State Ex Rel. Crabbe v. Middletown Hydraulic Co.

151 N.E. 653 | Ohio | 1926

Lead Opinion

This is an original action in quo warranto in this court, filed by the state of Ohio, on relation of the Attorney General.

The defendant is a corporation organized under the laws of the state of Ohio.

The petition alleges the state ownership of the Middletown feeder as a part of the Miami and Erie Canal; further alleges that the defendant owns and operates a manufacturing plant located in the vicinity of the feeder, and that the defendant now is, and for a long time has been, diverting water from the feeder to its manufacturing plant for manufacturing purposes, without authority of law and without the consent of the state; and prays that the defendant be required to answer on what authority it claims to have used and enjoyed the rights, privileges, and franchises set out in the petition.

The first defense in general language pleads the reservation of his water rights by Abner Enoch from his grant to the state of the land upon which the Middletown feeder is constructed, the succession of defendant to the water rights of Abner Enoch, and denies a diversion by it of any other water from the Middletown feeder.

This defense cannot be construed into a general denial, since the state, by its action in quo warranto, requires the defendant to show by what right it takes any water from such feeder. The demurrer of the state to this answer raises the question of the validity of the reservation.

The second defense in detail avers the ownership by Abner Enoch of the lands upon which the Middletown feeder was afterwards located and the water rights which he had acquired at that point prior to any possession by the state as a proprietor, the conveyance by Abner Enoch to the state of the lands upon which he had theretofore erected a millrace, the reservation from that grant of his water rights, and the acceptance of that grant by the state, with the reservation. The second defense further avers that the waters available from the river at that point were far greater than necessary for the operation of the canal, and were and have been ever since sufficient for the purposes of the canal and for the purposes for which Abner Enoch theretofore acquired the water rights; that afterwards the state entered into a contract with Abner Enoch to construct a new dam, feeder, and headgates upon or near the site where Abner Enoch had theretofore maintained a dam, in which contract it was provided that the dam, feeder, and headgates should be constructed of such capacity as would provide water both for the canal and for the use of Abner Enoch; that in pursuance of that contract the state did construct a dam, feeder, and headgates of sufficient capacity to furnish all the water needed for canal purposes and all the water required by Abner Enoch, and placed a weir or gauge in the feeder for the purpose of continuing unto Abner Enoch, his heirs and assigns, his water rights as before the construction of the Miami and Erie Canal, that the state under its contract obligated itself to furnish water to Abner Enoch, his heirs and assigns, to maintain a feeder and headgates to their full capacity, so as to discharge the quantity of water for the use of Abner Enoch, his heirs and assigns, except such as was necessary for the Miami and Erie Canal for navigation purposes. The second defense again avers the succession in title of defendant from Abner Enoch, the continuous use by it and its predecessors for 100 years, and the use by this defendant since 1857, all with the knowledge and consent of the state; avers the partial destruction by the 1913 flood of a former feeder and dam, and reconstruction thereof with a diversion dam for the use of the defendant by the state of Ohio, in pursuance to its contract of 1826 with Abner Enoch, and continuous observance of and compliance with that contract by the state during all that period; and avers its ownership of the lands adjacent to the state dam, and that it is entitled to all the riparian rights as such owner, subject only to its grant to the state for navigation purposes.

This defense is a more detailed statement of the first defense, plus the defendant's rights under the contract made subsequent to the grant, and plus an averment of ownership of the lands adjacent to the Miami river and the state dam, and the demurrer of the state to this defense raises the same question as the demurrer to the first defense and the additional question whether the state, by its contract, entered into subsequent to the grant, legally obligated itself to permit the defendant to divert the water.

The third defense avers that the state of Ohio, under the act authorizing it to construct and operate the Miami and Erie Canal, was only authorized to and only did appropriate such waters from the Miami river through the Middletown feeder as were necessary for the purpose of navigation in and along the canal from what is known as the state dam to the city of Cincinnati, taking into consideration all waters that were delivered to such canal from various other sources north of such dam; that the state of Ohio has now abandoned the Miami and Erie Canal from the state dam northwardly, and no water is furnished for such canal north of the state dam, either for navigation or any other purpose, and that the state of Ohio is now diverting from the Miami river above the state dam larger quantities of water than it is entitled to have under the terms of the act permitting the appropriation of water for canal purposes and under its agreement with Abner Enoch; that the state of Ohio has abandoned for navigation purposes the Miami and Erie Canal from the state dam southwardly to the city of Cincinnati, and has permitted bridges, viaducts, and other constructions to be built across the canal that make it impossible to use the canal for navigation purposes; that since 1913 no portion of the canal has been used for navigation, and it is not the intention of the state of Ohio to again use the canal for that purpose; that the purpose of the construction of the canal has entirely ceased; that the state of Ohio, under the act providing for the construction of the canal, and under its contract with Abner Enoch, is not entitled to take any water from the river for the purpose of providing hydraulic power to manufacturers and others; that the act of the state of Ohio, permitting it to lease water for power purposes, authorized only such as were incident to the use of the canal for navigation, and that the state of Ohio is without power, under any act of the Legislature, to own, operate, or maintain a canal solely for the purpose of leasing water to others for power purposes.

The fourth defense is a plea of estoppel against the state by reason of its pleadings and the decree in the case ofEnoch v. State of Ohio, in the Butler county common pleas and in the Ohio Supreme Court; and the fifth defense is estoppel of the state by its standing by and permitting and encouraging the expenditure of money by the defendant and its predecessors in title for 100 years, on the strength of a title which the state for all that period recognized.

Since the defenses 1 and 2 are in the main the same, we will consider them and the demurrer to them as raising the question of the validity of the reservation, from limitation of or exception to the grant of Abner Enoch to the state, and the right of the defendant, as a successor to Abner Enoch, to divert water from the Middletown feeder.

By stipulation, the state of Ohio and the defendant agree that the deed from Abner Enoch to the state of Ohio, under date of July 28, 1825, the report of Samuel Forrer under date of 1866, the certified copy of the record in the case of AbnerEnoch v. State of Ohio, the copy of the Goudy-Johnson lease, February 21, 1925, together with a suitable plat of the premises, may be considered by the court upon the demurrer, the same as though each were fully set out in the amended answer.

