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Ludlow's Heirs v. Kidd's Ex'rs et al.

veyed the lot to his nephew, Celadon *Symmes, without any [245 certificate from the proprietors directing such conveyance. In 1804, Ludlow deceased. Celadon Symmes conveyed the lot to Joel Williams, who was then the owner of Freeman's interest in the town property. And before the expiration of Ludlow's lease, Williams conveyed it to Kidd, who, at the expiration of his lease, retained possession upon his deed. The bill was originally brought against Williams and Kidd, to obtain from them the legal title, and in 1817, was dismissed upon a final hearing.

After this dismissal, Kidd sold part of the property, in fee, and leased a part of it for ninety-nine years, renewable forever, reserving an annual rent. Afterward, Kidd made his will, and directed that his executors expend the rent reserved for the education of poor children. For a time the executors received and so applied the rents, and at length transferred their interest and trust to the Cincinnati College. The Bank of the United States became the owners of the lease, and, in this condition of things, the bill of review was filed. Upon the service of the process on the bill of review the bank ceased to pay the rents. The court, having on the bill of review, reversed the decree of dismissal, the purchasers under Kidd put in the plea that they were innocent purchasers, without notice, and this plea was ruled in their favor. The rents reserved upon Kidd's lease, and the value of the lot, as against Kidd's estate, were all that was left for the complainants to obtain by a final decree in their favor.

This cause now came before the court, upon questions of fact and law, involving the superior equity, as between the heirs of Ludlow, claiming under him, and the representatives of Kidd claiming under Symmes. The court decided the facts to be in favor of the complainants, but considered it of no utility to report the evidence, 80 as to make the grounds of decision intelligible. The following decree was rendered in the cause :

“This day came the parties by their counsel, and the bill, answer, and exhibits being read, and understood, and the arguments of counsel thereon heard, the court are of opinion that the complainants are in equity well entitled, as against the devisees of John Kidd, to the possession and legal title to the lot numbered four hundred and one, in the bill mentioned ; and it having heretofore been adjudged and *decreed in this cause, that the [246 whole of said lot, except the annual rents of one thousand dollars

Ludlow's Heirs v. Kidd's Ex'rs et al.

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per annum, reserved by John Kidd, upon his lease to John Smith
and David Loring, for ninety-nine years, renewable forever, dated
August 18, 1818, of a part of said lot, had passed into the hands
of innocent purchasers for a valuable consideration without notice,
and, therefore, could not be affected by the equity of the complain-
ants, the court can only extend relief to the complainants, as
against the said John Kidd, and as against his devisees of the said
rent reserved.

The court do, therefore, order, adjudge, and decree, that the
Cincinnati College, by a proper deed of conveyance under their
corporate seal, assign and transfer to the complainants all the
right, title, and interest, they may have acquired in and to the
lease from the said John Kidd, deceased, to David Loring and
John Smith, and to the rents thereon reserved; and that the said
Joshua L. Wilson and Oliver M. Spencer, executors and trustees
of the said John Kidd, deceased, by a proper deed, in writing, re-
lease to the complainants all the right, title, and interest that may
remain in them, to the lease aforesaid, and the rents thereon and
thereby reserved, both said conveyances to be made and executed
on or before February 1, 1830, and in failure thereof, thon
that this decree fully invest the said complainants with all
the right, title and interest of the said Cincinnati College, and of
the said Joshua L. Wilson and Oliver M. Sponcer, as executors
and trustees of the said John Kidd, deceased, in and to the said
lease and rents thereon reserved; and, in respect to the annual
rents of one thousand dollars per annum, reserved upon said lease,
which have accrued since the emanation of the process in this case,
upon the bill of review and supplemental bill, to wit: since
April 1, 1825, the court are of opinion that the complainants are
entitled to a decree for the same, and it appearing to the satisfac.
tion of the court that the said rents remain in the hands of the
defendants, the president, director, and company of the Bank
of the United States, the court do award, order, and decree, that
the president, directors and company of the Bank of the United
States account for and pay over to the complainants the whole
amount of one thousand dollars per annum of annual rents, which
have accrued since April 1, 1825, until the pronouncing of this de-
247] creo. And it *further appearing to the court, that, at the
time of filing the original bill in this case, to wit: on March 15,
1821, the said lot was improved and yielding rents, the court are

Ludlow's Heirs v. Kidd's Ex’rs et al.

