minshall, J.

text:
    Vought v. The Columbus, Hocking Valley & Athens R. R. Co. Walsh v. Same. Wright v. Same. Shotwell v. Same.

      Abandonment of Hocking Canal — Validity of Act of May 18, 1894— A stranger to a contract cannot insist on its performance— Rights of owners of property abutting on canal — Law of contract — Constitutional law.

    1. The act of the general assembly providing for the abandonment of the Hocking canal and for leasing the same to the Columbus, Hocking Valley & Athens R. R. Co., passed May 18, 1894 (91 Laws, 321), does not confer corporate powers, nor impair the obligation of contracts, nor in any other manner conflict with the Constitution of the state, and is a valid law.
    2. A party cannot, for his own benefit, insist upon the performance of a contract between others and to which he is not a party or privy ; nor claim relief against either of the parties to such contract, for investments or improvements he may have made on the assumption that the contract would be observed,
    3. Owners of lands abutting on a canal, incidentally benefited by the water it afford s, or its facilities for drainage, have no property interest in these incidental benefits, and cannot, on such ground, enjoin the abandonment of the canal, or claim compensation therefor.
    4. Contracts made with the Board of Public Works or other agents of the state, for the use of the water of the canal, terminate with the abandonment of the use of the canal by the state and no action will lie against the state for damages resulting from such abandonment.
    5. Lands acquired for its use by a conal company, a private corporation, organized under an act of the general assembly before the adoption of the present Constitution, as the Lancaster Lateral Canal Company, 24 Laws, 71, authorizing it to acquire lands for its use by donation, grant or appro" priation, without expressing the interest or estate to be acquired thereby, revert to the owner from whom they were acquired, on the abandonment of the canal, or his successor in title. The general rule being, that where lands are acquired for a public use, an easement only is taken therein, unless the taking of a greater estate, as a fee simple, is expressly authorized by law. And the rule is the same where it afterwards disposes of its canal to the state, which, under the act of 1825, takes a fee simple in lands condemned by it to the uses of its canal system.
    6. Where, however, the land is only abandoned by the state for canal purposes, and is at the same time leased or conveyed to a railroad company for the construction and operation of a railroad thereon, the owner is only entitled to compensation for such additional burthen thereby imposed on the land, and such damages as may result from the new use. Hatch v* Railroad Co., 18 Ohio St., 92,
    (Decided March 22, 1898.)
    Error in such, case, to the Circuit Court of Franklin County.
    The above cases have been heard and submitted together, because the principal question, the validity of the act whereby the state, through its legislature, abandoned the Hocking Canal for canal purposes and leased it to the Columbus, Hocking Valley and Athens R. R. Co., is common to all of them. The questions arise upon a demurrer to the petition in each case. That in Vought’s ease is as follows: “The said plaintiff, Michael S. Vought, says, that he is a resident of the county of Fairfield, and a citizen and taxpayer of the state of Ohio. That he is now, and for some time past has been, the owner in fee simple of a certain tract of land situated in the county of Fairfield and state of Ohio, and being parts of sections Nos. 20, 21 and 28, in Greenfield township, No. 15 and Range 19, and bounded and described as follows:
    On the north by the lands of George Buzzard and by the Hocking Canal, on the east by the Hocking Canal, and on the south by other lands of the plaintiff, and by the lands of Zebulon Peters, Silas Peters, W. W. Donaldson, John Duddleson and William Stanberry’s heirs; and on the west by the lands of Silas Peters’ heirs, John Duddleson, W. W. Donaldson, William Stanberry’s heirs, M. A. Stan-berry and John Ruff, containing six hundred acres more or less, all of which is in actual occupancy of plaintiff. That said lands are, and have been for many years, under a high state of improvement and used for the purposes of cultivation, and have a special value from their location, and that for the purposes of reclaiming and draining said land, he has laid thereon about seventeen miles of drain tile.
    Plaintiff further says, that heretofore, to-wit: on the 8th day of February, 1826 (Ohio Laws, Vol. 24, page 71) the Lancaster Lateral Canal Company was incorporated by an act of the general assembly of the state of Ohio, and authorized to construct and operate a canal extending from the village of Car roll to the city of Lancaster, connecting with the Ohio Canal at said village of Carroll.

      A copy of which, said act of incorporation is hereto attached marked “Exhibit A,” and made a part of this petition.
    Plaintiff further says, that in and by said act, said Lancaster Lateral Canal Company was authorized to appropriate lands for the purposes set forth therein, and in and by the same the said state of Ohio reserved the right to purchase said canal at its cost price. That thereupon said canal company acquired the right to use the lands upon which it is now located, for the purpose of a canal, and did construct the same. That afterwards and on the 22d day of December, 1838, the said state of Ohio elected to purchase said canal and did, in fact, purchase the same and received a conveyance thereof from said canal company to be held and used by the state of Ohio for the purposes of navigation. A copy of said deed is in the words and figures following, to-wit:
    Whereas, by an act of the general assembly of the state of Ohio, of the ninth of March, 1838, entitled “an act to authorize the board of public works to purchase for the use of the state of Ohio, The Lancaster Lateral Canal,” it is amongst other things, provided, that the board of public works are thereby authorized and required, in the name and for the use of the state of Ohio, to purchase of the directors of The Lancaster Canal Company, the said canal, and hold the same for the use of the state,' paying therefor the actual cost of locating, constructing and repairing the said canal, with lawful interest as the same shall be established by the oaths of the proper officers of said company, deducting therefrom the amount granted by the state in aid of said canal, with lawful interest thereon from the time of payment thereof.

      And whereas, the said board of public works and the president and directors of said Lateral Canal. Company, in conformity with the provisions of purchase above recited, have fixed and adjusted the sum to which the said company is entitled, at sixty-one thousand, two hundred and forty-one dollars and four cents, being the actual cost of locating, constructing and repairing said canal, after deducting the amount granted by the state in aid of said canal, with interest thereon as the same has been established by the oaths of the proper officers of said company.
    Now know ye, that the said Lateral Canal Company, for and in consideration of the premises and for and in consideration of the said sum of sixty-one thousand, two hundred and forty-one dollars and four cents, to the said company paid by the state of Ohio, and for the purpose of carrying into effect the above recited act, doth by these presents grant, bargain, sell and convey to the state of Ohio and its assigns, in fee simple, the said Lancaster Lateral Canal, with all the fixtures and easements thereto appertaining, for the purposes of navigation, to have and to hold the same to the said state of Ohio and its assigns forever, in as full and ample a manner as the said company now hold and possess the same.
    In testimony whereof, the said company has caused their common seal to be hereto affixed by John Creed, their president, on this twenty-second day of December, A. D., eighteen hundred and thirty-eight (1838). John Creed,
    [seal] President.
    Signed, sealed and delivered in presence of

      W. T. Martin,
    James Taylor, Jr.

      The State of Ohio, Franklin County, ss.:

    Before me, the subscriber, an acting justice of the peace within and for said county, personally appeared John Creed, president of The Lancaster Lateral Canal Company, and acknowledged the. foregoing instrument of writing to be the proper act and deed of said company, for the purposes therein mentioned.
    Given under my hand and seal this 22d of December, A. D., 1838.
    W. T. Martin, Justice of the Peace.
    Lancaster, Dec. 22, 1838.
    At a meeting of the directors of “The Lancaster Lateral Canal Company.” Present, John Creed, President; Samuel F. McCracken, Thomas Ewing, Philemon Beecher,---Scofield, Benjamin O’Connell and Jacob Green.
    Ordered that John Creed, president for the company, do place the common seal of the conveyance of this date, made by the company to the state of Ohio, of The Lancaster Lateral Canal, and that said president acknowledge and deliver the said deed in the uame of the company.
    F. A. Foster, Secretary.

      Recorders Office, Fairfield County, Ohio.

    This instrument of writing received December 24, 1838, and recorded 29th same month in Book No. 4, pages 357 and 358.
    Attest: W. L. King,
    R., F. C.

      Endorsement on Deed.'

      Recorder's Office, Fairfield County, Ohio.