The deed from Abner Enoch to the state of Ohio recites:

"In consideration of the benefits which will be conferred upon all who own real property in the vicinity of the said canal, and upon myself in particular, and also in consideration of the sum of one dollar to me in hand paid by the said commissioners in behalf of the said state, I hereby for myself and my heirs, give, grant, cede, and forever transfer to the state of Ohio, all the lands belonging to me which shall be necessarily occupied by the site of the said canal, and also by the site of the towing paths, feeders, aqueducts, reservoirs, spoil banks, and culverts connected therewith. (All water privileges reserved to myself as to mill seats, etc.)"

The report of Samuel Forrer, "resident engineer," under date of 1866, addressed, "To the Honorable Board of Public Works," pertains to an application of one Thomas Miller for a lease of water power on the feeder of the canal near the state dam next above Middletown, and, after reciting certain physical objections to the lease to Miller of the water power from this feeder, it proceeds:

"In addition to these objections, the old right of Abner Enoch to the use of water from the Miami river, by way of the state feeder, cannot be set aside by the board of public works, by any authority it can now assume to possess. Whatever may be the extent of the Abner Enoch right, it is deemed clearly advisable that the board should, for the present, decline the application of Mr. Miller."

The report continues: "In regard to the application of the Middletown Hydraulic Company, for a recognition of certain alleged rights, etc.:

"The undersigned understands this application to refer to their rights, generally, to pass all the water available for the purposes of the company, which can be taken from the Miami river, through the feeder and headgates used in furnishing water to the Miami Canal, and particularly all that Abner Enoch was entitled to pass to his mills, near Middletown. This matter seems to be one involving the prospect of a legal controversy between the Hydraulic Company and R.H. Hendrickson, Esq., and hence the application invoking some kind of action by the board of public works, and also the protest before alluded to. Without stopping to inquire what are at present the rights of the company, I will state what I know in regard to Abner Enoch's claim for the right to use the state feeder as a channel for the passage of water to his mills. And, first, I may state that I made the preliminary survey and final location of the then called 'Miami Canal,' and superintended its construction from beginning to the end, excepting a short time in the year 1827. I also had charge of the canal, as resident engineer and acting commissioner, for many years after it was completed, during which time I had frequent interviews with Mr. Enoch, on canal matters involving very often conflicts of state and individual interests. There was, however, never any controversy between us as to the right of Mr. Enoch to the use of the state feeder to pass all the water he had a right to take from the Miami river. I know personally that my predecessor in the board of canal commissioners recognized the right of Enoch to the use of the state feeder. I never heard that any one occupying a place in the board of canal commissioners or board of public works ever expressed any doubts of such right. Of my own knowledge, I can state:

"First, that when, in 1824, I located the dam, I found Mr. Enoch in possession of a dam near the site selected for the state dam, and a millrace which had the appearance, from its sinuosities and inequalities of width at different places, to have been in part once a bayou. I also located the feeder, and made it occupy Mr. Enoch's millrace to a point within a few rods of the discharge of the feeder into the canal, excepting at places where the millrace was too crooked to justify its occupancy with the new work.

"Second. From personal knowledge, I know that the contract for building the state dam and feeder, dated June 2, 1826, was given to Abner Enoch, at prices fixed by the chief engineer, instead of subjecting him to competition with many bidders, anxious for state contracts. I know, too, that Mr. Enoch was thus favored because he owned mills which were supplied with water from the Miami river at the same point and over the same ground selected by the state for canal use, and in the belief that he could carry on his work in such manner and time as to do less injury to his manufacturing operations than others might do. A clause was also inserted in the contract, bearing on this question, as follows, to wit: 'It is also further understood and agreed that the party of the first part hereby relinquishes all claims for damages or compensation on account of the necessary stoppage of his mills, etc., by the construction of the aforesaid dam and feeder and work connected therewith.'

"Third. The feeder and headgates were constructed of greater capacity to pass water than was necessary for merely canal use, and a weir or gauge placed in the feeder for the purpose of continuing to Mr. Enoch the use of the water as before the construction of the canal, so that, whatever may be the rights of Mr. Hendrickson or others as against the Middletown Hydraulic Company, there cannot, as it appears to me, be any doubt as to the obligation on the part of the state to Mr. Enoch and his successors to maintain the feeder and headgates in their full capacity to discharge the quantity of water due for the use of the Enoch mills until restrained by competent authority.

"It may not be out of place here to give an extract from the answer of the state to a bill in chancery, filed in the Butler county court of common pleas, April 17, 1839 — Abner Enoch v.State of Ohio. The complaint of Enoch was, among other things, that he was damaged in being deprived of the use of water to his mills at different times, for which he claimed compensation.

"The answer of the attorney on behalf of the state, who was an old resident of Butler county, was as follows: 'Respondent, in further answering, says that instead of the complainant being allowed damages for drawing off the water from his mills in consequence of his own failure to erect a dam according to contract, this respondent is in equity and good conscience entitled to a decree for $10,000 for erecting and keeping in repair a permanent dam for his mills, whereby his said mills are more than doubled in value.' This only shows what was the general understanding as to Enoch's rights.

"I may add, too, from personal knowledge, that Mr. Enoch frequently complained that he was not furnished with all the water necessary to operate his mills when the water was extremely low. I know, too, that the agents of the state in charge of the canal made all reasonable efforts by tightening the dam and economizing the use of the water in the canal to supply the mills."

Whatever may have been the capacity in which the state functioned in the construction of the Miami and Erie Canal for the purpose of a navigable highway across the state for the use of the general public, its function now, since the abandonment of the canal as a navigable highway, is that of a commercial proprietor, engaged in the operation of a great power plant for the sale of power and water to private individuals, and the rights of the state, as such proprietor, in this particular property, which have not heretofore been judicially determined, but are to be determined now for the first time, should be and will be measured by rules that are applicable to proprietors generally and applicable to like transactions between private individuals.

