By an act of Congress passed in 1828, a large quantity of land
was granted to the State of Ohio for the construction of canals.
The act provided that such canals, "when completed or used, shall
be and forever remain public highways for the use of the government
of the United States." The grant was accepted by the state, but in
1894, the state legislature authorized the abandonment of certain
canals which had been constructed under the act of Congress and the
leasing of the same to a railroad company.
Held that there was reason to claim that the act of 1894
impaired the obligation of the previous contract between the state
and the federal government, and that a federal question was thereby
raised.
Held further that, in accepting the Congressional land grant of
1828, there was no undertaking on the part of the state to maintain
the canals as such in perpetuity, and that the government was only
entitled to their free use as long as they were kept up as public
highways, and that the act of the Legislature of Ohio authorizing
their abandonment as canals and leasing them to a railway company
did no violence to the contract clause of the Constitution.
Held further that a private property owner was no party to the
contract between the state and the federal government, and stood in
no position to take advantage of a default of the state in respect
to its contract. His rights were entirely subsidiary to those of
the government, and if the latter chose to acquiesce in the
abandonment of the canals, he had no right to complain.
This was a petition filed in the Court of Common Pleas of
Franklin County, Ohio, by the plaintiff Walsh to enjoin the
defendant railroad company from entering upon the property of the
Lancaster Lateral Canal Company and upon plaintiff's premises, and
from constructing a railroad thereon, and for
Page 176 U. S. 470
a decree ceclaring a certain act of the General Assembly of ohio
giving it permission to do so to be null and void.
The case was determined upon demurrer to the petition, which set
forth substantially the following facts: on February 4, 1825, the
general assembly of the state passed "An Act to Provide for the
Internal Improvement of the Ohio, by Navigable Canals," 23 Ohio
Stat. 50, among which was the Ohio Canal, extending from the mouth
of the Scioto River, through the State of Ohio to Lake Erie and
passing through the Village of Carroll, in the County of Fairfield.
On February 8, 1826, the Lancaster Lateral Canal Company was
incorporated by act of the general assembly, 24 Ohio Laws, 71, and
authorized to construct and operate a canal "from the Town of
Lancaster to such point of the Ohio Canal as shall be found most
eligible." The Village of Carroll was fixed upon as the
terminus.
On May 24, 1828, Congress passed an act to aid the State of Ohio
in the construction of its canals, 4 Stat. 305, by the fifth
section of which act (printed in full in the margin), [
Footnote 1] Congress granted to the
state 500,000 acres of land in that state for this purpose with a
proviso that
"the said canals, when completed or used, shall be and forever
remain public highways
Page 176 U. S. 471
for the use of the government of the United States, free from
any toll or charge whatever, for any property of the United States
or persons in their service passing along the same."
The seventh section of the act declared that
"this act shall take effect provided the Legislature of Ohio, at
the first session thereof hereafter to commence, shall express the
assent of the state to the several provisions and conditions
hereof, and unless such expression of assent shall be made, this
act shall be wholly inoperative."
Pursuant to this act, the General Assembly of the State of Ohio,
on December 22, 1828, passed an act expressly declaring the assent
of the state, to the provisions and conditions of the act of
Congress. Under these acts, the state received and took possession
of the 500,000 acres of land provided by the grant, and from time
to time sold and disposed of the same, and received from the
proceeds of such sale somewhat more than $2,200,000.
The Lancaster Lateral Canal Company, incorporated as above
stated, proceeded to construct and operate its canal under its
charter until December 22, 1838, when it sold and conveyed the same
to the State of Ohio, under an authority conferred upon the board
of public works, by an act passed March 9, 1838, for the sum of
$61,241, which was paid to the company out of the funds realized by
the state from the sale of the congressional land grant. The canal
was subsequently, under an act of the legislature, extended from
its terminus in Lancaster to the Town of Athens, in Athens County,
was opened as a continuous line of canal for navigation purposes
prior to January 1, 1842, and this extension was also paid for by
moneys realized from the sale of the land grant.
