A grant of the right to use surplus water from a state canal
held subject to the right of the state to abandon the
canal and devote it to other purposes, on the authority of
Kirk
v. Maumee Valley Co., ante p.
279 U. S. 797. P.
279 U. S.
809.
Reversed.
Page 279 U. S. 808
Appeal from a final decree of the district court of three judges
enjoining the appellants from interfering with the flows of water
in part of a canal in such manner as to infringe certain water
rights claimed by the appellee.
MR. JUSTICE STONE delivered the opinion of the Court.
This is a direct appeal, under ยง 266 of the Judicial Code, from
a final decree, following an interlocutory decree, of a district
court of three judges for southern Ohio enjoining appellants, the
State Director of Highways, the Superintendent of Public Works of
Ohio, and county commissioners, from draining or otherwise
interfering with the flow of water in a section of the Miami &
Erie Canal in such manner as to interfere with the rights of
appellee to take surplus water under a grant from the state to
appellees' predecessor in interest. The questions presented are the
same as those in No. 674,
Kirk v. Maumee Valley Electric Co.,
ante, p. 797, the only difference being in the nature of the
grant under which appellee derives its rights to the water.
The grant here involved is embraced in an indenture of September
1, 1842, between the commissioner of the board of public works and
one Minor, as readjusted on February 23, 1846. By it, Minor, a
riparian owner, released and quitclaimed to the state all claims
against it arising out of the use and occupation by the state of
water from the Maumee River and of lands used in the construction
and operation of the Wabash & Erie Canal,
Page 279 U. S. 809
now the Miami & Erie. This release was made in consideration
of a perpetual grant by the state, made after the passage of the
Act of March 23, 1840, 38 Ohio Laws, p. 87, discussed at length in
our opinion in No. 674,
Kirk v. Maumee Valley Electric Co.,
supra. By the grant, the state sold and conveyed a specified
quantity of water "except when otherwise necessary for the
navigation of the canal," and the contract, as readjusted, was
similarly restricted. The grant was subject to the limitations of
the statute of 1840, and the rights conferred under it did not, for
present purposes, differ from those considered in No. 674. They
were likewise subject to the reserved power of the state to abandon
the canal and devote it to other purposes, which was exercised by
the Act of the Ohio Legislature of May 11, 1927, 112 Ohio Laws, p.
360. For the reasons discussed at length in No. 674, and equally
applicable here, the judgment below is
Reversed.