"In conducting transactions with respect to its lands, the state acts in a proprietary, and not in a sovereign capacity, and, being amenable to all the rules of justice which it prescribes for the conduct of its citizens, it will not be permitted to revoke a grant of lands made upon a valuable consideration which it retains." Cleveland Terminal ValleyRd. Co. v. State ex rel., 85 Ohio St. 251, 97 N.E. 967, 39 L.R.A., (N.S.), 1219.

"When the state appears in her courts as a suitor, to enforce her rights of property, she comes shorn of her attributes of sovereignty, as a body politic, capable of contracting, suing, and holding property, subject to those rules of justice and right, which in her sovereign character she has prescribed for the government of her people."State v. Executor of Buttles, 3 Ohio St. 309.

It is the contention of the state that, since the state by the Canal Act was only authorized to appropriate a fee to lands for canal purposes, and purposes incident thereto, it was without power to acquire in any other way for canal purposes an interest in land less than a fee simple, and therefore that, when it acquired any interest in land, the thing acquired must necessarily have been a fee simple.

This court, in the cases of Ohio ex rel. v. P., C., C. St.L. Ry. Co., 53 Ohio St. 189, 41 N.E. 205; State v. Snook,53 Ohio St. 521, 42 N.E. 544, and Malone v. City of Toledo,34 Ohio St. 541, has gone far towards sustaining that position of the state.

In the first of these cases the court declared:

"By force of the provision of Section 8 of the act to provide for 'the internal improvement of the state of Ohio by navigable canals' (23 Or. L., 57), whenever the state actually occupied a parcel of land for canal purposes, a fee-simple title thereto at once and by virtue, alone, of such occupancy, vested in the state."

It will be observed, however, that the language there employed is that, "whenever the state actuallyoccupied a parcel of land for canal purposes."

That case is not controlling in the instant case, for the reason that under the averments of the answer and the facts, as disclosed by the exhibits, which, by stipulation are made a part of the answer, the occupancy of the state was never exclusive, but was an occupancy, whether under the grant or otherwise, that at all times recognized the right of Abner Enoch and his successors to a joint use of the water which passed through that particular feeder, and therefore a joint use of the feeder and the land upon which the feeder is located.

We think it may be conceded, notwithstanding the reservation from the grant, that, if the occupancy of the state of this particular feeder and the land upon which it is located had been exclusive and in denial of the claimed rights of Abner Enoch, the occupancy by the state of this feeder would have amounted to an appropriation of Abner Enoch's lands and water rights and relegated him, as to remedy, to a recovery of the value of his property and water rights, but the state of Ohio, during all this period, not only abstained from such occupancy as would appropriate the lands and water rights of Abner Enoch, but by its departmental construction affirmatively recognized his joint occupancy, so that the time, to this day, has not come when Abner Enoch, or his successors, could have the value of these property rights ascertained and compensation therefor awarded.

The second of these cases (State v. Snook, supra), wherein the court held: "(1) Lands of which the state in any manner acquired possession under the Acts of February 4, 1825 (2 Chase, 1472), and February 7, 1826 (24 Or. L., 58), and used in the construction of its canals, became the property of the state in fee" — asserts in perhaps broader language the same proposition that is asserted in the first of the cases; yet the effect is not different, for, notwithstanding the use of the words, "lands of which the state in any manner acquired possession" the title is made to depend upon possession, and "possession," as used in that case, as did "occupied" and "occupancy," as used in the preceding case, contemplates such possession or occupancy as would exclude all others. Such possession or occupancy under the Canal Act constituted an appropriation. For that reason that case is not decisive of the question involved in this case.

The other case cited (Malone v. City of Toledo, 34 Ohio St. 541) relates to lands acquired by appropriation, and the question there is as to the right of the owner of the land prior to its appropriation, or his successors, to repossess the land upon the abandonment by the state of the purpose for which it was appropriated, and would only be applicable to this case under the averments of the third defense and then only in case we should find that the state took by appropriation and acquired exclusive possession.

The Canal Act (23 Ohio Laws, 50, 56) empowered the canal commissioners "to enter upon, and take possession of, and use all and singular any lands, waters, streams, and materials, necessary for the prosecution of the improvements intended by this act: * * * that in case any lands, waters, streams or materials, taken and appropriated for any of the purposes aforesaid shall not be given or granted to this state," upon application the value of the thing appropriated shall be ascertained, "and the canal commissioners shall pay the damages so as to be assessed and appraised, and the fee simple of the premises so appropriated shall be vested in this state."

The act authorizes the canal commissioners summarily to enter upon, take possession of, and use, any lands necessary for the prosecution of the improvement; then provides that, if the owners thereof do not give or grant it to the state, the state shall pay for it, and, when it pays for it, shall have a title thereto in fee simple.

There is no provision in the act expressly prohibiting the canal commissioners from taking less than a fee simple by gift or grant, and, if a prohibition is so implied, it must be in the language above quoted. Can it be said that it is there clearly implied?

The prior decisions of this court, while expressed in broad language, were not based upon facts similar to the facts presented in this case, and the question of the title of the state to the lands there in controversy was not based upon a limited grant or a partial possession and it must be remembered that those decisions were not pronounced until long after the rights of the parties to this action had come into existence by their own particular circumstances, and this court has not yet passed upon the right of the canal commissioners by grant to take less than a fee simple. In that situation the departmental construction of its power in that respect, under the Canal Act, acquiesced in and acted upon by all parties interested for so long a period, is at this time a very potent factor in the interpretation of the extent of the power conferred by that act upon the canal commissioners.

"It is a 'settled rule that the practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration is entitled to the highest respect, and, if acted upon for a number of years, will not be disturbed except for very cogent reasons.' " Swendig v.Washington Water Power Co., 265 U.S. 322, 44 S. Ct., 496,68 L.Ed., 1036.

This court, in the case of Miller v. Wisenberger, 61 Ohio St. 561, 56 N.E. 454, declared:

"Section 8 of the Canal Act of 1825 should be so construed as to fairly carry out the intention and understanding of the officers of the state on the one hand, and the landowner on the other, in each case, as near as the same can be ascertained from what was done, and the situation and surroundings of the premises in question."

