41 Ind. 364 | Ind. | 1872
—The appellees sued the appellants, and in their complaint it is alleged that they are tenants in common and owners in fee simple of a tract of land, described in the complaint, through which the Central Canal runs, in Marion county. “That as such owners they have the right, and are entitled, to cut the ice growing upon the Indiana Central Canal, where the same runs through the premises, using ordinary care, and without unnecessary damage to the canal; that the defendants claim that they are the owners of the canal, and have the sole and absolute right to cut the ice growing upon it, to the exclusion of the plaintiffs; that during the winter of 1871 and 1872, the defendants prevented the plaintiffs from cutting the ice growing upon the canal, where the same is situated upon and runs across the real estate of the plaintiffs aforesaid. And the plaintiffs say that by reason of such unlawful interference of said defendants, in preventing the plaintiffs from cutting ice upon said canal, and selling the same as merchandise, the plaintiffs were deprived of large incomes, profits, and gains, to which they were lawfully entitled as the owners of the real estate.” They demanded judgment for five thousand dollars, and an order that they were entitled to and had the right to cut the ice growing upon the canal, without hindrance by the defendants, and for all proper relief.
The general denial was pleaded, and the cause was tried
The motion was overruled, to which proper exceptions were taken, a bill of exceptions was filed, and judgment was rendered on the finding.
The errors assigned are, first, that the court erred in overruling the motion for a new trial; and, second, in rendering final judgment against the appellants.
The evidence is' in the record, and consists in. an agreed statement of the facts, as follows:
The plaintiffs below, the appellees, are the heirs of Andrew J. Burkhart, deceasecl, who died intestate. The real estate described in the complaint was, on the first day of January, 1836, the property of Nathaniel West, who was seized in fee simple of the same. West died in 1843, leaving certain heirs, naming them, and by agreement amongst the heirs, and certain partition proceedings mentioned, this land was set apart and partitioned to certain of the heirs named, through whom, by regular conveyances, the title became vested in Burkhart. No question has been made about the appellees’ title to the land, except as it may be affected by the appropriation for the canal.
The Board of Internal Improvements, for the purpose of constructing the Central Canal, and to procure a right of way therefor, appropriated a strip of land through said real estate, and constructed thereon the bed of said canal, its banks, margins, and towpaths. West’s damages, occasioned by such appropriation, were assessed, as provided by law, and paid to him as follows: September 30th, 1837, seven hundred dollars, and February 25th, 1839, two hundred and fifty dollars. The Board of Internal Improvements entered upon the strip of land so appropriated, and constructed upon it the bed, banks, margins, and towpaths of the canal. The canal thus constructed continued the property of the State,
The Central Canal, which was constructed by the State under the acts upon the subject of internal improvements and conveyed to said Conwell, is the same canal passing through the real estate described in the complaint, and through the city of Indianapolis, and the portion thereof passing through said real estate is the subject of litigation in this action.
The canal passed by a united chain of title, by proper conveyances, to the defendant, The Indiana Central Canal Company, a corporation organized and created on the 13th of January, 1863, under “an act to provide for the organization of canal and water works companies, and for the completion of the unfinished canals in the State of Indiana,” approved June 17th, 1852.
The defendant, The Indiana Central Canal Company, on the 1st day of May, 1870, by a proper deed of conveyance, conveyed said canal to the defendant, The Water Works Company of Indianapolis, a corporation organized under an act authorizing the formation of companies for the construction,’etc., approved March 6th, 1865. The company was organized on the 7th day of October, 1869. The articles of association are set out, and by the sixth its business was declared to be “ that of furnishing water, which it may do to the city and citizens of Indianapolis, the State, public institutions, firms, and individuals, and all desiring the same in said city and the vicinity thereof.”