of opinion that the complainants, as against the estate of the said John Kidd, and his executors, representing that estate, are entitled to an account for, and payment of the rents and profits justly accruing on said lot, deducting therefrom all proper charges for taxes paid, and improvements made. It is therefore decreed, that Samuel F. Hunt be, and he is hereby appointed commissioner to take and state an account of all such rents and profits, from March 15, 1821, to the time of taking such account, crediting upon said account the annual sum of one thousand dollars, from April 1, 1825, already charged by this decree; said account to be taken upon equi. table principles, and report thereof made to the next term of the Supreme Court in Hamilton county. The court are further of opin. ion, that the complainants, as against the estate of John Kidd, are entitled to the present value of the said lot of ground, number four hundred and one, in the bill mentioned, except for the portion thereof which produces the annual rent of one thousand dollars per annum. It is therefore ordered that the said commissioner estimate the present value of the said lot number four hundred and one, deducting therefrom such part as produces the annual rent aforesaid, and report the same to the Supreme Court of Ham. ilton county at their next term. As to the defendants, John Williams, Thomas Williams, Benjamin Williams, Joel Williams, and Eleanor Williams, the bill is dismissed. And the court do further award, order, and decree, that the complainants recover of the executors of John Kidd, deceased, to be levied upon his goods and chattels in their hands to be administered, their costs and charges in the prosecution of this suit expended; and it is ordered that the clerk of the Supreme Court for Franklin county send a certi.

copy of this decree to the clerk of the Supreme Court of Hamilton county, who is directed to enter the same on the journal of the court.

fied

GARRARD, for complainant.

Fox, for defendant,

229

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CASES

DECIDED BY TA.

Supreme Court of Ohio,

BEFORE ALL THE JUDGES,

AS A SPECIAL SESSION HOLDEN AT COLUMBUS, JAN., 1831.

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D. Z. AND D. C. COOPER V. MICAJAH T. WILLIAMS.

Court of equity can not control the canal commissioners, in using the quantity

of water necessary for the navigation of the canal, upon the complaint of individuals claiming an interest in the water, nor in selling it for hydraulic purposes.

This was a suit in chancery to enjoin the defendant, one of the acting canal commissioners, from selling certain water privileges created by the location of the canal at Dayton, and was reserved from the county of Montgomery. The bill alleged that the an. cestor of the complainants was the owner of a large real estate in and adjoining the town of Dayton ; that this real estate was so situated as to give him the entire control of valuable water powers, by taking the water from Mad river, a mile or more above its mouth, and conducting it through his lands by races, and then discharging it into the Great Miami river, either east of and above the town, or south of and below the town of Dayton. That in

Cooper v. Williams.

his lifetime he erected divers large and valuable mills, and in vari. ous modes appropriated and used these water privileges; and to prevent future collisions, he reserved to himself, his heirs, etc., the right of conducting water through most of the out-lots and lands sold by him, lying west of the road leading from Dayton to Waynesville, and south of the town of Dayton. That by his last will and testament he directed his executors to sell certain out-lots and lands for the payment of his debts, but reserving the same privilege of conducting water through them, and that the complainants, his children and residuary legatees, are entitled to said real estate, with all water privileges, etc. That in 1827 the board of canal commissioners located the *canal, a basin and feeder, at [254 Dayton. The canal was located on the east side of Dayton to Main Cross street; the basin from Main Cross street to First street, and the feeder was taken from Mad river, above the lands of the complainants, and upon the lands of James Findlay, and after passing southwardly and mostly through the lands of the complainants, discharged itself into the main canal a short distance below the saw-mill erected by the ancestor of the complainants. The canal, basin, and feeder were completed in 1829, agreeably to this location, and the bill avers that the feeder conveys an ample supply of water to the main canal for the purposes of navigation.

The bill further alleges, that at the time the canal, basin, and feeder were located, the canal commissioners agreed that a cut should be made from the head race of complainants' saw-mill to the basin, at or near its bead, and the water thus turned might be used by the complainants for the purpose of propelling machinery; that this arrangement has been carried into effect on the part of the complainants, and the cut made and privilege leased to one Richards, who is erecting a valuable cotton factory upon the cut.

It is also charged, that an agreement was made with the canal commissioners to raise the complainants' saw-mill wheel, to save the expense of a culvert, which has also been complied with by the complainants.

It is further alleged, that the complainants, without materially injuring their water privileges, can furnish a constant and ample supply of water for the canal, and that the commissioners by their dam across Mad river can always control a sufficient quantity of water by the feeder as located and finished. The complainants

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