    This deed received December 24, 1838, and recorded 29th same month, in Book No. 4, page 358.
    Attest: W. L. King, R., F. O.
    Plaintiff says that many years ago the state of Ohio, through certain aid granted to the state by the United States, and by virtue of a certain compact entered into by the United States and the state of Ohio, which is hereafter more fully set forth, made certain purchases and acquired the right to extend said canal to the town of Nelson-ville, in Athens county, and did complete and extend the same, and the same is known and commonly called the Hocking Canal, and the east line of plaintiff’s said lands is in the center of said canal. The plaintiff further says that the said Hocking Canal extends from the village of Carroll, in Fair-field county, and the Ohio Canal, through the counties of Fairfield, Hocking and Athens, to the village of Nelson ville, in the said last named county; and the same has since its construction been a part of the canal system of the state of Ohio, and an extension of the Ohio Canal, and the state of Ohio is the owner of and in possession of said canal, which is now in use for navigation and other purposes hereinafter set forth.
    The plaintiff further says, that the said defendant, The Columbus, Hocking Valley and Athens Railroad Company, on the 12th day of April, 1894, filed with the secretary of state its articles of incorporation in said name, which articles of incorporation were then and there duly recorded, and that the principal office of said company, fixed by said articles of incorporation, is at the city of Columbus, in the county of Franklin, in said state. Said corporation was organized for the purpose of building and operating a railroad from the city of Columbus, in the county of Franklin, and extending through the counties of Franklin, Fairfield, Hocking and Athens, all in the state of Ohio, the said corporation being authorized to exercise such powers, rights, privileges and franchises only as are provided for and conferred by the general laws of the state of Ohio, regulating the organization and incorporation of railroad companies.
    Plaintiff further says that said defendant, since the 18th day of May, 1894, has been and still is claiming the right, privilege and franchise of entering upon, taking possession of and controlling the Hocking Canal, above described, and especially that portion extending through the lands of plaintiff, above described, including all the property, fights, interests and appurtenances connected with said Hocking Canal, between the points above named. The said defendant claims the right, privilege and franchise of taking possession, controlling said property and constructing and operating a railroad along and over the said canal, by virtue of an act of the general assembly of the state of Ohio, passed on the 18th day of May, A- D., 1894. Said act is in words and figures following, to-wit:
    S. B. AN ACT. No. 315.
    To provide for the abandonment of the Hocking Canal for canal purposes, and for leasing the same to The Columbus, Hocking Valley and Athens Railroad Company.