The agreed statement of facts concludes as follows: “ The plaintiffs claim the right to pass upon and over the banks of said canal, where it passes through said real estate, doing no
“The defendant, The Water Works Company of Indianapolis, denies this right, and during the winter of 1871 and 1872, prior to the bringing of this suit, forbade its exercise by the plaintiffs, and deprived them of it.
“ That the exercise of this privilege by the plaintiffs is a valuable one, and it is agreed that if upon the facts of this case the plaintiffs are entitled to the privilege claimed by them, their damages shall be assessed at fifty dollars. If, upon the contrary, under the facts of the case, the plaintiffs are not entitled to the privileges claimed by them, then the finding of the court shall be for the defendants.’’
The real question to be decided is, what interest did the State acquire in the land by the appropriation? It appropriated, paid for, and took possession of, a strip of land, the width of which is not stated, and constructed upon the strip so appropriated the bed, banks, margins, and towpaths of the canal, and continued to own and possess it until conveyed in 1850. And the defendants, claiming under several regular conveyances, now own, and are in possession of, all that the State acquired. It is not claimed that there has been any abandonment or forfeiture of any right thus acquired. The plaintiffs below, the appellees, only claim, in their complaint, that they have the right to cut the ice formed upon the canal where it passes through their land, using ordinary care, and without unnecessary damage to said canal. And, in the agreed case, they claim the right to pass over the banks of the canal where it passes through their land, doing so with ordinary care, and doing no unnecessary damage thereto, when the canal is frozen, and the water in the same cannot be used for navigation or hydraulic purposes, and cut ice upon it, and carry the same away, to be used by them as a matter of merchandise.
It is admitted that the State acquired, and that the defend
A supplemental brief has been filed, in which, among other things, it is claimed that The Water Works Company is not authorized to own and maintain a navigable canal, and therefore could not take the Central Canal; but it is expressly agreed by the appellees, that if they are not entitled to the privileges claimed, the finding of the court shall be for the defendant.
Hence, we think, we have really only to determine what power the legislature possessed to appropriate the property, and what interest or estate was appropriated.
And first, as to the power.
The right of eminent domain, that is, the ultimate right of the sovereign power to appropriate, not only the public property, but the private property of all the citizens within the-territorial sovereignty, to public purposes, is inherent in the government; without this power, the State could not establish and open a highway of any kind. No railroad, canal,, or turnpike could be constructed; no ground upon which to build a public building could be procured by the State, or-government, in any other way than by contract with the owner. It is not conferred, but limited by the constitution.. The limitation does not relate to the amount of the estate in property to be taken; only that “ no man’s property shall be taken by law without just compensation, nor, except in case of the State, without such compensation first assessed, and tendered.”
If the legislature attempts, under the power of taking property under the right of eminent domain, to take property confessedly not for public use, then the courts may prevent it. And here, it seems to us, is where a misconception arises. It is said, and admitted, that no more shall be taken than is necessary for the public, but the manner of determining that question, and the tribunal. before which it shall be determined, has, by many, been entirely overlooked. And the case of In re Albany Street, 11 Wend. 149, has been referred to as sustaining the doctrine that the courts would undertake to decide, in the face of a legislative declaration of public necessity, that no such necessity existed. An examination of that case will show that it was an attempt to appropriate what the legislature admitted was not necessary. The act under which it was proposed to take the land, provided that when a part of a lot was required, if the commissioners deemed it expedient to include the whole lot in the assessment, they might do so, and the part not wanted for the street, etc., should become vested in the corporation, who might appropriate it to public use, or sell it. It was held that the corporation could not appropriate the part of the lot not wanted
In the case of The People v. Smith, 21 N. Y. 595, Denio, J., says, on page 398:
“The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation; or it may be delegated to public officers, or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made.” The court held that the party was not entitled to be heard on the question of the expediency of making the appropriation.
The exercise of the right of eminent domain stands on the same ground with the power of taxation. Both are emanations of the law-making power. They are the attributes of political sovereignty, for which the legislature is under no necessity to addx'ess itself to the courts. “In imposing a tax or in appropriating the property of a citizeh, or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law.”
