
    Emmitt v. Lee, et al.
    
      Board Public Works—Leases of surplus water and canal lands— How executed— When copies of, competent evidence.
    
    1. By virtue of sections 7659 and 7675-2, Revised Statutes, leases of surplus water of canals, and lands connected therewith, are required to be deposited in the office of the Board of Public Works, and to be recorded in a book to be provided for that purpose. Copies of such leases or records, duly certified by the president of the board, are made competent evidence by section 5245, Revised Statutes.
    2. Such leases, executed by the Board of Public Works, in the performance of the official duties of the board, are not required to be acknowledged before an officer.
    (Decided December 19, 1893.)
    
      Error to the Circuit Court of Pike count}1-.
    On the third day of August, 1889, William B. Eee, John W. Barger, James D. Corwine, Margaret H. Corwine and Keziah D. Barger, as partners under the name and style of Pee Pee Milling Company, doing business at Waverly, in Pike county, plaintiffs below, began an action against James Emmitt, defendant below, to recover possession of a small tract of land included in the lease of the surplus water of the Ohio Canal, at or near lock 44, in Pike county. The land and water right was leased by the state to James Em-mitt and David Emmitt for thirty years from May first, 1854. James Emmitt assigned all his interest in the lease, reserving the small tract of land in dispute, and he remained in possession of the reserved part from, 1854 to the commencement of this action. This lease expired on May first, 1884, and on October first, 1887, the state leased the surplus water and lands described in the former lease to the plaintiffs below, from and after May first, 1884. Having thus obtained a lease from the state for the whole tract, including the small tract so in the possession of Mr. Emmitt, the defendants began an action against him for the possession of the small tract so occupied by him, and for damages.
    Upon trial of the case to a jury, plaintiffs below, to make out their title, offered in evidence a certified copy of the lease to them from the state, dated October first, 1887. The defendant objected to the introduction of this copy as evidence, but his objection was overruled, and the copy was received, to which he excepted. A verdict was returned in favor of plaintiffs below for the possession of the small tract of land, and for $75.00 damages.
    A motion was made for a new trial, which was overruled, and exceptions taken, and judgment was entered on the verdict.
    The circuit court affirmed the judgment.
    This petition in error is filed in this court, seeking to reverse the judgment of both courts below.
    
      John A. Eylar and William D. James, for plaintiff in error.
    
      The trial court erred in overruling the objection of the plaintiff in error to the introduction of the lease of October,. 1887. 1 Greenl. Ev., Sec. 557, 569; Sections 5, 3238 and 4143, Revised Statutes.
    It is a well settled principle that a legal title is the only-title on which a suit of ejectment can be maintained, and that a deed or lease which is not executed according to law, does not convey a legal title. Section 5781, Revised Statutes; Smith's Lessees v. Hunt, 13 Ohio, 260, 68; 1 Nash,. 1202-3, 1215; Morton v. Green, 2 Neb., 79; 1 Bates’ Pl., 431; Atkinson v. Dailey, 2 Ohio, 213; Section 4106, Revised Statutes; Richardson v. Bates, 8 Ohio St., 257; Martindale on Conveyance, p. 224, Sec. 250; Lessees of Foster v. Dennison, 9 Ohio, 121.
    The law makes no distinction between corporations, quasi' corporations, and individuals, as to the manner of executing-leases. Martindale on Conveyances, Sec. 253, p. 22; Atkinson v. Dailey, supra; Williams on Real Estate and Conveyances, p. 393; 6 Page, 60; Ames and Angell on Corporations, Sec. 193; Dillion on Mun. Corp., Sec. 580, p. 57, N. S.; Kelly v. Calhoun, 95 U. S. 710; Morrill. Montgomery, 25 Mich., 73; Phillips v. Coffee, 17 Ill., 154; Sawyer v. Cox,. 63 Ill., 133; Minors Ditch Co. v. Zallerbach, 37 Col., 643.
    