      Section 1. Be it enacted by the general assembly of the state of Ohio, that the Hocking Canal, from, its junction with the ’ Ohio Canal in the village of Carroll, Fairfield county, to its southeastern terminus in the village of Nelsonville, Athens county, be and the same hereby is abandoned for canal purposes, and the same shall not be used for canal purposes during the pending of the lease provided in the next section of this act.
    Sec. 2. There is hereby granted the right, franchise, and privilege of constructing, maintaining and operating over, upon and along the Hocking Canal and property of the state of Ohio adjacent thereto, a railroad with single or double tracks, side-tracks, switches, bridges, stations and other structures usual and incidental to the operation, of a railroad, to The Columbus, Hocking Valley and Athens Railroad Company, its successors and assigns for the term of ninety-nine years, renewable forever, for and in consideration of the payment by said company, its successors or assigns, to the treasurer of the state of Ohio, on the first day of July, 1894, of the sum of fifty thousand dollars, and on the first day of January, 1900, and of each and/ every year thereafter, during the term of this lease, of the sum of ten thousand dollars annual rental.
    Sec. 3. Said installment of fifty thousand dollars shall be paid into the state treasury before the construction of said railroad is begun, and for the remaining installments of rental the state of Ohio shall have the first lien upon said railroad, together with its switches, side-tracks, bridges, and other structures erected on said property of the state of Ohio, which shall be superior to any and all other liens of every kind upon the same. The said Columbus, Hocking Valley and Athens Railroad Company shall further execute unto the state of Ohio, to be approved by the auditor of state, the secretary of state and attorney-general, or any two of them, a good and sufficient bond in the sum of one hundred thousand dollars conditioned that the said company will faithfully build said railroad in compliance with the conditions and terms of this act, and upon failure to build said road within the time herein specified, they shall be liable to the state of Ohio in the full sum of one hundred thousand dollars as stipulated damages. Said bond shall be executed and filed with the secretary of state within ten days after the passage of this act.
    Sec. 4. In consideration of the payment aforesaid, said railroad company, its successors and assigns, shall have the exclusive right during the term aforesaid to use and occupy the property aforesaid, or so much thereof as may be necessary, for the purpose of constructing, maintaining and operating the railroad thereon. Said company shall not disturb any vested rights or privileges of abutting property holders along said canal, and shall hold the state harmless from all loss or damage resulting to such property holders by reason of the construction and operation of said railroad.
    Provided that when said railroad, its successors and assigns cease to use said canal for railroad purposes, said canal property shall revert to the state for canal purposes.
    Sec. 5. This act shall not be construed to prevent the levying and collecting of taxes on said railroad in the same manner as they are levied and collected on other railroad property in this state.
    Sec. 6. The work of constructing said railroad shall be commenced within six months after the passage of this act, and the same shall be completed within two years thereafter.
    Sec. 7. This act shall take effect and be in force from and after its passage.
    Leonidas H. Southard,
    Speakeiqoro tern, of the House of Representatives.
    Andrew L. Harris, President of the Senate.
    Passed May 18, 1894.
    The said Hocking Canal property above described, was acquired by the state of Ohio by virtue of the acts relating to the Lancaster Lateral Canal Company, above set forth, and also by virtue of certain acts of the congress of the United States, and by the general assembly of the state of Ohio, under and by virtue of certain agreements entered into by and between the United States and the state of Ohio, as hereinafter set forth. That between the 23d day of February, 1820, and the 8th day of February, 1825, the general assembly of the state of Ohio presented to the senate and house of representatives of the United States, memorials and resolutions in which were set forth the advantages which the United States would derive from the construction of certain canals, and particularly the Ohio Canal, extending from the Ohio river at the mouth of the Scioto river, to Lake Erie, and requesting the congress of the United States to grant to the state of Ohio aid in the construction of said canal and extensions thereof, which might thereafter be made.
    And thereupon, in response to said resolutions and memorials, on the 24th day of May, 1828, the congress of the United States passed an act entitled “an act to aid the state of Ohio in extending the Miami Canal from Dayton to Lake Erie, and to grant a quantity of land to said state to aid in the construction of said canals authorized by law;” the fifth section of which act is in the words and figures following, to-wit:
    “Sec. 5. And be it further enacted, that there be and hereby is granted to the state of Ohio, five hundred thousand acres of the land owned by the United States, within the state of Ohio in the payment of the debt, or the interest thereon, which has heretofore been, or which may hereafter be, created by said state in the construction of the canals within the same, undertaken under the authority of the laws of the said state now in force, or that may hereafter be enacted, for the extension of canals now making; which lands, when selected, shall be disposed of by the legislature of Ohio, for that purpose and no other: Provided, the said canals, when completed or used, shall be and forever remain, public highways, for the use of the government of the United States free from any toll or charge whatever, for any property of the United States, or persons in their service passing along the same: And provided further, that the said canals, already commenced shall be completed in seven ■ years from the approval of this act, otherwise the state of Ohio shall stand bound to pay over to the United States the amount which any lands sold by her, within that time, may have brought; but the validity of the titles derived from the state by such sales, shall not be affected by that failure. ’ ’
    It was further provided by the seventh section of the said act that “said act shall take effect provided the legislature of Ohio, at the first session thereof hereafter to commence, shall express the assent of the state to the several provisions and conditions thereof; and unless such expression of assent he made, this act shall he wholly inoperative. ’ ’
    And thereupon, in pursuance of said act of congress, on the 22d day of December, A. D., 1828, the general assembly of the state of Ohio assented to the several provisions and conditions of said act which said act is in the words and figures following, to-wit:
    “An act declaring the assent of the state of Ohio to the provisions and conditions of an act of congress.” (See page 319.)
    “Section 1. Be it enacted by the general assembly of the state of Ohio, that the assent of the state of Ohio be, and the same is hereby expressed and declared to be given, to the several provisions and conditions of an act of congress of the United States, approved twenty-fourth of May, eighteen hundred and twenty-eight, and entitled, ‘An Act to aid the • state of Ohio in extending the Miami Canal from Dayton to Lake Erie, and to grant a quantity of land to said state, to aid in the construction of the canals authorized by law; and for making donations of land to certain persons in Arkansas Territory'.’
    “Edward King,
    “Speaker of the House of Representatives.
    “Samuel 'Wheeler, “Speaker of the Senate.
    “December 22d, 1828.”
    That in pursuance of said agreement so entered into between the congress of the United States and the general assembly of the state of Ohio, the state of Ohio received and took possession of the said grant of five hundred thousand acres of land provided for in said act hereinbefore set forth, and has from time to time sold and disposed of the same, and has received from the proceeds of such sale upwards of the sum of $2,200,000. That at the time of the passage of the several acts above mentioned, the Ohio Canal, extending from the mouth of the Scioto river through the state of Ohio to Lake Erie, was then located and in process of construction, with its various branches and extensions, which said canal passed through the village of Carroll, in said county of Fairfield. And that afterwards, on the date hereinbefore mentioned, the said Lancaster Lateral Canal was purchased by the state of Ohio for the sum of $61,241, the said sum being paid to the said Lancaster Lateral Canal Company by the board of public works, in pursuance of said act, out of the canal funds belonging to the state of Ohio, derived from and created by the sale of the lands granted by the United States, as hereinbefore set forth.
    Afterwards, to-wit, on March 7, 1836, the general assembly of Ohio, by an Act passed on that date, authorized the canal commissioners of the board of public works of the said state, to extend the said Lateral Canal from its terminus in the town of Lancaster, to the town of Athens, in Athens county; and the said commissioners were, by the said act, authorized to borrow on the credit of the state of Ohio $350,000, for the purpose of constructing said canal; and afterwards the said commissioners were authorized, by an act of the general assembly, to borrow the additional sum of $300,000, for the purpose of completing the said canal between the points aforesaid.
    The plaintiff further says, that the said canal so authorized to be constructed, was completed and opened as a continuous line of canal for navigation purposes, on and prior to the first day of January, 1842. The entire purchase price of said Lateral Canal, above described, and the continuation thereof from Lancaster to Athens, as well as the loan above referred to, made for the purpose of constructing said canal, was paid out of the canal fund of the state of Ohio, which said fund was, in part at least, created by the proceeds of the sale of said lands granted to the state of Ohio as hereinbefore stated. And thereupon the said canal was constructed by the state of Ohio and became and was, and ever since has been, an extension and continuation of the Ohio Canal from the village of Carroll to its termination in the said county of Athens.
    The plaintiff further says, that ever since the construction of said canal, which is and has been known as the Hocking Canal, the same has been, and still is, a public highway, which has been used for the use of the state of Ohio and the government of the United States, in pursuance of the several acts of congress and of the general assembly of the state of Ohio, hereinbefore set forth.
    Plaintiff further says, that said canal cuts off from plaintiff’s said land all the drainage from lands lying east therefrom, and the waters falling upon said lands east of plaintiff, as aforesaid, all run and flow into said canal, and plaintiff has provided for the drainage of all the water falling upon his said lands by means of tile drains, as before mentioned.
    Plaintiff further says that the abandonment of the canal and the construction of said railroad will place increased burdens upon his said lands; will subject his said lands to the flow of waters from the east, which since the year 1836 have been intercepted by said canal, and subject them to overflow and render them unfit for the purposes of cultivation and greatly less valuable.
    The plaintiff further says that the sai'd act under which the said defendant claims the right to enter upon and take possession of the said canal, and to construct and operate a railroad thereon, passed May 18, 1894, confers no authority, power, or right upon said defendant to enter upon said lands and to use the same for the purposes of building and operating a railroad, or for any other purpose.
    Plaintiff says that the said act is null and void, for the following reasons:
    1. Because the said act conflicts with section 10, article 1, of the Constitution of the United States, which provides that “No state shall pass any bill impairing the obligation of contracts.”
    2. Because said act conflicts with section 28, article 2, of the Constitution of the state of Ohio, which provides that “The general assembly shall have no power to pass laws impairing the. obligation of contracts. ’ ’
    3. Because said act conflicts with article 13, section 1, of the Constitution of the state of Ohio, which prohibits the Legislature from passing any special act conferring corporate powers.
    4. Because said act conflicts with section 16, article 2, of the Constitution of the state of Ohio, which provides, that “No bill shall contain more than one subject which shall be clearly expressed in the title.”
    • 5. The plaintiff further says that the said Hocking Canal was at the time of said grant, and now is, worth at least from $600,000 to $700,000 for the purposes of the right of way for the construction of a railroad. That at the time of the passage of said act, the legislature of Ohio had before it a proposition from another railroad company duly incorporated under the laws of this state, having a larger capital and greater responsibility than the defendant, and which proposed to use said canal for the construction of a railway exactly as proposed by the defendant and proposed to construct the railroad in a much shorter space of time; the sum so offered by said other company being $5,000 a year larger than that for which said right of way was granted to the defendant, and at the same time it was proposed to the legislature that if such property was offered'to'competitive bidding the said other corporation would bid for the same an annual rental upon the basis of a valuation of $500,000.
    6. The plaintiff further says that while the grant to the defendant of said canal as hereinbefore stated, was in form a lease thereof, yet in substance and in fact it was a donation of the greater part of said property to the said defendant for its own private purposes. That said act is null and void because it is against public policy, and against the rights and interests of the people of Ohio, and it is not within the grant of legislative power given to the general assembly by the provisions of article 2 of the Constitution of Ohio.
    7. The plaintiff further says that the Lancaster Lateral Canal Company, which constructed the part of said Ohio Canal between Carroll and Lancaster, acquired only the easement for the purposes of navigation along and over the lands through which said canal was located and constructed, and that by the conveyance of that part of the said property by said company to the state of Ohio, the state of Ohio only acquired the same right and interest in and to that portion of the said canal which the said Lancaster Lateral Canal Company-had at the time of its said conveyance.
    8. The plaintiff further says that as the said grant made by the said act of the general assembly of May 18, 1894, purports to convey a greater title than the state had in the said canal property, and also attempts to confer upon said defendant the right to use the said property for purposes other and different from that for which the state had the right to use the same, the said grant is excessive and greater than the general assembly of Ohio had the power to convey and therefore void.
    The plaintiff further says that the said defendant is about to comply with the terms and provisions of the said act of the general assembly of date of May 18,1894, and has already given bond to the state of Ohio, as provided for in said act, and the said defendant has made payment of the money provided to be paid by the said defendant in said act, and the said defendant is also unlawfully making preparations to build, maintain and operate said railroad upon said Line and upon said canal, and for this purpose it is unlawfully and without authority threatening to take possession of said canal and all said property and fixtures connected therewith for the sole purpose of building, maintaining and operating a railroad thereon for all time to come, which, if consummated, will constitute a permanent injury and destruction of plaintiff’s property and rights; that the said defendant, by the destruction of said canal, will irreparably injure the lands of plaintiff, hereinbefore set forth, and will destroy the value of the drainage system which said plaintiff has constructed upon his land, and will also place very large additional burdens upon said plaintiff’s lands, and great and irreparable injury will be done the plaintiff in the premises, unless the defendant is restrained from taking possession of said canal and constructing the railroad thereon.
    The said plaintiff, therefore, prays the court here, that the said defendant may be enjoined from entering upon said canal property and taking possession of the same, and from doing any of the acts which are now threatened by the said defendant in the premises, and especially that the said act of the general assembly of Ohio of date May 18, 1894, under which the said defendant claims to-be acting, may be declared by the court to be null and void, and that upon a final hearing the plaintiff may have a perpetual injunction restraining the defendant from doing" any and all the acts herein complained of, and for all other and proper relief in the premises. ’ ’
    The facts by which each of the others are distinguished, will be noticed in the opinion. Briefly they may be stated as follows:
    Shotwell claims a contract with the state for the use of water from the canal with which to sprinkle the streets of Logan, and which he claims the act violates.
    Wright claims a contract with the state to enlarge and forever maintain a dam across the Hocking river at a point above his grist mill, near Logan, so as to furnish a sufficient supply of water both for the canal and his grist mill.
    Walsh claims to own land on both sides of and adjoining what was known as the Lancaster Lateral Canal, now a part of the Hocking Canal. That, as to this part of the Hocking Canal, the state has simply an easement in the property. That on the abandonment of the canal, through his premises, the land reverted to him, and. that the state has no power to lease or grant it to others, or place additional burthens upon it. In this respect his claim is similar to Vought’s.
    The cases were appealed to the circuit court, and there submitted on the demurrer to the petition in each case. The court sustained the demurrer and dismissed each case. The action of the court in this regard is assigned for error.