In United States v. Harris, 1 Sumner, 21, on page 42, Judge Story says: “The right, therefore, to take private property for public uses is limited to cases of public exigency. If the legislature expressly, or by necessary implication, state the'exigency to exist, and the extent to which the property is to be taken, that would in common cases be decisive.”
In Ford v. The Chicago, etc., R. R. Co., 14 Wis. 609, it was
In Kane v. The Mayor, etc., 15 Maryland, 240, it was held, that under the forty-sixth section of the third article of the constitution of that State, and the act of the legislature authorizing the city to adopt means for supplying the city with water, the authority was not given to take property for all purposes, but for “ the purpose of conveying water into said city, for the use of said city, and for the health and convenience of the inhabitants thereof.” The opinion was not unanimous. Tuck, J., dissented, on the ground that the act of the legislature made the city authorities judges of the expediency and necessity of what property was needed, etc. But the majority seem to have decided that an issue of fact could be formed, and evidence heard, as to the public exigency.
We think such a doctrine untenable, and, that, practically, it would lead to confusion. If courts can call in question, and control the extent of the interest or estate which the legislature may authorize to be taken, we can see no reason why the exercise .of the power to appropriate and*take any ■interest may not in like manner, and for the same reason, be questioned and controlled, or even denied and prevented. On the same ground, the right to appropriate land upon which to construct a railroad can be called in question. An issue of fact can be made, that the public exigency does not require the construction of the road, or the amount of land which the legislature has authorized to be taken. And thus courts and juries would be sitting in judgment and passing upon what the legislature had decided was required by the public. And the result might be that different verdicts and judgments might be rendered, relative to the power to take parts of adjoining tracts of lands, for the same purpose and on the same state of facts. One jury might decide that the
Heyward v. The Mayor, etc., 7 N. Y. 314, discusses this question, and as the language of the court in that case accords with our views, we quote from it. After speaking of the doctrine of eminent domain, the court says, on» pages 324-5: “With these general views of the right of eminent domain, it is proper to inquire with a little more particularity and precision into its character and extent. Does it imply the right in the sovereign power to determine the time and occasion and as to what particular property it may be exercised? Most clearly it does, from the very essence and nature of the right. To deny it would be to abrogate and destroy it. 2 Kent Com. 340, 3d ed.; Beekman v. Saratoga, etc., R. R. Co., 3 Paige, 73; Varick v. Smith, 5 Paige, 159, 160. Shall the same power determine the estate or quantity of interest in the lands which shall be taken; whether an’ estate for years, for life, or in fee; whether a right of reversion in any event shall be left in the owner, or whether a mere easement shall be taken, without divesting the fee and general ownership of the land? It seems to ine entirely clear that all these powers must of necessity rest in the legislature, in order to secure the useful exercise and enjoyment of the right in question.”
In that case, under an act of the legislature, certain real estate had been appropriated, taken, appraised, and paid for •by the city of New York, for the purpose of extending the almshouse establishment It was provided in the law under which it was taken, that the city should be seized in fee simple of the lands, tenements, and premises so taken. The city took possession of the land, and occupied it for many years for the purposes for which it was authorized to take it.
DeVaraigne v. Fox, 2 Blatchf. C. C. 95, seems to have been upon the same facts, and with the same result.
In Haldeman v. Pennsylvania Central R. R., 50 Pa. St. 425, it is said, that it is not to be overlooked that the reason why the right of the owner of the land taken reverts to him when the public cease to use it for the purpose for which it was taken, is because the State made, at first, but a partial appropriation ; that if the fee had been acquired by purchase, or taken through its right of eminent domain, and devoted to public use as a highway, a cessation of that use could revest nothing in the former owner; that his rights would be gone and he could not resume possession.