The complaint further averred that
"ever since the construction of said canal, which is and has
been known as the Hocking Canal, the same has been and still is a
public highway which has been used for the use of the State of Ohio
and the government of the United States in pursuance of the several
acts of Congress and of the General Assembly of the State of Ohio
hereinbefore set forth."
On April 12, 1894, the Columbus, Hocking Valley &
Page 176 U. S. 472
Athens Railroad Company, defendant herein, was organized and
incorporated for the purpose of building a railroad from the City
of Columbus through the counties of Franklin, Fairfield, Hocking,
and Athens to the City of Athens, and on the 18th day of May, 1894,
the General Assembly of the state passed an act for the abandonment
of the Hocking Canal for canal purposes, and for leasing the same
to this railroad company. (91 Ohio Stat. 327.) The act is printed
in full in the margin. [
Footnote
2] The fourth section of the act provided that the
Page 176 U. S. 473
railroad company should have the exclusive right during the term
of the lease (ninety-nine years)
"to use and occupy the property aforesaid, or so much thereof as
may be necessary, for the purpose of constructing, maintaining, and
operating a railroad thereon. Said company shall not disturb any
vested rights or privileges of abutting property holders along said
canal, and shall hold the state harmless from all loss or damage
resulting to such property holders by reason of the construction
and operation of said railroad."
The plaintiff further averred that the defendant was making
preparations to build its road upon the line of the canal, and was
threatening to take possession of his property without having
acquired the rights and interests in the said lands and tenements
belonging to the plaintiff, whose lands are located on both sides
of the Hocking Canal, about five miles north of the City of
Lancaster, in Fairfield County, and without having purchased or
acquired by condemnation or otherwise the right to enter upon said
lands and to construct said railroad. That such road will
constitute a permanent trespass upon plaintiff's property, and will
place large additional
Page 176 U. S. 474
burdens upon his lands, which will render the same inconvenient
and difficult of access, and great and irreparable injury will be
done in the premises unless the defendant be restrained by an order
of the court from taking possession of said canal and the said
premises of plaintiff and constructing this railroad thereon.
The gist of the complaint lies in the allegation that the Act of
May 18, 1894, authorizing the abandonment of the canal, conflicts
with that clause of the Constitution which provides that "no state
shall pass any law impairing the obligation of contracts," and also
with several provisions of the Constitution of Ohio not necessary
to be here enumerated.
A general demurrer was filed to this petition, which was
sustained by the court, and the petition dismissed. Plaintiff
appealed the case to the circuit court, which also sustained the
demurrer, whereupon plaintiff appealed the case to the supreme
court of the state, which reversed the judgment of the circuit
court and ordered that the railroad company be enjoined from
entering upon the lands of the plaintiff until it had condemned and
paid for the additional burden of constructing and operating the
railroad on the land, according to law. 58 Ohio St. 123.
Upon motion of the plaintiff, the court certified that, in the
rendition of this judgment, it became material to determine whether
the Act of May 18, 1894, was repugnant to the contract clause of
the Constitution, and ordered it to be further certified that the
court adjudged that it was not in violation of or repugnant to such
clause, and that such act was valid and binding upon the plaintiff.
Whereupon plaintiff sued out a writ of error from this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
Page 176 U. S. 475
1. Motion was made to dismiss the writ of error in this case for
want of a federal question. The decision of this motion was
postponed to the merits, and we are now of opinion that it must be
denied.
The position of the plaintiff is that the Act of Congress of May
24, 1828, granting to the State of Ohio 500,000 acres of land for
the construction of canals, and providing that such canals, "when
completed or used, shall be and forever remain public highways for
the use of the government of the United States," and the acceptance
thereof by the General Assembly, constitute a contract by the state
for the perpetual maintenance of such canals as public highways, at
least until they were given up by consent of the United States, and
that the subsequent act of the General Assembly of May 18, 1894,
providing for the abandonment of such canals without such consent's
being given was obnoxious to that provision of the federal
Constitution declaring that no state shall pass a law impairing the
obligation of contracts.