      R. A. Harrison; J. B. Foraker; T. E. Powell and P. J. Ryan, for plaintiffs in error.
    The act is unconstitutional and void, because it conflicts with section 1 of article 13, of the Constitution of Ohio, which provides: “The general
    assembly shall pass no special act conferring corporate power. ”
    This provision has been construed by our Supreme Court to mean:

      Fi/rst — No corporation shall be created by special act.

      Second — Corporate powers shall not be conferred upon any corporation created under the general laws by special act.

      Tlvird — No additional corporate power shall be conferred upon a corporation created under the general laws by a special act of the general assembly.
    While it is true that the Columbus, Hocking Valley & Athens Railroad Company was incorporated under the general laws of this state, still if any additional corporate power has been conferred upon it by this special act, then such act is in conflict with the above constitutional provision, and viod.

      This act confers upon this railroad company the exclusive right to use and operate a railroad over this public highway. In the case of Railroad Company v. Railroad Company, 36 Ohio St., 239, it was held that a municipal corporation could not confer upon a street railroad the exclusive right to the use of the streets.
    This act enlarges the corporate power of this railroad company in three respects:

      First — It grants to this corporation the right to acquire and operate a railroad by lease alone.

      Second — It confers upon this corporation the power to divert a public highway from the purposes for which it was originally constructed, and to to use it, exclusively for purposes entirely different.

      Third — It grants to this corporation the exclusive right to use and control this highway, a power which the legislature cannot confer upon any corporation whatever. If the Hocking Canal had remained a public highway for navigation purposes, the legislature of Ohio could not confer upon any corporation the exclusive right to operate boats over the line of the canal, thereby giving it a monopoly of the transportation business.
    The following authorities are relied upon to support our proposition that this act confers corporate power. Atkinson et al. v. M. ds C. R. R. Co., 15 Ohio St., 21; State ex rel. v. Cincinnati, 20 Ohio St., 18; State ex rel. v. Cincinnati, 23 Ohio St., 445; State v. Mitchell, 31 Ohio St., 592; State v, Constantine, 42 Ohio St., 442; State v. Pugh, 43 Ohio St., 98; State v. Anderson, 44 Ohio St., 248; Commissioners v. State ex rel. Brockmann, 50 Ohio St., 653; City v. Spring Valley Water Worses, 48 Cal., 509.
    The act in question violates section 10 of article 1, of the Constitution of the United States, which ordains that “No state shall pass any bill impairing the obligation of contracts. ”
    The act of congress approved May 24, 1828, by which the United States then granted to the state of Ohio 500,000 acres of the lands owned by the United States within the state, for the purpose and upon the conditions in the act contained, and the act of the general assembly of Ohio passed December 22, 1828, declaring the assent of the state of Ohio to the provisions and conditions of said act of congress, constitute a contract.
    A grant is an executed contract. If a law is in its nature a contract and rights have become established thereunder, it cannot be repealed. Fletcher v. Peck, 6 Cranch, 88.
    A compact between the United States and states to secure rights of way to carry United States mails, was construed in Searight v. Stokes, 3 How., 151; and Weil v. Ohio, Id., 720.
    In 1831 this state passed an act proposing, with the assent of congress, to take under its care that portion of the Cumberland road within its limits, and to apply the tolls to the repair of the road, and containing a proviso exempting toll for the passage of any stage or coach conveying the property of the United States and persons in its service. Congress passed a law assenting to this act.
    In 1831, Pennsylvania, about two months after the passage óf the law of Ohio, passed an act similar.
    In 1836 the legislature of Pennsylvania passed an act imposing a toll upon carriages carrying the mail of the United States over that part of the Cumberland road within the state. The court held this act to be in conflict with the compact between the state and the United States arising from said act of 1835, under which the state took possession of the road. McGhee v. Mathis, 4 Wall., 143; Lake Superior B. B. Go. v. United States, 3 Otto, 442; Green v. Biddle, 8 Wheaton, 1; Ntoic ex rel. v. Baihoay Go., 37 Ohio St., 153.
    A contract of a state with another state, or with an individual, whether it assumes the form of a grant or not, is a contract within the prohibition of the Constitution of the United States. New Jersey v. Wilson, 7 Cranch, 164; Fletcher v. Peck, 6 Id., 87; Winter v. Jones, 10 Georgia, 190; Adams v. Hackett, 7Poster, 294; Providence Banh-v. Billings, 4 Pet., 560; Woodruff v. Trapnail, 10 How., 190; Wabash, etc., Go. v. Beers, 2 Black, 448.
    It is now quite settled that the clause as to the constitutional inviolability of contracts, is to be construed by itself, so far, at least, that there is no contract which a state Jaw can effect which is not within the constitutional prohibition. Hence a contract between two states, or a contract between a state and an individual, is a contract within the sense of this clause and for the purpose of protecting its inviolability. DeWitt v. Harvey, 4 Gray, 499. The threatened action of the defendant will disturb the vested rights of the plaintiff as alleged in his petition. Street Baihoay v. Oumminsville, 14 Ohio St., 523; Boberts v. Easton, 19 Ohio St., 78; Baihoay Go. v. Lawrence, 38 Ohio St., 41.
    An injunction will be granted for the protection of an easement or a servitude in water, and an easement in water, acquired by prescription, is as absolute as any other right, and equity will restrain its violation when such violation is productive of any serious injury. Hulme v. Shre've, 3 Green (N. J.) Oh., 116; Bepley v. Welsh, 23 Gal., 452; Sheboygan v. S. B. B. Go., 21 Wis., 667; Oioen v. Field, 12 Allen, 357: Wilcox v. Wheeler, 47 N. H., 488.

      An injunction is the only remedy by which, in such cases as this, the property owner cannot obtain the protection guaranteed to him by section 19 of the “Bill of Rights” of this state.
    The act providing for the abandonment of the Hocking’ Canal and the leasing’ of the same for railroad purposes is invalid, null and void, as claimed in plaintiff’s petition, for the reason that the legislature purports to grant a greater title in the Hocking Canal to the grantee than the state of Ohio possesses.
    The title to the state of Ohio in that part of the Hocking Canal between Carroll and Lancaster, is not a title in fee simple, as is the title to the remainder of the canal property of Ohio, including the remaining portions of the Hocking Canal beyond Lancaster, it is simply an easement for canal purposes, under the different acts pleaded in the plaintiff’s petition.
    The state of Ohio came into possession of that part of the Hocking Canal which lies between Carroll and Lancaster, by purchase from the Lancaster Lateral Canal Company, a private corporation which constructed the canal under the authority of its charter as received from the Ohio legislature.
    The state of Ohio, under an act entitled, “An act to provide for the general improvement of the state of Ohio by navigable canals,” passed February 4, 1825 (See 2 Chase, page 1475, section 8), constructed the general canal system of the state, and under said act had authority to take land by purchase or gift, and also to appropriate land that was necessary in the construction and maintenance of said canal system. The title to all land appropriated under this act which vested in the state of Ohio, was expressly provided by that statute to be' a fee simple title.
    Map Showing Lancaster Lateral and Hocking Canals.

    But the title which the state of Ohio acquired in that part of the Hocking Canal which lies between Carroll and Lancaster, is an entirely different title from that which it acquired in lands appropriated under the general canal act of 1825. (See Volume 24, Ohio Laws, 71.) By this act of incorporation, the Lancaster Lateral Canal Company was constituted and declared a body corporate and politic “for the purpose of making a navigable canal from the town of Lancaster to such point of the Ohio Canal as shall be found most eligible.” Oregon By. <& Wav. Oo. v. The Oregonian By. Co., Limited. (See 130 U. S., page 1.)