In Rexford v. Knight, 1 Kernan, 308, a strip of land had been taken, and at one time actually occupied and used, as a part of the Erie canal; when the canal was enlarged, its location was changed, and the premises in controversy were no longer used for that purpose.
The question was, whether the title did not revert to the original owner. The court held that it did not; that the language of the act of the legislature that the property should be deemed the property of the State, excluded the idea that any one else retained a property in it; that it was
We do not consider it necessary to further refer in detail to authorities, but cite a few of the many examined. Dingley v. City of Boston, 100 Mass. 544; The Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234; Hatch v. Cincinnati, etc., R. R. Co., 18 Ohio St. 92; Cooper v. Williams, 4 Ohio, 253; In the matter of the Water Commissioners v. Lawrence, 3 Edw,
We proceed to inquire what estate the Legislature authorized its public agents to appropriate in lands taken for the construction of its canals.
By an act of the General Assembly, approved January 9th, 1832 (Acts of 1832, p. 3), the duties of the canal commissioners were defined and extended. It will be unnecessary in this case to state all of their duties. They were authorized to construct the Wabash and Erie canal as far as located, and of the residue of the canal aforesaid, from the Ohio state line to the Tippecanoe river, as established by the act of the General Assembly mentioned. Section 9, p. 6, provided, that “it shall and may be lawful for said canal commissioners, or each of them, or any of their agents, superintendents, engineers, or workmen acting under them, to enter upon and take possession of, and use all and singular, any lands, or waters, streams and timber, stone or materials of any kind, necessary for the prosecution of the improvements contemplated ify this act; and to make all such canals, feeders, dykes, locks, dams, and other works, as they may think proper in said prosecution, doing however no unnecessary damage.” The commissioners were authorized to receive, on behalf of the State, from the owners of any such lands, such grants and conveyances as might be-proper and competent to vest a good title thereof in the State, and also to receive grants of such materials as they might need. Provision was also made for estimating the loss or damage, if any, over and above the benefit arising from the canal to such owner, in said premises or matei'ials taken and appropriated for any of the purposes mentioned, in case the same should not be given or granted. Section 11, p. 7, prohibited the erection of any bridge across said canal, the building of any wharf, basin, or watering place; the making or applying of any device whatever, for the purpose of diverting or turning any water from the said canal, or the feeders connected therewith, without first obtaining permission therefor from the
Section 5 required th.e governor to appoint appraisers, and prescribed their duties. Section 6 provided for leasing the surplus water, not needed for navigation, but prohibited selling or leasing such surplus water unless the ground on which it was proposed to be used should be the property of the State. Section 7 reserved to the State the right to resume the use of the water whenever it was deemed necessary'for purposes of navigation. Section 10 of the same act, p. 28, directed the canal commissioners to survey and locate a canal, from a suitable point on the Wabash and Erie canal, via Muncietown, etc., and Indianapolis, at or near the White river, thence to a point on the Ohio river.
The act of 1836, p. 6, provided for a general system of internal improvement. Section 1 provided for the appointment of a board of internal improvement. Section 2 provided,
The argument of the appellees is, that by the act of 1836 all other acts on the subject were repealed. It is not denied, that by condemnation the state acquired the same estate in the land condemned, whether it was for the Wabash and Erie, or any other of the canals authorized to be constructed by the board. Indeed, we do not see how it could be. They were to be located and constructed by the same board, and for the same purpose. Evidently the legislature considered that there was the- same necessity for all, and it intended to confer and extend the same power for the benefit of all. The legislation is in pan materia.
By the act of 1835, the appraisement and payment of the damages vested the fee simple of the land appropriated in the State, and unless that act was repealed by the act of 1836, such would continue to be the effect of such appraisements and payment. The only express repealing clause in the act is in section 21, page 15, which repeals so much of the laws then in .force, as provided for creating, continuing or compensating a state board of appraisers.