      John T. Moore and John W. Washburn, for defendants' in error.
    Did the common pleas err in premitting the lease of 1887 to go to the jury?
    The lease, though apparantly a conveyance, is really a license in writing to use so much surplus water and so much land for any period not exceeding thirty years from May 1, 1854, unless sooner revoked. So, though it is called a lease in the statute, it means “license,” a license to use, exclusively, and the law does not require that it should be either acknowledged or recorded.
    It is insisted by plaintiff in error that the law does not require these water leases to be deposited in the office of the board of public works, and hence, that the attestation of the president of the board does not make the lease competent, nor bring it within the statute. Sec. 5245.
    The law does require all leases in which the state is interested to be deposited in the office of the board. The president must furnish the auditor of state with attested copies of all leases of water power, and to each collector of tolls an attested copy of such lease, or any lease, the tolls of which are to be taken by such collector. Revised Statutes, Sec. 7659.
    All leases in which the state has an interest are to be recorded in the office of the board of public works. Revised Statutes, 7675-2.
    Plaintiff in error admitted in open court that the certificate to said lease was signed by the president of the board, in due form, and authenticated by the seal of said board.
    Thus, it appears, the lease was found in the proper depositary, was properly certified and attested as admitted by plaintiff in error, and there was no error in permitting it to go to the jury. ■
   Burket, J.

The plaintiff in error relies on four alleged errors for the reversal of the judgments; only one of which is deemed worthy of notice here.

It is claimed that the court erred in allowing plaintiffs below to introduce the copy of the lease of October 1, 1887, to the jury as evidence to support their title.

The copy of the lease was duly certified by the president of the board of public works, under the seal of the board, and the objection is based upon the mistaken notion, that there is no statute, authorizing such leases to be deposited or recorded in the office of the board of public works.

Section two of the act of February 8, 1847, now section 7675-2, Revised Statutes, provides:

“That all leases deposited in the office of the board of public works, in which the state is interested, shall be recorded in suitable books to be provided for that purpose.”

Sections 7659 and 7775, authorize the board of public works to lease the surplus water of the canals and state lands connected therewith; and there being no requirement or authority for the deposit of the leases elsewhere, and the president of the board being required by section 7659, to furnish to the auditor of state attested copies of all such leases, and being also required to furnish attested copies of such leases to that collector of tolls whose duty it is to collect the tolls provided for in the lease, it follows that such leases must necessarily remain on deposit in the office of the board of public works. And being deposited in the office of the board, they are required to be recorded'in the record of the board kept for that purpose.

The certificate of the president of the board, attached to the copy of the lease in question, shows that the copy is from the original lease on file in the office of the board, and recorded in the record of the board.

Such a copy is clearly within the provisions of section 5245, Revised Statutes, and is competent evidence.

Another and further objection is made to the competency of this lease as evidence, based on the ground that the officer who signed the lease, on the part of the state, did not also acknowledge the same before a justice of the peace, or other officer, as is required in the execution of deeds by private individuals.

■ This objection is not wTell taken. There is no statute requiring state officers to acknowledge deeds and other like instruments by them executed, in the performance of their official duties. And no good reason can be given, why a state officer should go before a justice of the peace or notary public, and make an acknowledgment to the effect that he has-performed his official duties voluntarily. The uniform course of business has been for the board of public works to execute such leases without acknowledgment, and we think such course is fully warranted by law.

The plaintiff in error cites, and relies upon, the case of Atkinson v. Dailey, 2 Ohio, 213, to show that the lease of 1887 was invalid for want of an acknowledgment.

The lease in question in that case was made bjr the trustees of an original surveyed township.

The act authorizing the trustees to make the lease, required that the lease should be recorded by the county recorder, and, as under the act of February 24, 1820, such lease was not entitled to record unless acknowledged, the court held that to make such lease valid it must be acknowledged by the trustees before a justice of the peace, or other officer.

While the statute, which authorized the trustees of an original surveyed township to make leases, required such leases to be recorded in the office of the county recorder, the statute authorizing the board of public works to make leases does not require such leases to be recorded in the county recorder’s office, but requires them to be recorded in the office of the board of public works.

It is, therefore, plain that the statutory provisions and considerations which induced the decision in Atkinson v. Dailey, cannot be made applicable to this case.

The other three alleged errors are not well taken, and are so well settled against the plaintiff in error by other cases, as not to require any report here. The judgment of the circuit court is therefore

. Affirmed.  