
    *George Longstreet v. John Harkrader et al.
    The owner of lands on the line of the Warren County canal has no right, since the abandonment of said canal by the state, to keep up its embankments for the purpose of diverting the waters of Shaker creek from their natural course over his own premises, and throwing them through a breach in this abandoned work upon the lands of others, to their injury.
    Appeal. Reserved in the district court of Warren county.
    This is a civil action brought by the plaintiff to perpetually enjoin the defendants from cutting through the west bank of the Warren County canal, so as to cause the waters of Shaker creek to flow, as they did before the canal was constructed, through lands since purchased by the plaintiff.
    A provisional injunction was allowed by a judge of the common jileas.
    The case was taken to the district court by appeal, and therein reserved to this court upon the following findings of fact:
    The waters of Shaker creek originally .crossed the line of the Warren County canal opposite the mouth of the new channel cut for the creek by the Shaker Society, in 1825. This artificial channel was dug by the Shaker Society for the purpose of shortening the channel of the creek through their lands, on the east side of the line of the canal, and terminated a short distance east of the line of the canal. Near the termination of this artificial channel, the ground there being low, the water of the creek began to spread, having no distinct or well-defined channel, and, about twenty rods west of the line of the canal, united with the waters of Miller’s run, which came in from the south. The waters of these two streams, meeting in low ground covered with woods, spread out over some three or four hundred acres of land called Shaker Swamp, one or two hundred acres of which is now owned by the plaintiff and one William Thompson. Through this swamp, in which were logs and bodies of fallen trees, the water had no distinct channel for about three-quarters of a mile; but the outlet of the swamp was in a northwest direction from the point where Shaker creek entered the swamp, ^whence said waters continued to flow in a channel, in a northwest direction, through the lands of plaintiff and Thompson, into a stream forming one of the sources of Dick’s creek.
    About the year 1835, the Wai’ren County canal was constructed along the east line of the farm now owned by the plaintiff, having its west embankment on his land. The waters of Shaker creek were intercepted by this canal, into which it flowed from the east; and at this point, on the west embankment of the canal, a waste-weir was constructed by the state for the passage of the surplus water; but, eighteen months afterward, not answering the purpose intended in times of freshets, for want of sufficient fall, this waste-weir was removed by the state, to a point a mile and a quarter farther north, and thence the surplus water flowed into Dick’s creek. The waters of Shaker creek thenceforward flowed into and were mingled with the waters of the canal, and were discharged therefrom through said wasto-weir.
    About the year 1847 or 1848, a breach took place in the west bank of the canal near this waste-weir, which has never been repaired, nor since that time have any repairs been made on the canal by the state; but the canal has been, in fact, abandoned for purposes of navigation by the state, as one of its public works, and has not been navigated by boats or capable of ■ navigation since 1850. The waters of Shaker creek being prevented, by the west embankment of the canal, from flowing as they had been accustomed to flow before the construction of the canal, were, by reason of the breach in it, discharged through the broach, and flowed to and upon the lands of the defendants, and thereby, in times of freshets, their lands are overflowed to the extent of from one hundred to two hundred acres in all.
    When restrained by order of the court, the defendants were preparing to cut the west embankment of the abandoned canal, at the point where the waters of Shaker creek' originally crossed the same, and had received the authority of the board of public works therefor, under the act of April 29,1854. 52 Ohio L. 69.
    By such cutting, a large quantity of the lands of the plaintiff, which are now capable of cultivation, would be again *overflowed, as before the construction of the canal, unless such overflow bo prevented by cutting a channel three-quarters of a mile long through the plaintiff’s lands.
    The plaintiff purchased his farm in 1847, before the breach in the canal occurred, excepting fifty acres which he purchased in 1854.
    The defendant Naylor owned a portion of his land, affected by the present flow of Shaker creek through the breach in the canal bank, as early as 1828. The residue of Naylor’s lands, and the lands of the other defendants, were purchased by them, severally, between the years 1847 and 1854.
    