The law does not favor a repeal by implication; and though two acts may seem to be repugnant, courts will so construe them that, if possible, the later shall not operate
The re-enactment of an existing provision of a law, in a later statute, does not, necessarily, repeal such former provision. 22 Ind. 1; 9 Ind. 337; 10 Ind. 566. The law does not favor repeal of statutes by implication, but requires clearly repugnant language to effect a repeal. 5 Ind. 41; Coghill v. The State, 37 Ind. 111. Where courts hold that a statute, or any provison thereof, is repealed by implication, it is done in obedience to the legislative will, as manifested in the act. It must appear to have been the intention of the legislature. Tyson v. Postlethwaite, 13 Ill. 727. Judge Catón, on page 734, says: “This principle is illustrated in the opinion of Lord Ch. J. North and the other .judges, in an answer to a question put to them by the Privy Council, reported by Sir Thomas Raymond, at page 397. There a perpetual law had been passed, granting certain revenue out of strong liquors; and subsequently another law was passed, granting the same revenue for two years; and it was held that the last law did not repeal the first, but that the latter continued after the expiration of the former. 'According to the case of the prices of wine, Hob. 215, where by 37 Henry 8, ■ chap. 23, a perpetual law was made for settling prices of wine; then, by the statute of 5 Edward 6, the said perpetual act (through the inadvertence of parliament) was continued, amongst other acts, till the end of the parliament, which continuance was resolved to be idle as to that act; for an affirmative continuance of a perpetual statute cannot work an abrogation thereof.’ ” So a general statute, without negative words, will not repeal a particular' provision of a former one, unless the two are irreconcilably inconsistent. Sedgw. Statutory Law, 123.
The case of Haldeman v. Pennsylvania Central R. R., 50 Pa. St. 425, in some particulars is like this. The State of Pennsylvania, in 1826, enacted a law for appropriating land for a canal, and, on complying with its terms, vesting the title as of an absolute estate in perpetuity in the State. In 1827,
It seems to us that it was not the purpose of the legislature, by the act of 1836, that the State should abandon any work or system already commenced, or acquire any less estate in lands to be thereafter taken for the construction of any of its public works. On the contrary, it appears to have been the purpose, not only to finish all that she had undertaken, but to commence and finish others, and she conferred the management and control of the whole of them upon the Board of Internal Improvement, with authority to take and appropriate lands for the construction of all of them, without distinction or discrimination.
It is said by the appellees that the act of 1836 repealed all prior laws on the subject; that it covered the subject of the old ones, and therefore took their place; that it was a revision, embracing the same general subject-matter, and reduced all the old laws into one, and hence was a virtual repeal of them, without any express provision to that effect. A number of authorities are cited to sustain the position.
Goodenow v. Buttrick, 7 Mass. 142, is the first cited. In that case, Bigelow, for defendant, contended, as the appel
Bartlet v. King, 12 Mass. 555, is the next. In that case it was held that the subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contained no express words to that effect, must,' on general principles of law, as well as in reason and common sense, operate to repeal the former.
Norris v. Crocker, 13 How. U. S. 429, is the next. In that case, on page 439, it is said: “The recent statute covers every offence found in the former act, which subjects the offender to a penalty of five hundred dollars, and prescribes a new, and different penalty, recoverable by indictment; and is plainly repugnant to the act of 1793/’
United States v. Tynen, 11 Wal. 88, is the next and last case cited on that point. In that case, on page 92, Mr. Justice Field said: "When there are two acts on the same subject the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first.”
It must appear that the subsequent statute revised the whole subject-matter of the former one, and was evidently intended as a substitute for it, or that it was repugnant to the old law. In other words, it must appear that it was the intention, of the law-makers to repeal the former law. When that appears, the will of the law-makers is just as manifest as if it had been shown by express words.