      Afterwards, to-wit: March 9,1838, by authority of an act entitled ‘ ‘An act to authorize the board of public works to purchase for the use of the state of Ohio, the Lancaster Lateral Canal,” said Lancaster Lateral Canal was purchased by the state of Ohio, and, thereupon, became in fact and in law a part and parcel of what is now known as the Hocking Canal, and is embraced in the act of abandonment in question.
    The act of incorporation of the Lancaster Lateral Canal Company specially provided that the title which this company should h'ave in lands which they appropriated for the purpose of constructing their canal should be “to the extent and for the purpose set forth in or contemplated by this act.” This question has been determined in Ohio. The Warren County Canal Company incorporated by a special act of the legislature, February 22,1830. Volume 28, Ohio Laws, 124, and volume 34, Ohio Laws, 135, Corwin v. Cowan, 12 Ohio St., 629.
    When the state of Ohio abandoned the part of the Hocking Canal which it had originally secured from the Lancaster Lateral Canal Company as it does by the first section of the act in question, it ceases to have any further title in said property.
    Where the state has no title to the thing- granted, the grant is absolutely void. Polk's Lessee v. Wendell et al., 5 Wheat. Rep., 293.
    Legislative grants are not warranties, and the rule of the common law must be applied to them, that no estate passes to the grantee except what was in the grantor at the time. Bice v. Bail/road Company, 1 Black’s Report, U. S. Supreme Court.
    Where the state makes a grant and purports to give a greater title 'than she possesses, the grant is void. This doctrine prevails from the common law wherein grants from the crown can be avoided in three ways: (1) Where the grant professes to give a greater estate than it possessed in the subject-matter of the grant; (2) where the same estate, or part of the same estate, has already been granted to another; and (3) where the crown has been deceived in the consideration expressed in the grant. Am. and Eng. Ency. of Law, vol. 9, page 45, “Grants.”
    A purchaser from the state takes such title as the state is authorized to convey. Webster v. Clem-, 49 Ohio St., 392; New Orleans v. United States, 10 Pet., 731; Governev/d s Heirs v. Robertson, 11 Wheat., 332.
    The grant of this property to the defendant for the use and purpose of a railroad being void, as we claim, for the reason that the legislature has no right to make such a grant, the plaintiff may appeal to the court by injunction to preserve his rights where such alleged grant would interfere with them. Le Clercq et al. v. Trustees of Galliepolis, 7 Ohio, 221; Reynolds’’ Widoto v. Commissioners of Stark County, 5 Ohio, 204; Cooley on Con. Lim., 211.
    How this grant should be construed. Slidell v. Granjean, 111 U. S., 437; Charles River Bridge v. Warren, 11 Pet., 420; Dubuque da Pacific R. R. Co. v. Litchfield, 23 How., 66; The Delaware R. R. Tax, 18 Wall., 206.
    Public grants are to be construed strictly, not extended by implication. Jackson v. Lamphi/re, 3 Pet., 280; Beaty v. Hnowler, 4 Pet., 152; Providence Bank v. Billings, 4 Pet., 514; United States v. Arredondo, 6 Pet., 7S6.
    Grants to corporations are to be construed strictly against the corporation and in favor of the public. Bice v. B. B. Go., 1 Black, U. S., 359.

      JD. L. Sleeper; Selwyn N Owen; O. H. Grosvenor and John J. Stodda/rt, for defendant in error.
    1. The state has the right to abandon any portion of her canals, and to authorize a change of use from one to another of a like kind, and that property used for canal purposes, by consent of the legislature, maybe used for railroad purposes, both being public highways for the transportation of persons and property, and differing only in the method of transportation. Fox v. Cincinnati, 104 U. S., 783; Hatch v. Bcoib-'oad Co., 18 Ohio St., 92; Hubba/rd y. Toledo, 21 Ohio St., 379; Malone v. Toledo, 28 Ohio St., 643; Elevator Go. v. Cincinnati, 30 Ohio St.,629; Foxy. Cincinnati, 33Ohio St., 492; Fauger y. Boa/rd of Public Works, 42 Ohio St., 607; Canal Oo. y. Commissioners, 27 Ohio St., 14; Me Comb v. Stewa/rt, 40 Ohio St., 647; People y. Kerr, 27 N. Y.; Cooley’s Const. Lim., 554; Brel v. Wabash <& Erie Cancil Co., 25 Ind., 409; Tuckahoe Ganal Co. v. Tuckahoe Bailroad Co., 11 Leigh, 42; Cooley’s Const. Lim., 102, 104, 105, 216 and 218; Cook on Stocks, 923; Wood on Railroads, 937 ; 34 Maryland, 463; BexfordY. Knight, 10 N. Y., 308; Halderman v. By. Co., 50 Pa. St., 425; Craig y. Mayor, 53 Pa. St., 427; Bobinson v. Company, 72 Pa. St., 316; Mason v. Co'mpany, 9 Bassell (U. S.), 239; Nelson y. Fleming, 56 Ind., 310; Watenoorks v. Burkha/rt, 41 Ind., 364; State v. Company, 37 Ohio St., 174; Stale y. Snook, 53 Ohio St., 521; State v. Pennsylvania Co., 53 Ohio St., 189; BichmBs v. Cincinnati, 31 Ohio St., 506.
    If an additional burden has been placed upon the premises of the plaintiffs, Walsh and Vought, by the building of the railroad instead of the canal, they have an ample remedy at law, and could proceed under section 6448 of the Revised Statutes of Ohio, to compel such appropriation and payment. A court of chancery will not interfere by injunction when there is an ample remedy at law. 10 Am. & Eng. Ency. of Law, 783; Glenn v. Fowler, 8 Gill and J. (Md.), 340. Ilulse v. Wright, Wright’s Rep., 61; MeGornb v. Stewart, 40 Ohio St., 663.
    2. The contract does not impair the obligation of any contract, between the state and nation, or between the state and any of its citizens.
    We have no difference with counsel for plaintiffs in error upon the decisions quoted in their brief as to the binding force of agreements between the national and state governments such as that in 3 Howard, 151. Those cases decide as to the effect of grants with a proviso and acceptance, as between the two governments — the parties to the contract. In the case at bar neither of the parties to the contract are complaining. The complaint here comes from one who complains because the parties to the contract are satisfied, and his complaint is not for their benefit but solely for his own private benefit.
    The statutes conferring upon the agents of the state the power to grant the privilege to use the surplus water of the canal only conferred the power to so contract for its use for hydraulic purposes, it did not confer the authority to have the water for sprinkling purposes. Laws of 1841, page 74; The State exrel. etc. v. Raihoay Go., 37 Ohio St., 174.
    Mr. Wright nowhere directly alleges that the agents of the state agreed that water should forever be taken from the canal to run the mill. If, however, such agreement had been made it would not be binding on the state, because such agreement would likewise have been beyond the power of the state’s agents. Elevator Go. v. Cincinnati, 30 Ohio St., 630.
    The abandonment of her public canals by the state, creates no liability on her part to respond in damages resulting therefrom to parties holding leases of “ surplus water ” under the act of March 23,1840. Hubbard v. City of Toledo, 21 Ohio St., 379; Cooper v. Williams, 4 Ohio, 253; Buckingham v. Smith, 10 Ohio, 288; Foxy. Cincinnati, 33 Ohio St., 492, affirmed in 104 U. S., 783; State ex rel. v. Board Public Works, 42 Ohio St., 615-,Erkenbrecher v. Cincinnati, 2 C. S. C. R., 412; Haldoman v. Pa. R. R. Co., 50 Pa. St., 440.
    3. The act does not confer corporate powers; but if it did and is a general law it is still valid.
    The act purports to grant to the defendant the right, franchise, and privilege of constructing, maintaining, and operating over and along the Hocking Canal and the property of the state of Ohio, adjacent thereto, a railroad, with single or double tracks, side-tracks, switches, bridges, stations, and other structures usual and incidental to the operation of a railroad, and to the successors and assigns of the defendant for the term of ninety-nine years renewable forever, for the consideration named in the act.
    Beyond these provisions no power is granted that an individual may not exercise. Surely the power to pay $50,000 down and $10,000 annual rental is not a corporate power. Anybody who has the money can do that without resolving himself or themselves into a corporation or assuming corporate powers or franchises.
    We must not forget that the defendant was a railroad corporation when the state first began to deal with it. We must not forget that every pretended power which the act purports to grant to it was already possessed by it. Sims v. Street Railroad Go., 37 Ohio St., 556; Commissioners v. Rosehe Bros., 50 Ohio St., 103.
    4. That section 16 of Article II, of the state Constitution, which provides that “no bill shall contain more than one subject,” is directory merely, and its violation does not vitiate the act. State ex rel. v. Covington, 29 Ohio St., 102; Pirn v. Nicholson, 6 Ohio St., 176; Miller v. State, 3 Ohio St., 475.
    5. That it is the sole province of the legislature to determine the value of the property of the state, and the adequacy of the consideration therefor, and its acts in that regard are not proper subjects for judicial review.
    The court will not inquire into the motives of the legislature, or whether an act is just or unjust, politic or impolitic, provident or improvident. Cooley Const. Lim., 220; Wire Co. v, Brown, 64 la., 275; Probasco v. Raine, 50 Ohio St., 378.
    The long line of decisions above referred to clearly establishes the doctrine that the legislature has full and ample power to abandon her canals and authorize their use for street or railway purposes. This question has become “stare decisis.” Dugan v. Campbell, 1 Ohio, 119; Smith v. llarmoning, 42 Ohio St., 254; Kearney v. Buttles, 1 Ohio St., 362.
    6. The title of the state in the portion of the canal acquired from the Lancaster Lateral Canal Company is not an easement for transportation by canal only, but is a fee title held for the general purposes of a public highway for transportation and commerce. 23 Ohio Laws, 56, section 8; Ohio ex rel. v. Railway Co., 53 Ohio St., 243; State of Ohio v. Snook et al. 53 Ohio St., 531.

