6 Ohio Law. Abs. 294 | Ohio Ct. App. | 1928
‘‘We are unable to accept the plaintiff’s contention or adopt her interpretation of the l«w which controls the situation presented here by the undisputed facts. Upon the other hand, under the authority of Indiana v. Kentucky, 136 U. S. 479. we are constrained to hold that the dominion of West Virginia must continue as it was fixed by the condition of the river at the time of the grant of the Northwest Territory, and that any change which may have occurred in the flow of the river since that time by reason of the action of natural forces can not and does not affect such dominion. Moreover, it is conclusively shown here that the island known as Gallipolis Island has always been in the possession of the authority controlling the river to the low water line on the northwest shore thereof, and such possession is conclusive of the fact that said island is a part of such territory. We are therefore convinced that plaintiff’s premises may only extend to the low water mark on the northwest side of said river, and that said mark must be located somewhere in the channel between the Ohio shore and the island in question, and that there was no error in the instruction of the court of which the plaintiff now complains.
The plaintiff further complains of the refusal of the trial court to give óertain instructions which the record shows she requested to be given to the jury before argument. The record does not disclose whether her request in this respect was to give the instructions in question as a whole or separately. Some of the instructions so requested stated correct abstract propositions of the law. But, taken as a whole, the instructions were improper in form and many of them in substance also. We cannot predicate error on the refusal of the court to give the instructions which were proper for the reason, as before observed, that there is nothing in the record to show that such instructions were requested to be given separately, and for the further reason that they pertain only, as before observed, to mere abstract principles of law.
On the whole evidence in the case, in our judgment, there was a complete failure of the plaintiff to show any right of action against the defendant company and the trial court might well have directed a verdict in favor of the latter at the close of the plaintiff’s evidence. This fact alone precludes the court from assigning any errors that may have resulted in any substantial prejudice to the plaintiff.”
