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McBroom v. Watkins.

more water should be taken from the Hocking river at said falls than was actually necessary for canal purposes; that the Hocking canal has been wholly abandoned and unused for canal purposes for more than fifteen years, and that the defendants as agents and officers of the state of Ohio are threatening to, and are about to destroy said dam, and if not restrained will illegally and wrongfully destroy same, to plaintiff's great and irreparable injury.

Then follows a prayer for a perpetual injunction against the destruction of the said dam and water power and for all proper relief.

The defendants, William Kirtley and B. W. Baldwin, file separate answers, identical in substance and therefore considered together, admitting their official capacity as members of the board of public works of the state of Ohio, and in their first defense denying all other allegations of the petition; in a second defense they each allege a fee simple ownership in the state of Ohio of the dam or dams attempted to be described in the petition of the plaintiff and all rights and appurtenances attached thereto, and that the dam with the slack water created thereby constitutes approximately four miles of the Hocking canal, which Hocking canal the state owns in fee simple, and that such ownership of the state includes all water rights in and connected with such dam or dams, and that they, as such officers, had not done or attempted to do anything in relation to said dams except in pursuance of the duties enjoined upon them by the laws of Ohio, as members of the board of public works of the state, nor were they threatening or intending to do anything in relation to such dam or dams, except in the performance of their duties as provided by law.

In a third defense these defendants set up, by way of estoppel, that this matter has been adjudicated in a case, No. 1080, in the circuit court of Franklin county, Ohio, wherein Robert Wright, a former owner and predecessor in ownership of the plaintiff in this action, and from whom the plaintiff claims title to the said mill and the water right, was the plaintiff, and the Columbus, Hocking Valley & Athens Railway Company was defendant; that said action was prosecuted on error to the Su

Hocking Common Pleas.

preme Court of the state, in case No. 5623 (Wright v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442]; affirmed,. Walsh v. Railway, 13 O. F. D. 234 [176 U. S. 469]), where the decree and judgment of the circuit court was affirmed, and that in said case the same question, to wit, the plaintiff's right to the water power in connection with said mill, was directly in issue, and that the prayer of the petition was to restrain the destruction of the said water power.

The defendant, James R. Marker, answers, admitting his official capacity as chief engineer of public works of the state of Ohio and denying all other allegations of the petition; and in a second defense set up ownership in fee simple in the state of Ohio in the dam or dams attempted to be described in the petition of the plaintiff and in the slack water created by said dam for about four miles of the Hocking canal, and that the state owns in fee simple the Hocking canal, including all water rights connected with such dam or dams, and alleges that he has never done or attempted to do anything in relation to said dam, except in strict pursuance of the resolution of the board of public works, and that he is not threatening to do nor intending to do anything in relation to such dam or dams except in a lawful manner in conformity with the resolution of said board.

To each of these answers the plaintiff replied, denying all allegations of new matter alleged therein.

This is, therefore, a cause in which the plaintiff, John W. McBroom, seeks a perpetual injunction against the defendants, as agents of the state of Ohio, restraining them from destroying or injuring the dam or dams, or either of them, or from in any other manner destroying or injuring the water power afforded his said mill by said dams, and for all relief to which he may be entitled.

The first question which the court must determine is the relation the plaintiff sustains to the property which he seeks to protect by this action.

By his petition he seeks, not to protect a public, but a private right. In order for him to succeed he must show by a preponderance of the evidence that he has a right in the use

McBroom v. Watkins.

of the water, controlled by the dam or dams in controversy, paramount to the right of the state therein. He must show that he has an easement in the waters that flow past the Falls Mill that is appurtenant to the property described in the petition.

Were this an ordinary case, it would need no citing of authority to determine that the plaintiff is entitled to the relief prayed for. As between private riparian owners it will not be denied that each has an easement in the water of streams running between their lands, conditioned only that they use the same so as not to damage each other or the owners of the estates above and below them. As pertinently asked, in his brief, by one of the learned counsel for the plaintiff, did the state divest Worthington of his water power rights? He answers this question in the negative. But is that answer correct according to the conceded facts and the evidence in this case?

As appears from the evidence, Thomas Worthington built a dam across the Hocking river at what is known as the Hocking Falls Mill and used the water of the Hocking river as power to run the machinery of said mill. This was about the year 1818 and long before the act of February 4, 1825 (23 O. L. 50), under which act the state appropriated to itself a fee simple title in and to all the lands and waters of the state, deemed necessary for the construction, operation and maintenance of the canal system, inaugurated by that act.