      Beginning with the 5 Ohio, 115, and ending with the 53 Ohio St., 521, the general trend of the decisions has been in the direction of the principles announced in the last case. No other conclusion could logically follow. There can be no distinction made between a strip of land acquired upon which to build a portion of the canal system and a strip of land acquired for a portion of the same system upon which a canal has been already built. The object of the acquisition is the same in both cases. The thing ultimately produced is the same, namely, an addition to the canal system. Bexford v. Knight, 11 N. Y., 308; Malterman v. Penn. B. B. Co., 50 Pa. St., 425; Craig v. Mayor, 53 Pa. St., 477; Bobinson v. Penn. B. B. Co., 72 Pa. St., 316; Mason v. Lake Erie, etc., By. Co., 9 Biss. (U. S.), 239; Kelsons. Flemming, 56 Ind., 310; Waterworks Co. v. Burkhart et al., 41 Ind., 364.
    A land owner alleging that the land was taken and held wrongfully without his consent and against his protest has his only remedy for the land taken and for injury to his other land under section 6448, Revised Statutes (69 Ohio Laws, 88), to compel an appropriation. Ilatry v. P. <& Y. By. Co. et al., I. C. C., 428.
    Where, however, the highway is occupied by the company under an agreement with the public authorities having control of it, the owner may compel the institution of proceedings for its condemnation under section 6448, Revised Statutes. Bailroad Company v. Bobbins, 35 Ohio St., 531; Bailroad Company v. Williams, supra; Bailroad Company v. O'Marra, 48 Ohio St., 353.
    7. That the allegations of the petition inconsistent with, or controverted by law, are not admitted to be true by the demurrer, and that the 5th, 6th, 7th and 8th. propositions in the plaintiff’s general statement are not merely questions oí fact. State v. Archibald, 52 Ohio St., 1.
    The plaintiffs have no vested rights growing out of advantages arising from the fact that the canal joins their lands.
    Our claim is that no citizen had the right to go upon the state property within the lines of the right of way of the canal or to use any part of the state’s property within this line, for individual use or for private purposes, that the statutes- of this state prohibited everything from trespassing on said property, by penal statutes in force ever since the canal, had been in existence. White v. Ohio, 14 Ohio, 468; Revised Statutes, sections 218-70.
    The privilege granted to any private citizen was merely a matter subservient to the use for which the right of way was originally acquired and was only by sufferance.
    Canals do not come under the terms “ways” or “public lands.” State ex rel. v. RaihocCy Co., 37 Ohio St., 175.
    It has been decided by this court that two classes of benefits inure from the construction of the canal, ‘ ‘General and Accidental. ’ ’ Cooper et al. v. WilUams, 4 Ohio, 253.
    This decision has been noticed for many years, that no vested rights could be acquired in any of the matters mentioned in the decision. Buckingham v. Smith et al., 10 Ohio, 288.
    There can be no claim for damages on account of the loss of the convenience of watering farm stock at the canal. Hatch v. Railroad Company, 18 Ohio St., 122.
   Minshall, J.

The grounds on which the act in question is claimed to be unconstitutional are stated in the answer. They are, 1. That it is a special act conferring corporate power. 2. It impairs the obligation of contracts. 3. It contains more than one subject of legislation. It is sufficient to say in regard to the latter, that it has been permanently settled by the decisions of this court, that the provision of the Constitution on which this objection is placed, is directory and not mandatory; and that a law cannot be held invalid because it contains more than one subject of legislation.

With, regard to the first ground: If this act were the only source of the company’s authority to be a corporation and construct a railroad, the validity of the act might well be questioned. The company, however, is one organized under the general laws of the state, and has the same corporate powers and franchises, possessed by railroad corporations in general. Hence, its corporate powers and franchises are not conferred on it by this act; they are derived from the general law; and the provisions of the act in this regard are superfluous and cannot of themselves impair the validity of the act. As a railroad corporation it possessed, by general law, the power to build a railroad between the termini named, and to acquire by purchase or condemnation a right of way for its road, and other property necessary for its operation. And if it were competent to the state to abandon its canal and dispose of it to any purchaser, as has been frequently held, it was competent to the company to purchase it for the uses of its road. The transaction authorized by the law was simply an abandonment of ihe Hocking Canal by the state, and the disposition of it to an existing railroad corporation for a consideration agreed on. The fact that the state through its legislature saw fit to deal with this company rather than some other one, or did not offer the property at a competitive bidding, or might have made a better bargain, cannot affect the validity of the law. Such matters must necessarily be left to the discretion of the legislature, acting for the state in the disposition of its property. There is no constitutional provision limiting its power in this regard. For its wisdom and integrity in exercising this power, the legislature is responsible to the people and not to the courts.

The case of the City and County of San Francisco v. Water Works Co., 48 Cal., 493, is cited to show that the act in question here, confers corporate power. This we think is not the case. The grant there was of an easement in the streets of a city. The court held, and properly, that the state had no proprietary interest in the streets of a city dedicated to public use; that such a grant was the grant of a franchise, which could not be made by a special act. Here, however, the state was the proprietor of the Hocking Canal, and could, as it did, grant it, not as a franchise, but as property of which it was the owner.

It is also contended that the act confers a power on the defendant to lease a railroad not conferred on other roads under like circumstances. It is a sufficient answer to this to say, that the power conferred is not to lease a railroad, but to lease land for the purpose of a railroad in process of construction; and this any company may do in acquiring its right of way. The state has no railroad to lease, it has simply land for such purpose. The company by the lease does not obtain the control of a competitor, it can, at most, become a competitor of another road; and the provision for leasing is, therefore, neither within the letter nor spirit of the law regulating the leasing of one road by another.