As early as 1832, the legislature, by law, declared that the condemnation of land for the construction of the canal should vest a good title to the premises in the State. It
In the first named case, Judge Blackford uses this language: “In estimating the complainant’s damages, the jury were to ascertain the value of his land, taken for the canal, at the time it was taken.” It was not the value of an interest, or estate, in the land less than the whole, but the value of the land taken, that was to be estimated.
Our conclusion is, that it was the intention and purpose of the legislature, by the legislation on the subject, to appropriate a fee simple in the land seized or taken for the construction of her canals as well after as before the act of 18 36.
Our conclusion is in conflict with Edgerton v. Huff, 26 Ind. 35. The court in that case based the right of the trustees of the canal entirely upon the act of 1836, and instead of considering the prior legislation on the same subject in aid of the right acquired by the State, it was regarded as. weakening it, while we regard the entire legislation on the-subject as parts of one system, the former not repealed unless by express enactment, or by necessary implication. Iiv that opinion the power of the legislature is not questioned,.
In Haldeman v. Pennsylvania Central Railroad, supra, it was insisted that the act of 1827, under which the land was taken, did not authorize the taking of a fee. The court said: “There is no direct reference in this second act to the estate or quantity of interest which the commonwealth should acquire in the lands appropriated without purchase and for which the compensation to be made was to be settled by viewers, and if it is not to be construed in connection with the first act, there is nothing in it that gives any different effect to the appropriation from that which generally results from laws providing for taking private property for public use as a highway. Standing alone the act does not seem to contemplate an acquisition of the fee by the commonwealth. But the acts of 1826 and 1827 are in pari materia. It follows that both acts must be construed together, as parts of one system.”
We cannot, of course, tell what the court, as then constituted, would have held if the question had been presented as it has been to us. Yet we cannot but believe that its conclusions would have been the same as ours are in this. At all events, it does not seem to have been considered. That case is overruled.
The judgment of the said Marion Civil Circuit Court is reversed, with costs, with instructions to grant a new trial, and on the said agreed statement of facts to find and render a judgment for the defendants.
The appellant, in argument, presented the following points and authorities:
The State acquired a fee simple by the condemnation of real estate for canal purposes, under the internal improvement act of the 27th of January, 1836.
Cooley Const. Lim. 558; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; Nicoll v. The New York, etc., R. R. Co., 2 Kern. 121; S. C., 12 Barb. 460; Heyward v. The Mayor, etc., of New York, 3 Seld. 314; S. C., 8 Barb. 486; Embury v. Conner, 3 N. Y. 511; People v. Kerr, 27 N. Y. 188; In the matter of Peter Townsend, 39 N. Y. 171; In the matter of New York, etc., Co. v. Kip, 46 N. Y. 546; Rexford v. Knight, 15 Barb. 627; S. C., I Kern. 308; In the matter of the Water Commissioners v. Lawrence, 3 Edw. Ch. 552; De Varaigne v. Fox, 2 Blatchf. C. C. 95; Dingley v. The City of Boston, 100 Mass. 544; Commonwealth v. M’Allister, 2 Watts, 190; Haldeman v. Pennsylvania Central Railroad, 50 Pa. St. 425; Newcastle, etc., Co. v. Peru, etc., Co., 3 Ind. 464; The President, etc., Co. v. The City of Indianapolis, 12 Ind. 620; Gillespie v. Broas, 23 Barb. 370.
The following citations of acts of Congress, statutes of the State, etc., were made to show that the intention was to acquire a fee simple:
Subdivision three of section six, 3 U. S. Stat. at Large, 290; id. 424; 4 id. 47; id. 236; id. 416; id. 716; 5 id. 414; id. 542; id. 731.
