1. Pursuant to authority conferred by law, the Board of Public
Works of a state leased the surplus water of her canals, but
reserved the right to resume the use of it when it should be needed
for the purposes of navigation. A statute was subsequently passed
whereby one of the canals within certain limits was granted to, and
appropriated by, a city for a highway.
Held that the
lessee was not thereby deprived of his property without due process
of law, as the state, so far from assuming an obligation to
maintain the canals to supply water power, had the right, of which
every lessee was bound to take notice, to discontinue them whenever
the legislature deemed expedient.
2. The question as to whether the city acted in excess of the
grant and violated the conditions thereto annexed cannot be
reexamined here on a writ of error to a state court.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
By the laws of Ohio, the Board of Public Works was authorized to
sell or lease, for hydraulic purposes, the surplus water in the
canals of the state not required for the purposes of navigation.
This included water passing round the locks from one level to
another. but it was expressly provided that no power should be
leased or sold, except such as should accrue from surplus water,
"after supplying the full quantity necessary for the purposes of
navigation." The laws also required that every lease or grant of
power should contain a reservation of the right to resume the
privilege, in whole or in part, whenever it might be deemed
necessary for the purposes of navigation. In case of resumption,
the rents reserved were to be remitted or correspondingly
Page 104 U. S. 784
reduced. Rev.Stat. 1880, secs. 7775-7778; Act of march 23, 1840,
Laws of 1840, p. 174, secs. 20, 21, 22, 23.
The state owned, among others, the Miami and Erie Canal, having
one of its termini at the City of Cincinnati, where it connected
with the Ohio River through a series of locks, beginning on the
east side of Broadway, a street in the city. A lease was made by
the Board of Public Works of the water which passed around one of
these locks, known as lock No. 8, for hydraulic purposes. Provision
was made in accordance with the requirements of the law for a
resumption of the privilege if deemed necessary for the purposes of
navigation &c. Fox became the owner of this lease as early as
1855.
On the 24th of March, 1863, a statute was enacted under which a
grant was made to the city of that part of the canal between
Broadway and the river for a public highway and sewerage purposes,
but subject to all outstanding rights or claims, if any, with which
the grant might conflict. No work could be done by the city upon
the granted premises until its plan of improvement should be
approved by the Board of Public Works. Sec. 2 of the statute
authorizing this grant is as follows:
"The said grant shall not extend to the revenues derived from
the water privileges in said canal, which are hereby expressly
reserved, and the said grant shall be made upon the further
condition that the said city, in the use as aforesaid of all or any
of said portion of said canal, shall not obstruct the flow of water
through said canal nor destroy nor injure the present supply of
said water for milling purposes, and that said city shall be liable
for all damages that may accrue from such obstruction or injury;
but it is not intended hereby to relieve the lessees of said canal
or their assignees from any responsibilities imposed upon them by
'An act to provide for leasing the public works of the state,'
passed May 8, 1861, or by the instrument of lease executed in
pursuance of said act, except as and to the extent that they may be
interfered with as said city may from time to time, enter upon,
improve, and occupy any part of said grant."
In constructing the avenue contemplated by the statute, Fox
claimed that the power to be furnished under his lease was
destroyed, and he brought this suit against the city to recover
Page 104 U. S. 785
the damages which he alleges he thereby sustained. The defense
relied, among other things, on the statute as an abandonment of the
canal by the state for the purposes of navigation, and claimed that
this amounted to a rescission of the lease. To this he replied that
if the statute had that effect, it was void under the Constitution
of the United states because it deprived him of his property
without due process of law and without just compensation. The
supreme court of the state sustained the law and, to test the
correctness of that decision, he brought this writ of error.
That the state by its grant to the city actually abandoned the
canal at the point in question cannot be denied. The use of the
property as a public street is clearly inconsistent with all ideas
of navigation by water. The single question we have to consider is
whether there is anything in the lease under which Fox claims which
prevents the state from making such an abandonment without
compensation to him. Whether the city has acted in excess of the
grant and violated the provisions of sec. 2 of the statute, so as
to render itself liable for damages on that account, is for the
state court to determine, and its decision on that question is not
reviewable here.
The use of the water for hydraulic purposes is but an incident
to the principal object for which the canal was built -- to-wit,
navigation. The large expenditures of the state were to furnish not
water power, but a navigable highway for the transportation of
persons and property. The authority of the Board of Public Works to
contract in respect to power was expressly confined to such water
as remained after the wants of navigation had been supplied, and it
never could have been intended in this way to impose on the state
an obligation to keep up the canal, no matter what the cost, for
the sole purpose of meeting the requirements of its water leases.
There was certainly no duty resting on the state to maintain the
canal for navigation any longer than the public necessities seem to
require. When it was no longer needed, it might be abandoned, and
if abandoned, the water might be withdrawn altogether. Provision
was made for resuming the water and stopping the supply, if the
canal was kept up for navigation, but no such provision was
necessary in respect to the abandonment
Page 104 U. S. 786
of the whole work, because the right to abandon followed
necessarily from the right to build. If the water was resumed while
navigation was maintained, no matter how injuriously it affected
lessees, all that could be asked of the state was to forego the
further collection of rents or refund a reasonable proportion of
such as had been paid in advance. The entire abandonment of the
canal could not create any different liability. Every lessee of
power took his lease and put up his improvements with full notice
of the reserved right of the state to discontinue its canal and
stop his supply of water.
This is an accordance with repeated decisions, both in Ohio and
other states, and seems to us fully sustained on principle and
authority.
Hubbard v. City of Toledo, 21 Ohio St. 379;
Elevator Company v. Cincinnati, 30
id. 629;
Trustees of the W. & E. Canal v. Brett, 25 Ind. 409;
Fishback v. Woodruff, 51
id. 103;
Commonwealth v. Pennsylvania Railroad Co., 51 Pa.St. 351.
We are referred to no case to the contrary.
Judgment affirmed.