We come now to the question, Does this law, as claimed, impair the obligation of contracts? As a first instance of this, it is claimed, that it violates a contract of the state with the general government. The facts are stated in detail in the petition. From these it appears that the general government in 1828 donated 500,000 acres of land to aid the state in the construction of its canals. A portion of the proceeds of these lands were used in constructing the Hocking Canal. • By the act making the donation, the terms of which were accepted by the state, it was provided that, “the said canals when completed or used, shall be and forever remain, public highways, for the use of the government of the United States free from any toll or charge whatever, for any property of the United States, or persons in their service passing along the same.” It will be observed that the provision does not in terms oblige the state to keep up and maintain the canals for all time. The obligation is limited to the time “when completed or used.’’’1 To require them to be kept up for all time, irrespective of their utility, would be unreasonable and could not have been intended by the parties. It must certainty have been contemplated that, in course of time, the canals might become useless, as they have, for the purposes of commerce and navigation. The contract, as all others, must be given a reasonable construction. If such contingencies were not contemplated, yet an exception to the obligation would be created, by the law of reason, and the state might abandon them without violating its contract with the United States. The reasonable construction of the language then is, that, since the state is not by express language bound to keep up the canals for all time, so long as they are kept up and used, the obligation in favor of the general government shall be observed; and when they cease to be kept up or used, the obligation ceases. This must have been the implicit understanding of the parties at the time; and therefore the state does not by this act impair the obligation of its contract with the general government. But a more decisive answer to this contention is, we think, that none of these parties show that they were in any way parties to the agreement between the state and the United States, or that it was made for their benefit. They cannot insist that the contract of the state with the United States shall be maintained for their benefit. The United States has not heretofore made, nor is it now making, any objection, and it would seem time enough to consider the matter when it does. Wright, one of the plaintiffs, says he made the improvements on his mill with reference to the contract, though there is not a word in the contract of his predecessor, Worthington, from whom he claims to derive his rights, in respect to the matter. But what legal right has anyone to make investments on the faith of a contract between others and to which he is not a party or privy and insist for that reason that the contract shall be observed by either of the parties? We see none.

We pass now to a brief notice of the special facts of the several cases. Wright insists that the abandonment of the canal will impair the obligation of a contract made between the state and his predecessor in title, Thomas Worthington, to whose rights he has succeeded; and which was made at the time the canal was constructed. Worthington then owned a grist mill located on the Hocking river, which was supplied with water from the river by a dam constructed on it. That in consideration of his granting the state the right to construct the canal through the river and his lands and to appropriate the water to the use of the canal, the state agreed to enlarge and forever maintain the dam across the river above the mill, so as to afford an ample supply of water both for the canal and the mill. He does not, and cannot, claim any title in the canal or its lands. This part of the canal was constructed under the act of 1825 whereby the state took a fee simple in all the lands appropriated by it for the use of its canals. State ex rel. v. Railway Co., 53 Ohio St., 189, 243; State of Ohio v. Snook et al., 53 Ohio St., 121; Malone v. Toledo, 34 Ohio St., 541. Whether the obligation of this contract is one that runs with the land in favor of a purchaser of Worthington, or was simply personal and did not accompany the land in the ownership of others, or whether it appears, from the facts alleged, that he will be injured by the vacation of the canal, or is such an obligation as must end with the abandonment of the canal, (Hubbard v. Toledo, 21 Ohio St., 379; Fox v. Cincinnati, 33 Id., 492,) need not be determined in this case. His remedy would be in damages for the breach of the contract and not to enjoin the company from entering upon the lands purchased from the state, and in which he has no interest. His remedy, if any, is saved to him by the provision in the statute, that “the company shall not disturb any vested rights or privileges of abutting property holders along said canal, and shall hold the state harmless from all loss or damages resulting to such property holders by reason of the construction and operation of said railroad.!!

What has just been said applies with equal, if not greater, reason to the claim of Shotwell. It is certainly settled by the decisions just cited, that a contract made by the state through its board of public works with an individual for the use of the water of any of its canals for a period of years, terminates with the use of the canal, and that it is under no obligation to keep up the canal for such purpose, after the canal has become useless for the purpose of navigation and has been abandoned. The agents of the state have no power to make such a contract in the name of the state or to bind it thereby.

It is claimed by some of the plaintiffs that they have interests in the canal as abutting property holders, and that they cannot be deprived of these rights without compensation, and may enjoin the company from taking possession of the lands until their interests have been condemned and paid for by appropriation proceedings. The company is enjoined by the statute from interfering with the vested rights of abutting owners, until compensation has been made. It does not, however, define what these vested rights are. Manifestly to be vested, they must be such as are recognized by law, as property of an individual that could be enforced against the state. If the right does not exist as against the state, it does not as against the company. Fox v. Cincinnati, 33 Ohio St., 492, 502. The claim of these parties is based upon the decision in Street Railway Co. v. Cummingsville, 14 Ohio St., 523. That was the case of a street that the company was about to occupy with its track, and two of the defendants in error were abutting property holders on the street; and it was held that they had such rights in the street for the purposes of ingress and egress-as could not be taken until paid for. But the owner of property abutting on a canal has not the same, nor a similar, interest in it, that an owner of property abutting on a highway or street has. The owner of property abutting on a street or highway has, for the purposes of access to his property a direct and not an incidental interest in the street. It is one of the purposes for which the street was established. But an owner of property abutting on a canal has no such interest in the canal. Such benefits as he may derive from it in the way of water, drainage, etc., are accidental and the fact that he is an abutting owner confers no right on him to insist that the canal shall be kept up and maintained to secure him in the enjoyment of such advantages; and can maintain no action to prevent the canal from being abandoned. This is well settled by the decisions in this state, and seems well sustained by reason and the analogies of the law. In general, one owner can claim no right to such advantages as he may enjoy from the manner m which an adjacent owner may, for the time being, occupy and use his own property. Hence, the claim of Vought, that he cannot be deprived of the use of the canal as a means of drainage for his farm, until compensation has been made him for the benefit thus conferred on his land, though he has put in many miles of tiling with reference to the canal as a means of drainage, cannot be sustained.

Finally it is claimed by Vought and Walsh that the portion of the canal on which their lands are situate was formerly owned and constructed by the Lancaster Lateral Canal Co., a private corporation organized under an act of the legislature in 1826 (24 Ohio Laws, 71). That under an act of the legislature, the state purchased the canal of this company in 1838, and it then became a part of the Hocking Canal. That by the terms of the act under which the Lateral Company was organized it only took an easement in the lands taken by it for canal purposes, and that the state by the purchase acquired no other or greater title than the company had to convey; and hence that on the abandonment of this part of the canal the land reverts to the owners of the freehold. The question here presented seems settled by the previous decisions of this court. In Corwin v. Cowan, 12 Ohio St., 629, the question arose as to the title to the Warren County Canal, after it had been abandoned by the state. The canal had been constructed, as in this ease, by a private corporation, organized under an act of the legislature, and was afterwards purchased by the state and made a part of its canal system under an act of the legislature. The company had been authorized by its charter to enter upon, take and use such lands as might be necessary for the location and construction of its canal. The court held, that the act authorizing the purchase of the canal was prospective in its nature and did not affect the locations and appropriations of lands which had previously been made by the canal company, and that the easement which the company had acquired by location and appropriation, passed to the state under the act without being enlarged into a fee simple estate in the lands so appropriated; and further that upon the abandonment of the canal by the state, the easement terminated, and the right to the possession of the lands constituting the line of the canal reverted to the owners of the freehold. A similar question arose in the case of McComb v. Stewart, 40 Ohio St., 647, and it is there said, page 665, “whether the property-taken is paid for in money or in accruing benefits and advantages, it should clearly appear by the terms of the act that it was the legislative intent to take a fee before such effect can be given to it. In the absence of express words, a fee will not be deemed to be taken where the purposes of the act will be satisfied with the taking of an easement.” Citing Washington Cemetery v. Railroad Co., 68 N. Y., 591. The judge then quotes from Cooley as follows: “In any case an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest. ” Const. Him., 559.

' A careful consideration of the act under which the Lateral Company acquired its lands for canal purposes, fails to disclose any purpose whatever to authorize it to acquire a fee simple therein. It is provided in section 8 of the act that it should be lawful for the directors “to enter upon and take possession of lands, etc., necessary to make said canal;” and in case the lands are not given or granted, and they are unable to agree with the owner, to appropriate the same. When appropriated they are to take a complete title to the premises to the extent and for the purposes set forth in and contemplated by the act. The purpose contemplated by the act is the use of the land for canal purposes so long as the canal is maintained. So that when the use ends the title, they were permitted to take, ends; for it is not a title in fee simple they are permitted to take, but a complete one for the uses and purposes of the canal. The company could not then when the use ends sell them to others, on the contrary the lands must revert to the owner of the freehold. And, as held in Corwin v. Cowan, the state took no greater estate in the lands than the company had to convey, the result is the same, on their abandonment by the state for canal purposes, as if the company had continued to use them to the time of the abandonment.