Acts of 1828, 10; Acts 1829, 13; Acts 1830, 13; id. 172; sections I, 2, 3, 4, 5, 9, and 13 of act of January 9th, 1832, Acts of 1832,4; sections 1,4, 6,10, of act of February 6th, 1835, Acts of 1835, 25; section-4 of act of February 7th, 1835, Acts of 1835, 31; sections I, 9,10, 14, 16,17, 18, 22,23, 44 of the general internal improvement act of the 27th of January, 1836,6, Acts of 1836, and R. S. 1838, 336; section 5, of the act of January 20th, 1842, Acts of 1842, 35; section 6 of the act of January 31st, 1842, Acts of 1842, 30; sections 1, 4, 9, 19, 23. 24, 3°, 31, 32, 33, 34, 35, 36, 37, 38, 39,4°, 55, 5§ of act of February 28th, 1842, Acts of 1842, 3; section 4 of act of February xoth, 1843, Acts of 1843, 33; sections 248, 264, and 265 of article 16 of chapter 13 of the R. 5. 1843, R- S. 1843, 272, 274, and 275; section I of act of January 10th, 1845, Acts of 1845, 9; sections 1, 2, and 3 of act of January 13th, 1845, Acts of 1845, 10; sections 8, 9, 10, and 33 of act of January 19th, 1846, Acts of 1846, 3; also Acts of 1847, 3, and I G. & H. 689; section I of act of January 28th, 1847, Local Acts of 1847, 260; section 3 of act of 19th of January, 1850, Acts of 1850, 21; sections I and 3 of act of January 21st,. 1850, Acts of Í850, 22; the message of the governor to the 35th session of the general assembly that met December 30th, 1850; Documents, p. 113; joint resolution of February 7th, 1851, Acts of 1851,200; sectionsx,6, 7,and9of act of February 13th, 1851,^ Local Acts of 1851, 358; preambleof the act'of March 9th, 1859, Acts of 1859, . 167, 1 G. & H. 2X0; the deed of the State to Francis A. Conwell, dated June 30th, 1851, conveying to the grantee the northern division of the Central canal. This is the conveyance mentioned in the preamble to the act of March 9th, 1859. Sections 1, 6, 8, and 9 of act of June 17th, 1852, Special Acts of 1852, 93, and 1 G. & H. 205; section 1 of act of November 16th, 1865, Acts of special session of 1865, 116; Act of January 15th, 1849, Local Acts of 1849, 73.
The State had no means of water communication, and railroads had not yet been developed. Real estate was of little or no value, the great body of it selling for Congress price. It was to be the property of the State. The State required in all cases that it should be the fee simple owner of the real estate upon which the water-power was leased, and necessarily would desire to hold the canal by as high a title as the real estate upon which the water was to be used for mill purposes.
In addition to this, the forty-fourth section of the act of 1836, requires that the act shall be “ favorably and liberally construed.”
The canal acts authorize the condemnation of a fee simple.
Section 8 of the act to incorporate The Jeffersonville and New Albany Canal Company, Local Acts of 1836, 243; sections 2 and 5 of the act to incorporate the Brookville and Richmond Canal Company, Local Acts of 1838, 159; sections 2, 3, s, 7, and 18 of the act to incorporate The White Water Valley Canal Company, Local Acts of 1842, 37; section 14 of the act to incorporate The Indiana Canal Company, Local Acts of 1849, 98.
The acts creating the railroad companies chartered about the time of the enactment of the internal improvement act of 1836, authorized the condemnation of a fee simple for a right of way. The act to incorporate The Evansville and Vincennes Railroa4 Company, Local Acts of 1836, 149; the act to incorporate The Crawfordsville, Covington, and Illinois Railroad Company, Local Acts of 1836, 165; an act to incorporate The Princeton and Wabash Railroad Company, Local Acts of 1836, 183 ; an act to incorporate The Lafayette and Danville Railroad Company, Local Acts of 1836, 229; an act to incorporate The Perrysville and Danville Railroad Company, Local Acts of 1836, 227.