      Durbin Ward, for plaintiff, argued:
    The defendants had no right, under the authority of the board of public works, by virtue of the legislation on the subject, to cut away the west embankment of the canal, at a point where Shaker creek enters it, and allow that creek to overflow the plaintiff’s land.
    The Warren County Canal Company was incorporated by special act February 22, 1830. 28 Ohio L, L. 124.
    The act of February 29, 1836 (34 Ohio L. L, 145), authorized the state to take possession and complete the canal, and making it a part of the Miami canal, and subject to all the general canal Jaws of the state. Under this act, the canal commissioners of the state took possession, settled with the canal company, and completed tlie canal so far, at any rate, that it was accepted as finished.
    1. The transaction was a contract by which the state was bound to keep up the canal, so that it could not legally autliorize, in the manner attempted by defendants, the destruction of its embankments. After the state had thus taken possession and purchased the canal, it could not cut away its banks — destroy it — except in the exercise of its right of eminent domain.
    2. The canal in the possession of the state became an appendage of the Miami canal, and subject to the general canal laws of the state. These laws make it highly penal to cut away and destroy the banks of a canal. Nor do the latter statutes confer such authority. 51 Ohio L. 535; 52 Ohio L. 69. *The refusal to expend money in the repairs is not an abandonment of the canal.
    The clause in the act authorizing the turning of Shaker creek “into its original channel” does not justify the defendants. The board of public works was empowered to authorize any “ owner ” of land on the bank of the canal to cut away the bank and flow the creek in its old channel, over his own land, provided he would do so without charging the state — -“at his own expense” — but not off his own land upon his neighbor.
    Equity requires that as each party bought his land with reference to the existing state of things, neither shall be allowed, at the expense or to the injury of the other, to better his own condition.
    The canal was not abandoned legally. But if it were, it would leave the parties in statu quo — just where they stood at the time of the abandonment.
    The defendants are precluded by acquiescence. The water flowed past plaintiff’s land for twenty-one years in the channel of the canal, and that flow is enough to secure his rights by prescription.
    
      A. Gr. McBurney, also for plaintiff, argued:
    1. The equities of the case are with the plaintiff who purchased his land after the waters of Shaker creek were diverted by the state from the old channel into the canal, and before the breach in it; but all the defendants, except Naylor, purchased after the breach in the embankment; and but a small portion of Naylor’s land is overflowed in times of high water. The defendants would violate the plainest principles of equity by throwing the incumbrance that was upon their land, when they bought it, back upon the plaintiff’s land, thereby increasing the value of their own land, but greatly damaging the land of the plaintiff. 14 Ohio St. 10.
    2. The legislature had no right to authorize the board of public works to permit the embankment to be cut at the point where the water had been accustomed to flow before the embankment was made, without, at the same time, making some provision for compensation to the plaintiff for the consequent ^damage to his land. That would be worse than taking the property of an individual for public use ; the plaintiff’s property is actually destroyed, that the land of others may be enhanced in value.
    
      3. If the embankment is disturbed, it should not simply be cut in a particular place, but be removed entirely.
    
      J. M. & J. M Smith, for defendants:
    1. No question of acquiescence on the part of the defendants can arise, for the-reason that sufficient time had not elapsed after the breach in the canal embankment, and the consequent formation of the new channel through their lands, and before the attempt of the defendants, in pursuance of the authority given them by the board of public works to re-open the old channel, to raise the presumption of such acquiescence. Haight v. Price, 21 N. Y. (7 Smith) 241.
    2. The plaintiff can stand in no other or better position than did the owner of the land at the time the canal was constructed. It is, therefore, immaterial when he purchased. The state, in the construction of the canal, did not undertake forever to relieve the land purchased by the plaintiff from the waters of this creek, and the plaintiff can not justly claim that such shall be held to be the effect of the act of the state by which this diversion was made.
    Nor is it material when the defendants purchased their lands. They can stand in no wdrse position than the grantors.
    3. Upon the abandonment of the canal, all things should be put in statu quo, as far as the same may possibly be done. The state, by an act of sovereign power, and for the public advantage, diverted the stream. When the public use which occasioned the interference with the stream ceases, it is but common sense and ordinary justice that the interference should cease. The true rule, applicable to cases of this kind, is that the private interest of the individual is never to be sacrificed to a greater extent than is necessary to secure the public object. To that extent only have his rights become impaired ; and on the cessation of the public use he is to be remitted to the enjoyment of all of which he had been deprived. See 28 Ohio L. L. 124; 34 Ib. 145; 51 Ohio L. 535; 52 *Ohio L. 69. The last act referred to, directs and empowers [28 the board of public works to authorize individuals, at their own expense, to turn Shaker creek into its original channel.
   Scott, C. J.