Accepting that declaration as the policy of this court in determining the rights of parties growing out of the construction of the canals of the state, and it appearing from the averments of the answer and the exhibits herein that the canal commissioners, believing that Section 8 of the "Act to provide for the internal improvement of the state of Ohio, by navigable canals" empowered them to acquire lands by grant with limitations of title which would in no way interfere with the attainment of the purposes for which the act was passed, accepted in 1825 a grant of lands from Abner Enoch, then in possession and use of prior acquired water rights thereon, which grant contained a reservation to him of water for his mill seats, etc. and, believing that the act empowered them so to do, constructed the Middletown feeder with a weir or gauge therein for the purpose of diverting from the feeder water, the right to the use of which Abner Enoch had theretofore acquired, and which right he attempted to reserve from the grant, and believing also that the reservation was effective to reserve such water rights to Abner Enoch, and his successors, recognized such reservation as valid to preserve to him such preacquired rights through a period of 100 years, and, in pursuance thereof, during all that period diverted such water from the feeder to Abner Enoch, and his successors, we, in view of the fact that the state of Ohio through various other of its departments has at all times recognized the validity and effectiveness of such reservation to preserve such water rights, and in view of the fact that it is questioned now by the state for the first time, in an attempt to carry out the intention and understanding of the officers of the state on the one hand and Abner Enoch and his successors, on the other, adopt the construction of the act that was placed upon it by the department of the government authorized and empowered by the act itself to effectuate its purpose, and adopt the construction of the scope and extent of the reservation placed upon it by the parties thereto, viz., that the canal commissioners had the power to, and did, accept by grant such title as the state now has to the property upon which the Middletown feeder is located, that Abner Enoch in the grant undertook to reserve to himself, his heirs and assigns, all his prior acquired water rights, and that the state so construed that reservation. We therefore so construe it, and further entertain the view that the state's rights in that feeder and to the water taken through that feeder are the same, whether it holds under the limited grant, as contended by the defendant, or under and by virtue of the possession originally taken and continuously held, as claimed by the plaintiff, since, if it takes by grant, it must rely upon the terms of the grant, which, according to contemporaneous construction, did not grant the water privileges of Abner Enoch theretofore acquired for his mill seats, etc., and, if it takes by possession, the extent of its title must be measured by the extent of its possession.

We understand the rule to be that a designation in a grant of the purpose for which water is to be used, or a reservation from the grant of water rights for a designated purpose, in the absence of words indicating an intention to prohibit the use of the water for any other purpose, does not restrict the grantee in the grant, or the grantor making the reservation, to the use designated, but only restricts him to the quantity of water the use designated would require; that such a designation is not a limitation of the character of the use, but is a limitation of the quantity of the use. Farnham on Water and Water Rights, Vol. 3, Section 762; Hines v. Robinson, 57 Me. 324, 99 Am.Dec., 772; Johnston v. Hyde, 33 N.J. Eq. 632; Hurd v. Curtis, 48 Mass., (7 Metc.), 94; 40 Cyc., p. 751.

The rule is stated in 40 Cyc., p. 746:

"Rights or easements in the use of water may be excepted or reserved from the operation of a conveyance of land, with substantially the same result as in the case of an original grant, provided appropriate words are used, and the reservation may be available to the successors or assigns of the grantor, even without words of inheritance."

The state, however, is now asking this court to construe the language, "all water privileges reserved to myself as to mill seats, etc.," strictly against Abner Enoch, upon the theory that by the grant the state acquired a title in fee simple to the land, which necessarily carried with it all the water rights, and that the reservation was effective, not to carve out of that grant the water rights of Abner Enoch, but only to create in Abner Enoch a new right as a concession or consideration for the grant; in other words, the present position of the state is that, by the grant, Abner Enoch divested himself of his preacquired water rights, and that the water rights he thereafter had, if any, have their source in the reservation which the state now undertakes to interpret as an obligation creating a new right assumed by it by its acceptance of the grant, and that being a new obligation, created by the words in the grant and the acceptance by the state, the scope and extent of the right will be measured by the strict words creating it, and that, the words creating it containing no words of perpetuity, the right terminated upon Abner Enoch's death.

Whatever construction we might give to the words, were we interpreting similar words approximately contemporaneous with their employment, we know of no principle of justice, equity, or common honesty, which would justify us in giving to this ambiguous language, at this late date, an interpretation different from the interpretation which the state and Abner Enoch gave to it at the time the words were first employed, and which all parties thereto have continued to give to it for 100 years. Indeed, the words of reservation or exception are such that, had the parties thereto as a contemporaneous construction treated the grant as a grant of the then existing water rights of Abner Enoch, and the creation of a new right to him for life, we would as readily adopt that interpretation, but the state, the defendant, and its predecessors in title, having placed upon the grant and its words of reservation or exception the interpretation that the prior acquired water rights of Abner Enoch were thereby preserved to him, his heirs and assigns, this court now adopts that interpretation and holds that the reservation was a reservation from the grant of those water rights, and amounted to an exception in the grant.

The averments of the second defense with reference to a contract entered into subsequent to the execution of the deed by Abner Enoch to the state are not sufficient to state a defense, and, were this contract averred as a separate defense, a demurrer to that defense as pleaded in the amended answer would be sustained.

The third defense, that the state, having abandoned the purpose for which it acquired its Miami and Erie Canal water rights, is now without authority of law exercising those water rights for a wholly different purpose, is met by the two principles heretofore discussed.

(1) That in its proprietary capacity, its property rights are the same as those of private proprietors.

(2) That the specific purpose for which it acquired water rights does not limit it to the use of those rights for that purpose, unless it is expressly prohibited from using them for any other purpose, but the specific purpose for which they were acquired operates as a limitation of quantity and not of character of use.

The demurrer to the third defense is sustained.

In view of our conclusion that the first and second defenses each state a defense, the averment of the fourth defense is inconsequential, and the demurrer thereto is sustained.

With regard to the fifth defense, it may be said that the rights of the defendant having been predicated upon the water rights acquired by Abner Enoch prior to his grant to the state, and those rights having been preserved to him by the limitation expressed in the grant, and the contemporaneous interpretation thereof, acquiesced in by the parties interested up to the date of the filing of this action, and this court now having preserved to the defendant those rights by its adoption of the contemporaneous construction of the parties, and the defendant having averred in its answer filed herein that it is exercising the water rights acquired by Abner Enoch, taking the water he was entitled to take, and no other, the rights of the parties hereto will be measured by the rights Abner Enoch acquired and reserved from the grant to the state.