The main question, then, is whether the acceptance of this act
of Congress of 1828 by the General Assembly of Ohio should be
interpreted as raising a contract by the state for the perpetual
maintenance of these canals as public highways. We have repeatedly
held that where the plaintiff relies for his recovery upon the
impairment of a contract by subsequent legislation, it is for this
Court to determine whether such contract existed, as well as the
question whether the subsequent legislation has impaired it.
State Bank of Ohio v.
Knoop, 16 How. 369;
Bridge
Proprietors v. Hoboken Co., 1 Wall. 116. This rule
also applies to a contract alleged to be raised by a state statute,
although the general principle is undoubted that the construction
put by state courts upon their own statutes will be followed here.
Jefferson Branch Bank v.
Skelly, 1 Black 436;
McGahey v. Virginia,
135 U. S. 662;
Douglas v. Kentucky, 168 U. S. 488;
McCullough v. Virginia, 172 U. S. 102.
We cannot say that it is so clear that the statute in question
is not open to the construction claimed that we ought to dismiss
the writ as frivolous within the meaning of the cases
Page 176 U. S. 476
which hold that where the question is not of the validity, but
of the existence, of an authority and we are satisfied that there
was and could have been no decision by the state court against any
authority of the United States, the writ of error will be
dismissed.
Millingar v.
Hartupee, 6 Wall. 258;
New Orleans v. N.O.
Waterworks Co. 142 U. S. 79,
142 U. S. 87;
Hamblin v. Western Land Co., 147 U.
S. 531. If the statute were given the construction
claimed by the plaintiff, it would be difficult to avoid the
conclusion that the abandonment of the canal under the act of 1894,
and its lease to the defendant railroad company, were a repudiation
of the duty of the state to maintain it as a public highway, though
the question would still remain whether the plaintiff would be in a
position to take advantage of such default.
2. In disposing of this case, the Supreme Court of the State of
Ohio held (1) that the defendant railroad corporation had the power
to build a railroad between the termini named, and to acquire by
purchase or condemnation a right of way for its road and other
property necessary for its operation; (2) that the act of Congress
of 1828, donating land to the state for the construction of canals,
and the act of the General Assembly of the state accepting the
same, did not constitute a contract for the perpetual maintenance
of such canals; (3) that, if such a contract existed, the
plaintiffs in these suits were not parties to it; (4) that the
Lancaster Lateral Canal Company did not acquire a fee simple in the
lands, but a title for the uses and purposes of the canal, and the
company could not, when the use ended, sell them to others, but the
lands reverted to the owners of the freehold; (5) that by leasing
the lands for the purposes of a railroad, the original easement in
the lands was not extinguished, but passed to the purchaser, who
took it subject to the duty of making compensation to the owner of
the freehold for the additional burden imposed on the land, and
such damages as might result to him from the new use.
We are concerned only with the second and third of these
conclusions, which turn upon the construction to be given to the
act of Congress of 1828. If, by the acceptance of this act by the
General Assembly of the State of Ohio, the state
Page 176 U. S. 477
became irrevocably bound to keep up the canals for all time for
the use not only of the government, but of everyone who
incidentally profited by their preservation, it is impossible to
escape the conclusion that their subsequent abandonment impaired
the obligation of such contract. But we think the Supreme Court of
Ohio was clearly right in its interpretation of the statute. The
principal object of the act was a donation of lands to aid the
state in works of internal improvement which were then being
extensively contemplated in the newer states of the west. Canals at
that time embodied the most advanced theories upon the subject of
internal transportation. Congress annexed as a condition to the
grant that the canals built by its aid should, "when completed or
used, be and forever remain public highways for the use of the
government." Counsel for the defendant insists that, under the
terms of the proviso, the obligation to maintain these canals as
public highways existed only so long as they were "used" as such,
and this was evidently the opinion of the Supreme Court of Ohio.