What has just been said relates, however, to the simple abandonment of a canal, as in the case of Corwin v. Cowan, supra. Where, however, as in this case, the abandonment of a canal is made as part of a transaction by which the easement is conveyed by the owner for a similar use — as for the purposes of a railroad — the original easement in the lands is not extinguished, but passes to the purchaser, who takes it subject to the duty of making- compensation to the owner of the freehold for the additional burthen imposed on the land, and such damages as may result to him from the new use. Hatch v. Railroad Co., 18 Ohio St., 92, 122. In this case the canal, by an agreement between the canal company and the railroad company, had been acquired and taken possession of by the latter company; and on the claim of the plaintiff, a landowner, the court said: “The plaintiff was entitled to compensation from the railroad company for the full value of such land as it may have taken from him not embraced in the appropriation made by the canal company; and for such additional burdens as may have been imposed on the lands covered by the original appropriation; and for damage done or accruing to his adjacent lands, by reason of the additional burthen, if any, and of the change of structure and of use from those of a canal to those of a railroad, in so far as such damages are peculiar to himself as a proprietor, and not common to the public at large. As the owner of land, subject to a perpetual easement, but appropriated and paid for only for the purposes of a canal, he had rights which the railroad company cannot be permitted to ignore; and which, we think, it ought to have instituted proceedings regularly, under the statute, to condemn and pay for, before it ventured to divert the easement to uses so varient from those originally intended. But this not having been done, and the plaintiff having resorted to this action for compensation, the rights of the parties are governed by the same principles which would have been applicable in such a proceeding. ’ ’ The principles of this case have never been disturbed, and may be regarded as the settled law of the state. It settles the rights of the parties in the cases of Vought and Walsh, and the rules by which compensation and damages are to be awarded to each of them, in a proceeding by the railroad company to condemn their lands.

The court then is of the opinion that the judgment in the case of Wright, and also in the case of Shotwell should be affirmed; and that the judgment in the case of Vought and in that of Walsh should be reversed; and judgment rendered in favor of each enjoining the railroad company from entering-upon the lands of either, until condemned and paid for according to law.

Judgment in each case accordingly.

Burket, J;, dissents as to the 5th paragraph of the syllabus.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Gertrude Hesse, Admx., v. The Columbus, Sandusky and Hocking Railroad Co.

      Personal injury — Recovery jrom railroad, company for — Allegations necessary in petition — Act of April 2, 1890 — Competency of evidence.

    1. In a petition to recover from a railroad company for a personal injury received by a fireman in consequence of defects in the locomotive upon which he is employed, it is necessary to allege that he had no knowlege of such defects ; or that, having such knowledge, he informed his superior, and continued in the service relying upon his promise to remedy the defects. This requirement is not affected by the act of April 2, 1890. (87 O. L., 149.)
    2. On the trial of an action by an administrator to recover when such injuries have proved fatal, it is not competent to call witnesses to testify that the deceased fireman was in the line of promotion when the injuries were received.
    (Decided March 22, 1898.)
    Error to the Circuit Court of Perry county.
    Mrs. Hesse filed her petition in the court of common pleas alleging in substance that she is the qualified administratrix of the estate of Neil Hesse, deceased; that on the 4th of January, 1896, and prior thereto, he was employed as a fireman on the defendant’s locomotive No. 35, that said company in violation of its duty negligently and carelessly provided said Neil Hesse with a defective and unsafe locomotive, which while being so used by him, in consequence of its weak and defective condition, and without fault on his part, exploded whereby he was immediately killed, and that thereby his next of kin suffered damage in the sum of ten thousand dollars for which she prayed judgment.
    The petition did not allege that Neil Hesse was ignorant of the defective condition of the engine.

      Without demurring, the company answered denying that it was negligent in the premises and denying that the locomotive was defective or unsafe.
    The cause was tried to a jury and a verdict was returned in favor of the plaintiff. The defendant’s motion for a new trial was overruled, and a judgment was rendered on the verdict, whereupon the company took a bill of exceptions setting forth the evidence and the charge and its exceptions to portions thereof.
    On petition in error the circuit court reversed the judgment for the reasons following:
    First. Because the petition does not state a cause of action.
    Second. Because of error in the admission of evidence as to the deceased being in the line of promotion.
    The circuit court found no other error in the record.

      Herbert Butler; Donahue, Spencer c& Donahue, for plaintiff in error.

      John Ferguson and II. D. Cochran, for defendant in error.
   Shauck, J.

The general rule is established in this state and elsewhere that in an action by a servant against his employer for an injury resulting from the latter’s negligence in furnishing machinery or appliances, about which the servant is employed, the plaintiff must allege that he was ignorant of the defect from which the injury resulted; or that, having knowledge of such defect, he informed the employer and continued in the service relying upon his promise to remedy the defect. This requirement is not answered by an averment that the injury occurred without fault of the plaintiff. Acquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed may use the utmost care to avert the dangers which they threaten. Coal & Car Co. v. Norman, 49 Ohio St., 598; Coal Co. v. Estievanard, 53 Ohio St., 43.

The servant must be required to communicate to his employer such knowledge as he may have of defects in machinery or appliances about which he is employed, or the law will not be administered according to the reason which is its life. Fully justified by considerations of policy, the courts require of railway companies with respect to their patrons and the public the exercise of that high degree of care which is commensurate with the dangers of their operation. To the end that such care may be exacted from them, they are, with obvious propriety, charged with knowledge of such defects as are or might be discovered by the senses of their officers and employees. It is with like propriety that the communication of such knowledge is required from all with whose knowledge they are chargeable.

But the most confident contention of counsel for the plaintiff is that the act of April 2,1890 (87 Ohio Laws, 149) releases the employee of. a railroad company from this general rule. The act applies to railroad corporations only. Reliance is upon the second section of the act which is as follows:

“Section 2. It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall receive any injury by reason of any defect'in any car or locomotive, or the machinery or attachments thereto belonging, * * * such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state brought by such employee, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima, facie evidence of negligence on the part of such corporation. ’ ’

The act by its terms affects the rules of evidence. It does not affect the duty of the employee, nor the rules of pleading with respect to it. In the cases to which it applies it raises against the corporation a prima facie presumption of negligence from evidence showing that the employee received an injury by reason of a defect in the car or locomotive, or the machinery or attachments thereto belonging. In Coal & Car Co. v. Norman, the general rule governing cases of this character is stated:

“The servant in order to recover for defects in appliances, must establish three propositions: 1. That the appliance was defective. 2. That the master had or should have had notice thereof. 3. That the servant did not know of the defect.”

The force of the statute under consideration is wholly expended in relieving the servant of the duty of establishing the second of these propositions. His duty with respect to the first and third remains wholly unaffected. Although recoveries were sustained in Railway Co. v. Erick,, 51 Ohio St., 146 and Pennsylvania Co. v. McCann, 54 Ohio St., 10, the view taken of the statute was consistent with that which is here expressed.

Nor do we think that the circuit court erred in the second ground of reversal stated in its entry. Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff’s intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate’s habits, health, position and capacity to earn. These and other like circumstances constituted the existing facts from which the jury were to determine the amount of damages which they should assess. The evidence to which the objection was made was introduced to show a supposed probability that his capacity to earn would have become greater in the future. It started an inquiry which could have no other effect than to consume time unduly and to introduce speculative considerations into the assessment of damages. Brown, Adm'r, v. The Chicago, R. I. & Pac. Ry. Co., 64 Iowa, 652.

We observe no other errors for which the judgment of the common pleas court should have been reversed. It does not appear that in either of the courts below it was thought that there could be a recovery without evidence establishing the fact that the explosion was due to defects in the boiler.

Judgment affirmed.