The doctrine of estoppel, therefore, as applicable to this case, can neither add to nor detract from those rights.

The demurrer to the fifth defense is sustained.

The answer contains the averment that the defendant "now is in the enjoyment and use of the said reserved water and none other, and denies that it has taken or used any water other than so reserved, or that it now does so."

In the present state of the pleadings, unless the state desires to go to trial upon that issue, judgment will be rendered for the defendant.

Demurrer to answer overruled in part and sustained in part.

MARSHALL, C.J., MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.

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Dissenting Opinion

In the case of Hubbard v. City of Toledo, 21 Ohio St. 379, West, J., in the opening sentence of his opinion, said, at page 393:

"In view of the magnitude of the private interests which this opinion may affect, not only in its immediate consequences, but in the future history and disposition of the public canals, we have given to the questions arising upon this record * * * the most careful consideration."

I feel constrained, for a similar reason, to write this dissent. During the time when I sat on the Fourth circuit, many litigated questions, in many respects similar to those here presented, arose between the interests of private individuals and the state, affecting the title to the latter's canals. In that circuit a part of the system of state canals ran through the rural and urban communities of six of its counties.

If the principles announced in the syllabus are held to be the law applying to the title of the state to its canal system, I fear that in the future they may prove to be a serious menace to the interests of the state. We cannot blink the ultimate fact that, by its defenses here presented, the respondent is endeavoring to utilize state property, including dams, feeders, and other appurtenances owned and maintained by the state, for private profit, and for purposes not contemplated 100 years ago, when the state grant was obtained.

In many cases decided by this court it has been held that the title acquired by the state to all lands and appurtenances necessary for canal improvement, whether acquired by deed, appropriation, or simple occupancy, was an unrestricted fee-simple title. Ohio ex rel. v. P., C., C. St. L. Ry. Co.,53 Ohio St. 189, 41 N.E. 205, and State v. Snook, 53 Ohio St. 521, 42 N.E. 544. As stated by the court in the first case mentioned, at page 243 (41 N.E. 216):

"The only fact to be ascertained is whether the lands were in fact a portion of the canal system. How the acquisition was made is not material. The mere seizure and appropriation of a parcel of land for canal purposes, by force of the statute under which our canals were constructed, was alone sufficient to vest in the state a fee-simple title to them. Nor could any other title than one in fee simple be received by the state for lands to be devoted to a canal."

The opinion then states that mere occupation of lands by the state for canal purposes was a seizure and an appropriation of it to that purpose. Here the possession and use by the state of the feeder was not constructive, but actual. The state, at all times, has been in possession and has continually maintained it.

In the second case, Shauck, J., in his opinion reiterates the above principle, citing authorities in its support.

The title in fee simple having been thus vested in the state, it continued to remain in the state, until divested by appropriate legislation. Governmental agencies had no power to acquire any other than a fee; that fee could not be incumbered by any contract or agreement, except by an act of the General Assembly. Hubbard v. City of Toledo, supra; Fox v. City ofCincinnati, 33 Ohio St. 492; State ex rel. Atty Gen. v.Cincinnati Central Ry. Co., 37 Ohio St. 157.

In the last case cited, this court, construing the power of the board of public works, under then existing statutes, said, on page 174:

"The board of public works possesses no power to grant rights, easements, or privileges for private advantage, unless expressly authorized by law."

Citing various statutes authorizing the abandoment and sale of certain sections of canals for various purposes, the court in the course of its opinion said that their adoption evidenced the opinion of the Legislature that the board had no implied power to grant easements or burdens upon public property in favor of individuals or corporations, unless "express authority was conferred by statute."

When the state of Ohio acquired from Abner Enoch, on July 28, 1825, a fee-simple title to the property in the state, it is evident that, under the authorities cited, unless there was an express provision therefor by state legislation, the canal commissioners had no authority to place any easements or burdens upon said property, especially where such easement or burden could be construed as having been given in perpetuity and for private profit. The deed from Enoch to the state, as shown on its face, was made under the Act of January 27, 1823, authorizing the commissioners to make application on behalf of the state, not only for grants for the construction of the contemplated canal, but for land for the purpose of aiding in its construction. No authority of law has been pointed out whereby the canal commissioners were authorized to obtain anything less than a fee-simple title; none has been shown authorizing them to place a burden upon its canal property or its easements thereto belonging. The form of the deed to the state was a printed form; the state officer covenanted to an obligation on the part of the state, if it be an obligation, which was wholly unauthorized. The deed by which the state acquired its property recites that it was given for a consideration of $1 and for "benefits which will be conferred upon all who own real property in the vicinity of the said canal, and upon myself in particular." The deed recites that for that consideration Enoch "for myself and my heirs, give, grant, cede, and forever transfer to the state of Ohio, all the lands belonging to me which shall be necessarily occupied by the site of the said canal, and also by the site of the towing paths, feeders, aqueducts, reservoirs, spoil banks, and culverts connected therewith. (All water privileges reserved to myself as to mill seats, etc.)"

So that the state secured a fee-simple title, not only by the terms of the grant from Enoch, but by its actual occupation of the feeder and of the water flowing through the feeder from the river to the canal. When the feeder under consideration was appropriated by the state, Abner Enoch, the original proprietor and owner thereof, was entitled to compensation. Had an appropriation proceeding been instituted for its acquirement, that compensation would cover merely the damages ensuing to the owner under the conditions then existing. Damages for future contingent value of his claimed right under entirely different conditions prevailing 100 years later would not have been within the limits of his compensation.

Under the authorities heretofore and hereafter cited, I am unable to bring myself in accord with the connotation in the syllabus that the canal commissioners could accept a grant of land for canal purposes upon which any burden by way of upkeep and maintenance in favor of the grantor could be imposed. If this be the character of Enoch's grant, then, quoting from the opinion of Chief Justice Johnson in State, ex rel. Fanger, v.Board of Public Works, 42 Ohio St. 607, 615:

"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."