Counsel for plaintiff insists, upon the other hand, with much
reason, that the proviso, that "the said canals, when completed or
used, shall be and forever remain public highways" marks the
beginning of the time when the obligation was intended to operate
-- that is, if the canals were completed, or, without being
completed, were so far completed as to be capable of use, and were
used, the obligation to maintain them in perpetuity attached.
Whatever be the proper interpretation of these words -- and they
are by no means free from ambiguity -- the dominant idea of the
proviso was evidently to compel the state to maintain the canals as
public highways, and to allow the government free use of them "for
any property of the United States or persons in their service
passing along the same." Whether the canals should be maintained
forever as such, or should give place to more modern methods of
transportation, was a matter of much less moment to the United
States than to the state. The general government was only
interested in securing their use for the public and the free
transportation of its own servants and Property. The object of the
act was to facilitate and encourage public
Page 176 U. S. 478
improvements, but not to stand in the way of the adoption of
more perfect methods of transportation which might thereafter be
discovered. Had the question of internal improvements arisen ten or
fifteen years later, when railways began to be constructed, it is
quite improbable that the state would have embarked upon this
system of canals or that Congress would have aided it in the
enterprise. Waiving the question whether the state could have
abandoned the lands upon which these canals were built as public
highways, we think it entirely clear that Congress could not have
intended to tie the state down to a particular method of using them
when subsequent experience has pointed out a much more practicable
method, which has supplanted nearly all the canals then in use.
There was no undertaking to keep up the canals for all time, and we
think the proper construction of the proviso is that the government
should be entitled to the free use of the canals so long as, and no
longer than, they were maintained as public highways, and that the
act of 1894, leasing these lands to the defendant for an analogous
purpose, does no violence to the contract clause of the
Constitution.
Were the question one of doubt, we should hesitate long before
refusing to defer to the many opinions of the Supreme Court of
Ohio, through several changes in its personnel, holding it to be
within the power of the state to abandon the canal for other public
purposes, and that such abandonment gave no right of action to
private parties incidentally affected or damnified by it,
Hubbard v. Toledo, 21 Ohio St. 379;
Little Miami
Elevator Co. v. Cincinnati, 30 Ohio St. 629;
Fox v.
Cincinnati, 33 Ohio St. 492,
affirmed by this Court,
103 U. S. 104 U.S.
783;
Hatch v. Railroad Co., 18 Ohio St. 92;
Malone v.
Toledo, 28 Ohio St. 643;
State v. Board of Public
Works, 42 Ohio St. 607;
Pennsylvania & Ohio Canal Co.
v. Portage County Commissioners, 27 Ohio St. 14;
McCombs
v. Stewart, 40 Ohio St. 647;
State v. Snook, 53 Ohio
St. 531; but the State of Ohio does not stand alone in affirming
this principle.
People v. Kerr, 27 N.Y. 188;
Lexington
&c. Railroad v. Applegate, 8 Dana 289;
West v.
Bancroft, 32 Vt. 367;
Haldeman v. Pennsylvania Central
Railroad, 50 Pa. 425;
Chase v. Sutton Mfg. Co., 4
Cush. 152.
Page 176 U. S. 479
In addition to this, however, the plaintiff stands in no
position to take advantage of a default of the state in this
particular. He was not a party to the contract between the state
and the federal government; his rights were entirely subsidiary to
those of the government, and if the latter chose to acquiesce in
the abandonment of the canals, as it seems to have done, he has no
right to complain. He can only sustain this bill upon the theory
that his rights are equal to those of the government, and that he
can call upon the state to maintain the canal for his benefit.
The case of
Grinnell v. Railroad Company, 103 U.