By Sec. 8 of that act, it was declared lawful for canal commissioners, provided for in the act, "and each of them by themselves, and by any and every superintendent, agent, and engineer employed by them, to enter upon, and take possession of, and use, all and singular any lands, water, streams and materials necessary for the prosecution of the improvement intended by this act." In doing this it was declared that "no unnecessary damage" should be done and "in case any lands, water, streams or materials taken and appropriated for any purposes" should "not be given or granted to the state," the canal commissioners "on application being made to them, by the owner or owners of any such lands, water, streams or materials" were to appoint, in writing, appraisers whose duty by the act was to equitably estimate and appraise the loss and damage, if

Hocking Common Pleas.

any, to the respective owners or parties interested in the premises.

This act also authorized the canal commissioners to pay the damages so assessed and appraised and declared that the "fee simple of the premises so appropriated shall be vested in this state.'

Acting under and by virtue of this act of February 4, 1825, the board of canal commissioners of Ohio, on February 8, 1844, as shown by the evidence, awarded and ordered paid out of the canal fund to individuals for injuries sustained in the location and construction of the Hocking canal the sum of $11,295. Six thousand dollars of this sum was paid to Thomas Worthington, and $1,700 to the heirs of Thomas Worthington.

It therefore follows that the state of Ohio has the fee simple title, not only to the lands occupied by the Hocking canal, but also a fee simple title in the water which flows through such lands.

It is conceded that the plaintiff, John W. McBroom, holds only such title and appurtenant rights to lands formerly owned by Thomas Worthington and through which the Hocking canal was constructed, as Mr. Worthington possessed. The successors in title from Worthington to and including the plaintiff, John W. McBroom, can claim no title and no right in those premises not vested in or incident to the estate of the original source of title, Thomas Worthington.

It is also conceded that the state did appropriate the water of the Hocking river for several miles above the Falls Mills, as a part of the Hocking canal. It took possession of the Hocking river from where the canal entered same, several miles above said mill, down to and including the dam or dams in controversy herein. It built a new dam, just below, and some two feet higher than the old dam.

As laid down by Judge Bradbury in the case of State v. Railway, 53 Ohio St. 247 [41 N. E. Rep. 205], "no conveyances were required, nor was any legal or formal proceedings necessary" when the state acquired its canal lands. It simply occupied such as the canal commissioners desired. This occupancy by force of the statute, 23 O. L. 56, Sec. 8, vested the legal title

McBroom v. Watkins.

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in the state. No direct averment was necessary; from the fact alone that a tract was occupied by the state for the purposes connected with its canal system, it followed as a matter of law that the state owned it in fee simple."

Ordinarily there is no fee simple interest in the proprietor of land to the water which flows through his land. But not so with the water appropriated by the state for canal purposes under the act of February 4, 1825. By that act, whenever the state tock possession, through its agents or officers, of "any lands, water, streams or materials, necessary for the prosecution of the improvements intended by" that act, the mere act of taking possession vested in the state the fee simple in the water and streams, the same as in the lands through or over which they flowed. This construction is uniform in all the Supreme Court decisions of Ohio wherein the question of title to the canal property has been considered.

It is claimed by counsel for the plaintiff that the state, through its officers and agents at the time of the finding and awarding of damages to Worthington, used such language as binds the state to forever maintain the dam at Worthington's mill.

But the Supreme Court of Ohio, in State v. Public Works (Bd.), 42 Ohio St. 615, in discussing the act of March, 1840 (38 O. L. 87), which act granted the canal commissioners power to lease waters of the canal for hydraulic purposes and collect rental therefor, said:

"It is quite clear they (conditions and reservations in leases) are not broad enough to embrace conditions to be imposed upon the state after the right to use the water has expired, or after the state has abandoned the canal as a public highway. By such resumption or abandonment, which are identical in their results, so far as lessees are concerned, the state is not liable to respond in damages to the lessee. If it were otherwise, the state would be compelled to maintain her canals at any sacrifice for the exclusive benefit of the lessees of surplus water, or become the purchaser of the property of the lessee, thus making the incidental purpose paramount to the public use." Citing Hubbard v. Toledo, 21 Ohio St. 379, where, on

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