Under the deed obtained from Enoch, under which the canal system at this point was constructed, whatever right the grantor obtained thereunder was merely one by way of sufferance, or permission of the state. And this was subject to revocation whenever the state saw fit to utilize its dams, its feeders, or its waters, for the purpose of navigation, or, upon abandonment of navigation, for any other purpose which the General Assembly might designate.

The General Assembly has passed many acts authorizing the utilization of its canal system for other than canal purposes. Its powers in that respect have uniformly been upheld by this court in many decided cases. The limitation of power in the agencies of the state is fully discussed in the following cases: Hubbard v. City of Toledo, 21 Ohio St. 379; State exrel. Atty. Gen. v. Cincinnati Central Ry. Co., 37 Ohio St. 157,174; State ex rel. Fanger v. Board of Public Works,42 Ohio St. 607, supra.

Of the four cases reported in 58 Ohio St. 123,50 N.E. 442, one was Wright v. Columbus, Hocking Valley Athens R.Co., which we think applies peculiarly to the instant case, and especially so when considered in connection with its sequel, later reported in McBroom v. Watkins, 11 Ohio N.P., (N.S.), 337. Both of these case related to the same dam and to the same gristmill.

Wright v. R. Co., supra, was an action wherein plaintiff, as successor in title to one Thomas Worthington, had acquired a certain "gristmill located on the Hocking river, which was supplied with water from the river by a dam constructed on it." The consideration to Worthington for granting the right to construct the canal through his lands and to appropriate water to canal uses was that the grantee agreed to enlarge and forever maintain the dam so as to supply an ample supply of water, both for the canal and the mill. An inspection of the original files in this court discloses that the case was heard upon a demurrer to Wright's petition; and an inspection of the brief of counsel for Wright discloses that, among other contentions, they relied upon the principle of estoppel. It must be noted, however, that this was purely litigation between private interests, and not between an individual and the state. Various questions arising in the case, among which was the question whether the contractual obligation of Worthington was personal or a covenant running with the land, were not necessary to be determined, for the reason that the statute granting the railroad company the right of occupancy provided that the company should not deprive abutting property owners along the canal of any vested rights, and that their remedy was at law.

Later, however, when the state board of public works, after the abandonment of that part of the Hocking Canal, threatened to destroy the dam, McBroom, who was a successor in title to the gristmill, brought his action to enjoin the destruction of the dam and the water power which it furnished to his gristmill. In his petition, McBroom had alleged that, in consideration of the grant of "the right to construct said canal through said lands and appropriate the waters of the Hocking river for the purpose of supplying the canal, the state of Ohio agreed to maintain the dam across the Hocking river above said gristmill, so as to afford an ample supply of water for both said canal and said gristmill." McBroom also alleged in his petition that water power had been supplied for the gristmill under said contract for a period of more than one-half century. In short, the claim of McBroom, as a successor in title to Worthington, was that the grant had been made to the grantee in reliance upon the latter's covenant requiring it to furnish an ample supply of water to the gristmill. The trial court, as will appear from the opinion in the reported case, refused the injunction. This, of course, permitted the state to destroy the dam. The case was appealed to the Circuit Court of Hocking county, of which I was then a member. It was heard upon the same testimony adduced in the trial court. The Circuit Court rendered the same judgment as did the trial court, and refused the injunction. McBroom filed his petition in error in the Supreme Court. That court, after full hearing of a motion for an injunction to restrain the board of public works from destroying the dam (upon which motion briefs were filed), refused to issue the injunction. Thereafter the case was dismissed in the Supreme Court. The history of that case is authority for the proposition that, notwithstanding the agreement made by the grantee with Worthington, by which the latter's gristmill was to be supplied with water, in a suit against the state to restrain the latter from the destruction of the dam, the state prevailed and relief was denied the plaintiff.

However, another important question, one fraught with serious consequences, is presented in this case. It is held in the syllabus that the state of Ohio is bound by the interpretation of its canal commissioners as to the extent of the powers conferred upon them by the canal statutes; that it is further bound by their interpretation of the reservation in the deed referred to, wherein the commissioners held this reservation to be an exception only; and, lastly, that, the canal commissioners having so interpreted that act and the reservation referred to, having constructed a feeder in accordance with such interpretation, and having used it for the long period of time named, "such interpretation will be adhered to by this court." If there is any doubt as to the powers of the canal commissioners to impose a perpetual burden on state property, as now claimed, or as to the meaning of the reservation made by Enoch in his deed, that doubt should be resolved in favor of the state.

"It is also a familiar rule of construction that, where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, and there is a doubt as to the meaning of its terms, or as to its general purpose, that construction should be adopted which will support the claim of the government rather than that of the individual." Slidell v. Grandjean, 111 U.S. 412, 437,4 S.Ct., 475, 487, (28 L.Ed., 321).

This rule of construction peculiarly applies when we come later to construe the language employed in Enoch's deed.

In Utah Power Light Co. v. United States, 243 U.S. 389, at page 409, 37 S.Ct., 387, 391, (61 L.Ed., 791), Mr. Justice Van Devanter, citing many authorities, said:

"As presenting another ground of estoppel, it is said that the agents in the forestry service and other officers and employees of the government, with knowledge of what the defendants were doing, not only did not object thereto, but impliedly acquiesced therein until after the works were completed and put in operation. This ground also must fail. As a general rule, laches or neglect of duty on the part of officers of the government is no defense to a suit by it to enforce a public right or protect a public interest."

To the same effect are Jeems Bayou Fishing Hunting Club v.United States, 260 U.S. 561, 564, 43 S. Ct., 205,67 L.Ed., 402; United States v. Kirkpatrick, 22 U.S., (9 Wheat.), 720, 735, 6 L.Ed., 199; Filor v. United States, 76 U.S., (9 Wall.), 45, 49, 19 L.Ed., 549.

The established rule is that, in doubtful cases, where public interests are involved, every construction should be resolved in favor of the public, and a doubtful or erroneous construction made by officers of the state does not bind the state.