S. 739, is pertinent in this connection. That was an
action in ejectment brought by a railroad company to recover
certain parcels of its land grant upon which the defendants had
settled and asserted rights under the homestead and preemption laws
of the United States. Their defense was that the company had no
title, because it had lost whatever right it had to the lands by a
change in the location of the road and because locating the road as
it was completed did not bring these lands within the limits of the
land grant act. The Court held that, the lands being within the
limits of the first location, the construction of the road on the
new line did not annul or defeat, without further action on the
part of the United States, the title thus vested; that Congress had
consented to the change without any declaration affecting the title
already vested in the company by the first location, and that
defendants were bound thereby. In delivering the opinion of the
Court, Mr. Justice Miller observed:
"Another point equally fatal to the plaintiffs in error is that
the assertion of a right by the United States to the lands in
controversy was wholly a matter between the government and the
railroad company or its grantors. The legal title remains where it
was placed before the act of 1864. If the government desires to be
reinvested with it, it must be done by some judicial proceeding or
by some act of the government asserting its right. It does not lie
in the mouth of everyone who chooses to settle on these lands to
set up a title which the government itself can only assert by some
direct proceeding. These plaintiffs had no right to stir
Page 176 U. S. 480
up a litigation which the parties interested did not desire to
be started. It might be otherwise if the legal title was in the
government. Then the land would be subject to homestead or
preemption rights."
A similar case is that of
Van Wyck v. Knevals,
106 U. S. 360. In
that case, the railroad company had filed a map of definite
location, and the Land Department had withdrawn the odd-numbered
sections appropriate thereto; but in constructing the road, the
company departed from the line indicated. The lands in dispute were
within ten miles of the road as built and of the line delineated on
the map. They were entered by Van Wyck, who received a patent for
them, and Knevals, who had acquired his rights from the railroad
company, filed a bill against Van Wyck seeking to charge him as
trustee for the lands, and the court decreed a conveyance
accordingly. The defendant attacked the right of the company to the
grant, alleging that it never completed the construction of the
entire road for which the grant was made; that, after filing its
map with the Secretary of the Interior, it changed the route of the
road for a part of the distance. The court held, however, that the
company had constructed a portion of the proposed road, and that
portion was accepted as completed in the manner required by the act
of Congress; that if the whole of the proposed road had not been
completed, any forfeiture consequent thereon could only be asserted
by the United States through judicial proceedings or through the
action of Congress.
"A third party cannot take upon himself to enforce conditions
attached to the grant when the government does not complain of
their breach. The holder of an invalid title does not strengthen
his position by showing how badly the government has been treated
with respect to the property."
The only contract in this case was between the State of Ohio and
the United States. Plaintiff was neither party nor privy to such
contract. It was within the power of the government to prosecute
the state for a breach of it or to condone such breach if it saw
fit. As it adopted the latter course, and has deemed it proper to
acquiesce in the abandonment of the canals and in the state's
turning them over to the railroad
Page 176 U. S. 481
company, it does not lie in the mouth of the plaintiff to
complain. This disposes of every question called to our attention
in the briefs of counsel.
The plaintiff is amply protected by the decree of the supreme
court enjoining the railroad company from entering upon his lands
until payment has been made, after proper proceedings, for the
increased burden caused by the use of the lands for the railroad.
If any taking of the lands consequent upon the remanding of the
cause for the purpose stated should suggest ulterior questions,
they do not arise there, and would not be concluded by an
affirmance of the decree now before us for review.
The decree appealed from is therefore
Affirmed.