The question in this case is not as to the equitable rights of the plaintiff against the state. With these we have nothing to do in the consideration of this case. But the question is concerning the rights of the plaintiff, whether derived from the state, or otherwise, as against the defendants, whose lands lie adjacent to his own. Has he a right, for the benefit of his lands, to keep up the west embankment of the structure once known as the "Warren County canal, for the purpose of diverting the waters of Shaker creek from their natural course, over his own premises, and throwing them through a breach in this ruinous and abandoned canal, upon the lands of the defendants, to their injury? This is the question which arises upon the state of facts found by the district court. And we think it must be answered in the negative.

By the construction of the canal, and. the appropriation of Shaker creek as one of its feeders, the low lands of the plaintiff were relieved from the natural burden imposed on them by the waters of that sluggish stream. But the benefit which the plaintiff thus obtained, was incidental merely to the right of the state (or of the canal company, to whose rights she succeeded by transfer), to construct the canal and appropriate the creek; and arose solely from the exercise of such right by the proper state authority. The state, however, has long since abandoned this structure for all the purposes of a canal. It has been in a ruinous condition ever since the breach occurred in 1847, or 1848, by which the waters of Shaker creek were thrown, on the lands of the defendants. No attempt has been made to pass a boat through it since 1850. And by the act of March 11,1853, the board of public works was directed to make no further expenditure in its repair. Having been thus abandoned, the easement which the state had acquired in the lands over which it passed, thereupon terminated. And as she no longer needed, or used, the waters of Shaker creek for canal purposes, she would *have no equitable right to keep up the canal embankment, for the mere purpose of diverting that creek from its natural course, or channel, to the damage of individual property. It is certain the state claims no such right. On the contrary, by the act just referred to, the board of public works was expressly authorized to turn Shaker creek into its original channel, if, in tlioir opinion, justice and equity demanded the same. And by the amendatory act of April 29, 1854, the same board of public works was “ directed and empowered to authorize individuals, at their own expense, to turn Shaker creek into its original channel.” 51 Ohio L. 535; 52 Ib. 69.

By this legislation, the state has, at least, disclaimed all right, on her part, longer to obstruct the flow of this creek in its natural channel. Under these circumstances, it would seem equitable, that, as against each other, the parties in this controversy should, as far as practicable, be remitted to their rights as they existed before the construction of the canal. The benefit which the plaintiff derived from this structure, so long as the public use continued, he was entitled to enjoy; but when the public use and public rights in the premises wholly cease, and the embankments become a nuisance, seriously damaging the property of his neighbors, the plaintiff must allow it to be abated. Had this creek been valuable to the plaintiff for water-power, or other purposes, would he not have had a right, as against the defendants, to resume its enjoyment, upon the abondonment of the canal? We can not perceive how a casual breach in the canal could have given the defendants a right to insist that the creek should be thereby forever diverted from its natural channel, and its advantages bo transferred from the plaintiff to themselves. And the equity of the case must be the same, whatever be the character of the sti’eam.

We do not think the íúghts of the parties are at all affected by the fact that some of them have purchased all, or a portion, of the lands which they now own, since the construction of the canal. The rights of the pi’esent owners, so far as appears, are neither greater nor less than those of their grantors. Those lands wei’e all held, and conveyed, (if at all) subject to the contingency which has occurred.

*Nor is any such continued acquiescence shown as should prejudice the rights of the defendants. They had nothing to complain of till the breaking of the embankment in 1847 or 1848; and could take no efficient action in the matter while the canal remained in charge of the state. The legislation on the subject occun-ed in 1853 and 1854; and in 1854 the plaintiff found it necessary to file his petition to enjoin the defendants from asserting their alleged rights.

We think the provisional injunction, granted in this case, must be dissolved, and the plaintiff’s petition dismissed.

Day, White, Welch, and Brinkeriioet, JX, concurred.  