"The doctrine is well settled, in the absence of a statute to the contrary, that no laches is to be imputed to the government, and against it no time runs so as to bar its rights. The Trustees of Greene Township v. Campbell et al.],16 Ohio St. 11], supra." Seeley v. Thomas, 31 Ohio St. 301, 308.

In Lee, Treasurer, v. Sturges, 46 Ohio St. 153, at page 176,19 N.E. 560, 571, (2 L.R.A., 556), Spear, J., of this court, citing authorities in support of the principle, said:

"Nor can laches be imputed to the state. 'The general principle is that laches is not imputable to the government; and this maxim is founded not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions.' "

That the state is not bound by the construction of its canal agencies as to the powers conferred upon them by legislation is distinctly held in State ex rel. Fanger v. Board of PublicWorks, 42 Ohio St. 607. In that case, under the Canal Act of March 23, 1840 (38 Ohio Laws, p. 87), the board of public works conceived that it had the power, when covenanting with a lessee for the use of surplus water, to make an agreement with the lessee that, when the state resumed its use, it would pay the lessee the value of the lasting improvements made upon the lessee's property. While the board of public works construed their power as power so to do, this court held that the board had no such power to contract for the payment of improvements erected upon the property. This case may be cited as authority, not only in support of the principle that the state is not bound by the unwarranted acts of its agents, but that laches cannot be imputed to the state under circumstances where the principle of estoppel would apply to private individuals.

The principle announced in the second proposition of the syllabus is tantamount to an equitable estoppel as against the state. If the canal commissioners improperly construed their powers under the canal Act, or if they construed the reservation in the deed not to be a reservation, but an exception, the state is not bound by any legal limitation, nor estopped, in equity, from claiming its lawful title to this feeder.

In State v. Griftner, 61 Ohio St. 201, 55 N.E. 612, a case involving the title to canal lands which the state had quit using for canal purposes, and which those claiming to be the owners had improved, this court held in its syllabus:

"The fee-simple title to such lands remains in the state after it ceases to use such lands for canal purposes, and the statute of limitations does not run against the state as to such lands."

See, also, Ohio ex rel. v. P., C., C. St. L. Ry. Co.,53 Ohio St. 189, 242, 41 N.E. 205; State ex rel. Parrott v.Board of Public Works, 36 Ohio St. 409, 414; State v.Cincinnati Tin Japan Co., 66 Ohio St. 182, 64 N.E. 68.

As stated on page 208 of the opinion in State v. CincinnatiTin Japan Co., (64 N.E. 69):

"Actions by or against the state can be brought only by express authority of the General Assembly, and the state cannot be estopped by an act of its officers, unless the state has by statute authorized such officer to act on that behalf, and then the estoppel can be no broader than the authority."

But it is contended by the respondent that by long acquiescence of the state the latter is bound, not only by the interpretation which the canal officers made as to their powers, but is also bound by the interpretation of those officers in construing the reservation contained in Enoch's deed to be an exception and not a reservation. The deed of Enoch to the state, made July 28, 1825, conveyed to the state all the lands belonging to him which should be necessarily occupied by the site of the canal, and also by the site of the towing paths, feeders, aqueducts, reservoirs, etc., connecting therewith. The deed to the state was in printed form. But immediately following that grant was added this reservation, in writing: "All water privileges reserved to myself as to mill seats, etc." It will be observed that no words of "exception" were used in this grant. The term used was that of reservation, and it is important to note (1) that the privileges reserved were those which were to come in being after the proposed construction of the canal and the reconstruction of the feeder; (2) the privileges were reserved merely to himself; and (3) they were reserved only for the purpose of "mill seats, etc." Taking these up in their order, there are various reasons why, upon the face of this deed, this was a reservation of a future privilege and not an exception. No term implying an exception is found upon the face of this deed such as is disclosed in the case of Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433, 113 Am. St. Rep., 962. That case was a litigation between private individuals, where this court, laying stress upon the fact that words of exception were used in the deed, construed the language employed to be an exception and not a reservation. But there the estate excepted was a concrete thing in being at the time the deed was executed.

The only words found in this deed are words of reservation. The language employed does not admit of any other construction, and the canal commissioners, if they interpreted it otherwise than as a reservation, exceeded their powers. As heretofore stated, if any doubt existed as to the meaning of the language, then that doubt should be resolved in favor of the state. Mr. Justice Field, of the United States Supreme Court, stating the rule, said:

"That construction should be adopted which will support the claim of the government rather than that of the individual. Nothing can be inferred against the State." Slidell v.Grandjean, supra.

This same rule is applied in a Pennsylvania case to reservations made in a deed between individuals:

"A reservation in a deed is exclusively for the benefit of the grantor; it is not a grant of anything to the grantee, but is in derogation of the grant and therefore an abatement. It results that in construing an ambiguous reservation it is to be taken most strongly against the grantor, since he is the person to avoid ambiguity by speaking out." Sheffield Water Co. v. ElkTanning Co., 225 Pa. 614, 74 A. 742.

The text-books adhere to this rule. See 18 Corpus Juris, p. 345.

"When the language making an exception or reservation in a deed is doubtful, it should be construed more favorably to the grantee. Exclusion of the fee will not, therefore, be implied in construing as an exception that which the deed describes as a 'reservation' for a certain specified use." 8 Rawle C. L., p. 1094.

Not only does the deed stipulate that the water privileges are to be "reserved," but the amended answer also alludes to the terms of the deed as a reservation. It alleges "that said Abner Enoch reserved for himself, and his heirs and assigns," the water from said river to be taken from his own millrace, which afterwards became the feeder of the state. Sometimes the terms "reservation" and "exception" are used interchangeably, and courts are frequently called upon to construe these terms in view of the estate sought to be created by the parties. The distinction between the two is set forth in the opinion in Selden, J., in Craig v. Wells, 11 N.Y. 315,321, where he quotes approvingly the following:

"A reservation is a clause in a deed, whereby the grantor doth reserve some new thing to himself out of that which he granted before. This doth differ from an exception, which is ever part of the thing granted, and of a thing in esse at the time; but this is of a thing newly created, or reserved out of a thing demised, that was not in esse before."