[
Footnote 1]
"SEC. 5. And be it further enacted, That there be, and hereby
is, granted to the State of Ohio five hundred thousand acres of the
lands owned by the United States within the said state, to be
selected as hereinafter directed, for the purpose of aiding the
State of Ohio in the payment of the debt, or the interest thereon,
which has heretofore been, or which may hereafter be, contracted by
said state in the construction of the canals within the same,
undertaken under the authority of the laws of the said state, now
in force or that may hereafter be enacted, for the extensions of
canals now making; which land, when selected, shall be disposed of
by the Legislature of Ohio, for that purpose, and no other:
Provided, the said canals, when completed or used, shall
be and forever remain public highways for the use of the government
of the United States, free from any toll or charge whatever, for
any property of the United States or persons in their service
passing along the same:
And provided further, That the
said canals, already commenced, shall be completed in seven years
from the approval of this act; otherwise the State of Ohio shall
stand bound to pay over to the United States the amount which any
lands sold by her, within that time, may have brought; but the
validity of the titles derived from the state by such sales shall
not be affected by that failure."
[
Footnote 2]
"An Act to Provide for the Abandonment of the Hocking Canal for
Canal Purposes and for Leasing the Same to the Columbus. Hocking
Valley and Athens Railroad Company."
"SECTION 1. Be it enacted by the General Assembly of the State
of Ohio that the Hocking Canal, from its junction with the Ohio
Canal in the Village of Carroll, Fairfield County, to its
southeastern terminus in the Village of Nelsonville, Athens County,
be and the same hereby is abandoned for canal purposes, and the
same shall not be used for canal purposes during the pending of the
lease provided in the next section of this act."
"SEC. 2. There is hereby granted the right, franchise, and
privilege of constructing, maintaining, and operating over, upon,
and along the Hocking Canal and property of the State of Ohio
adjacent thereto a railroad with single or double tracks, side
tracks, switches, bridges, stations, and other structures usual and
incidental to the operation of a railroad, to the Columbus, Hocking
Valley and Athens Railroad Company, its successors and assigns, for
the term of ninety-nine years, renewable forever, for and in
consideration of the payment by said company, its successors or
assigns, to the Treasurer of the State of Ohio, on the first day of
July, 1894, of the sum of fifty thousand dollars, and on the first
day of January, 1900, and of each and every year thereafter, during
the term of this lease, of the sum of ten thousand dollars annual
rental."
"SEC. 3. Said installment of fifty thousand dollars shall be
paid into the state treasury before the construction of said
railroad is begun, and for the remaining installments of rental,
the State of Ohio shall have a first lien upon said railroad,
together with its switches, side tracks, bridges, and other
structures erected on said property of the State of Ohio, which
shall be superior to any and all other liens of every kind upon the
same. The said Columbus, Hocking Valley and Athens Railroad Company
shall further execute unto the State of Ohio, to be approved by the
auditor of the state, secretary of state, and attorney general, or
any two of them, a good and sufficient bond in the sum of one
hundred thousand dollars, conditioned that said company will
faithfully build said railroad in compliance with the condition and
terms of this act, and upon failure to build said road within the
time herein specified, they shall be liable to the State of Ohio in
the full sum of one hundred thousand dollars as stipulated damages.
Said bond shall be executed and filed with the secretary of state
within ten days after the passage of this act."
"SEC. 4. In consideration of the payments aforesaid, said
railroad company, its successors and assigns, shall have the
exclusive right during the term aforesaid to use and occupy the
property aforesaid, or so much thereof as may be necessary, for the
purpose of constructing, maintaining, and operating a railroad
thereon. Said company shall not disturb any vested rights or
privileges of abutting property holders along said canal, and shall
hold the state harmless from all loss or damage resulting to such
property holders by reason of the construction and operation of
said railroad:
Provided, That when said railroad, its
successors and assigns, cease to use said canal for railroad
purposes, said canal property shall revert to the state for canal
purposes."
"SEC. 5. This act shall not be construed to prevent the levying
and collecting of taxes on said railroad in the same manner as they
are levied and collected on other railroad property in this
state."
"SEC. 6. The work of constructing said railroad shall be
commenced within six months after the passage of this act, and the
same shall be completed within two years thereafter."
"SEC. 7. This act shall take effect and be in force from and
after its passage."