This has been the policy of the State as to all the important railroad lines; The Peru and Indianapolis Railroad Company, Local Acts of 1846,210; The Terre Haute and Richmond Railroad Company, Local Acts of 1847, 77; The Indiana Central Railway Company, Local Laws of 1851,80; The Ohio and Mississippi Railroad Company, Local Acts of 1848, 619; The Junction Railroad Company, Local Acts of 1848, 468; The Indianapolis and Bellefontaine Railroad Compafiy, Local Acts of 1848,176; The Jeffersonville Railroad Company, Local Acts of 1849,364; Local Acts of 1850, 424; Local Acts of 1851, 520.
The same is the policy of the State, even under our general railroad laws.
Sections I, 13, 14, 15, 16,18, of the general railroad act of May Ilth, 1852, I G. & H. 504.
The act of May nth, 1852, is to be construed in connection with the chapter for “ assessment of damages,” 2 G. & H. 310.
McMahon v. Cincinnati, etc., Co., 5 Ind. 413; Board of Comm’rs of La Grange Co. v. Cutler, 6 Ind. 354. This chapter authorizes the condemnation •of a fee simple. Also act of March 7th, 1863, Acts of 1863, 33.
When real estate was taken by the State, by condemnation, for the Central canal, the owner was paid the full value of his land. No interest less than a
See, also, M’Intire v. The State, 5 Blackf. 384; The State v. Digby, 5 Blackf. 543; The State v. Beackmo, 8 Blackf. 246; Kimble v. The White Water Valley Canal Co., 1 Ind. 285.
See also, on this subject, Angelí on Highways, sec. 115 (2d ed.).
In the case of Kimble v. The White Water Valley Canal Co., I Ind. 285, which was a condemnation under the charter of that company, hereinbefore set out, it is said: “After such assessment of damages, and the payment thereof, the property taken is evidently intended to be vested permanently in the company.”
All the statutes upon the subject of canals, being in pari materia, must be construed together, to ascertain the legislative intention as to the character of the interest the state acquired in canal lands. The State v. Beackmo, 8 Blackf. 246; Rexford v. Knight, 15 Barb. 627; S. C. on appeal, 1 Kernan, 308; Commonweatth v. M'Allister, 2 Watts, 190; Haldeman v. Pennsylvania Central Railroad, 50 Pa. St. 425.
In New York and Pennsylvania, from which our system is borrowed, the state acquired a fee simple absolute, in the lands acquired for canal purposes, rvhether by condemnation or deed. Baker v. Johnson, 2 Hill N. Y. 342; The People v. Hayden, 6 Hill N. Y. 359; Rexford v. Knight, 15 Barb. 627; Rexford v. Knight, 1 Kernan, 308; Gillespie v. Broas, 23 Barb. 370; In the matter of the Water Commissioners v. Lawrence, 3 Edw. Ch. 552; Commonwealth v. M’Allister, 2 Watts, 190, 197, 198; Union Canal Company v. Young, 1 Whart. 410; Haldeman v. The Pennsylvania Central Railroad, 50 Pa. St. 425; Plitt v. Cox, 43 Pa. St. 486; North Branch Canal Company v. Hireen, 44 Pa. St. 418.
The question of change of legislative policy presented in Edgerton v. Huff, 25 Ind. 35, was presented both in New York and Pennsylvania, as shown by the cases cited. The legislation of those states is so strikingly like ours in its changes, that >,ve infer that our State followed them step by step.
The case of Edgerton v. Huff, 25 Ind. 35, was incorrectly decided, if the State acquired a mere easement.
There was no water on the land until the State brought it there, and the landowner was paid for the burden of having his land used for the passage of the water. The State necessarily acquired the absolute proprietorship of the water in the canal. The uses to which it was to be applied forbade a divided ownership.
The statutes show that the exclusive possession and use were in the State, and that the land-owner was excluded from the use of the banks of the canal.
The land-owner was not in the position of a riparian proprietor.
The cases cited by the court were between the State and the owners of the bed of the water-coarse from which it was proposing to take water.