If we then could assume there was any doubt about the construction of these terms under the existing conditions at the time of the grant, we can readily see that the privileges reserved by the deed were not those which were in being or in esse.

The amended answer discloses that the millrace and dam owned by Enoch at the time of making his deed were to be newly constructed by the state. As stated in the answer, the millrace or feeder actually occupied by Enoch was to be occupied by the state feeder, "except at places where said millrace was too crooked to justify its occupation with the new work." It was in contemplation of the parties that it was not the actual feeder and dam used by Enoch at the time that was to be reserved or excepted, but that new construction, affecting both dam and feeder, was to be so employed as to materially change the privilege that Enoch owned at the time of the grant. Furthermore, there could be no separate enjoyment of the water that passed through the newly constructed raceway or feeder by Enoch and the state. No definite or certain amount of water was reserved, which would be necessary if they should be construed to be an exception. The state's use of the water was at all times paramount, and it had the option to utilize all of the waters of the feeder if necessary for canal purposes.

Passing to the next question: If the "privilege" reserved by Enoch constituted a reservation then the only estate reserved to Enoch was purely personal to himself and existed only for the period of his own life. This rule is well established, as is shown by the following authorities: In Embleton v. McMechen,110 Ohio St. 18, 25, 143 N.E. 177, 179 (34 A. L. R., 689), the opinion, citing authorities in its support, expresses the recognized rule thus:

"It has been held in the following cases that, if the grantor makes reservations in his deed of conveyance, words of inheritance must be used in order to pass a fee-simple estate."

This is also connoted in the opinion of Davis, J., inGill v. Fletcher, supra. That words of inheritance are necessary if the terms of the deed are construed to be a reservation is shown by the following authorities: Mandle v. Gharing, 256 Pa. 121, 100 A. 535;Wadsworth, Admr., v. Smith, 11 Me. 278, 26 Am. Dec., 525;Engel v. Ayer, 85 Me. 448, 27 A. 352.

While the amended answer avers that the reservation to Enoch was "to himself, his heirs and assigns," no such reservation appears in the deed; the very fact that Enoch reserved the privileges only for himself evidences the fact that the reservation was purely personal; otherwise he would have used terms of inheritance.

However, there is still an additional reason why the demurrer to the respondent's answer should be sustained. This reservation of water privileges, found in the deed of Enoch, was a reservation to himself "as to mill seats." The pleadings of the respondent in this case are more notable in their silence as to essential facts than in what has been expressly alleged. Possibly a reply to the respondent's answer would more clearly show the true situation. The amended answer does not disclose what "mill seats" existed at the time of the grant of reservation, or whether they still exist. Whatever construction should be given, whether reservation or exception, the term cannot be construed as giving authority to Enoch to employ the waters of the feeder for any other purpose than the mill seats mentioned in the deed. It fairly appears from the amended answer of the respondent that the present purpose for which the waters of the feeder are used is purely commercial and not connected in any wise with any mill seats upon Enoch's property. Indeed it does not appear that the privileges are in any way appurtenant to the land which Enoch occupied when he made the grant to the state. If the waters are being used for commercial purposes, as alleged in the answer, the principle applied by Carroll, J., inJohnson v. Elkhorn Gas Coal Mining Co., 176 Ky. 676,197 S.W. 409, applies here:

"When there is a reservation of a lot for a specific purpose, and that purpose is expressed in the writing, it would be manifestly unfair to permit the grantor to use and occupy the lot for purposes entirely disconnected with and outside of the object of the reservation. The grantee might be perfectly willing to permit the grantor to reserve a lot for a specified purpose when he would not be willing that it should be reserved for another purpose, and, when the use to which the lot is to be put is plainly expressed in the contract, the grantor should not be permitted, over the objection of the grantee, to use the lot for an entirely different purpose and one that was not in the contemplation of the parties at the time the transaction was entered into."

In Dygert v. Matthews, 11 Wend., (N.Y.), 35, there was a grant of land containing an exception in these words:

"Excepting and reserving out of the said piece of land so much as is necessary for the use of a gristmill, on the east side of the road, at the west end of the sawmill dam."

The court held that this was a good exception, but that the grantee could maintain a trespass "against the grantor or his assigns, for an entry on the land for any purpose other than that specified in the reservation."

In Marshall v. Niles, 8 Conn. 369, a grantor in his deed reserved a certain "building adjoining on the east end of said mill," where a carding machine was in operation, together with the use of the water for certain purposes. It was held that such reservation included the building only, and that the right so reserved was "restricted to the buildings then existing, and did not extend to any other building subsequently erected on the same site." To the same effect are the following cases:Green Bay Mississippi Canal Co. v. Hewitt, 66 Wis. 461,29 N.W. 237; Trustees of Phillips Exeter Academy v. New Parishin Exeter, 68 N.H. 10, 36 A. 548; Washburn v. Copeland,116 Mass. 233. So that, whether the words employed in Enoch's deed to the state are construed as a reservation or an exception, the water privileges retained by Enoch can be used only, as expressed in his deed, for mill seat purposes. Neither did the deed express, nor the parties thereto contemplate, that these water privileges were to be extended to other people, to other lands, or to other purposes, such as alleged in the amended answer, to wit, the purpose of conveying the same to Middletown, Ohio, for hydraulic purposes.

Finally, the amended answer of the respondent alleges that, "in pursuance of said contract and said reservation, * * * the state of Ohio was, under said contract, obligated to furnish water to said Abner Enoch" and to maintain the feeder and headgates to their full capacity, so as to furnish the grantor a quantity of water not necessary for the canal company for the purpose of navigation. A sufficient answer to this claim of obligation upon the part of the state is furnished by the authorities heretofore cited, among which is State ex rel. Atty. Gen. v.Cincinnati Central Ry. Co., 37 Ohio St. 157, 174, 175, where Johnson, J., in the course of his opinion, relating to the powers of the board of public works in their care of the canals, and construing statutes in respect thereto, says, that all these statutes "show that the board, in the opinion of the Legislature, possessed no implied power to grant rights and privileges, or to create easements or burdens upon this public property in favor of individuals or corporations."

It follows, from what has been said, that there are various valid reasons why the demurrer to the respondent's amended answer should be sustained.