
    Rollin B. Hubbard v. The City of Toledo.
    1. Tbe execution of tbe grant, pursuant to tbe act of March 20,1864, “to authorize the city of Toledo to enter and occupy a part of the Miami and Eire Canal as a public highway and for sewerage and water purposes,” was an abandonment by the State of that part of her public canals known as the Manhatten Branch.
    2. The obstruction of a navigable stream cannot be maintained to promote private interests. Hence, when the State abandoned the Manhatten Branch Canal the aqueduct, a part thereof, spanning and obstructing Swan creek, which is a navigable stream, became a common nuisance, to abate which any riparian proprietor injured thereby had the legal right to invoke judicial proceedings.
    3. The judicial assertion of a legal right, at the request of a third party, does not, in general, oreate a liability against such party to answer for the resulting consequences. Hence, the fact that, after the abandonment by the State of the Manhatten Branch Canal, such riparian proprietor “ at the request of the city of Toledo,” procured the judicial condemnation, and abatement of the aqueduct, part of said canal, spanning and obstructing the navigable channel of Swan creek, did not make the city liable for the consequences to the owners of mills propelled by water drawn through said aqueduct.
    4. The abandonment of her public canals by the State, creates no liability on her part to respond in damages resulting therefrom to parties holding leases of “ surplus water,” under the act of March 23, 1840, “ to provide for the protection o*f the canals of the State of Ohio, the regulation of the navigation thereof, and the collection of tolls.”
    5. By the act of March 20th, 1864, under which the Manhatten Branch Canal' was abandoned to the city of Toledo, a liability for such resulting damages only as would constitute a legal demand against the .State, Was cast upon the city; in which class of damages the plaintiff's demand is not included-
    Error to the court of common pleas of Lucas county. Reserved in the district court.
    The original action was-brought by Hubbard against the city of Toledo to recover damages resulting to' him by the vacation of that part of the Wabash aud Erie Canal known as the Manhatten Branch.
    . The questions presented in the cáse arise on the pleadings. The common pleas having overruled a demurrer to the reply, the defendant’s counsel insisted, that, conceding the issues made to be established, judgment should, nevertheless, be entered for the city. The common pleas, concurring in this view, entered judgment on the merits, for the city, without the introduction of evidence. To reverse this judgment a petition in error was filed in the distl’ict court, and therein reserved to this court for decision.
    The record discloses the following facts :
    The city of Toledo was traversed by the Manhatten Branch •of the Miami and Erie Canal, the waters of which were carried over Swan creek, a navigable stream, by an aqueduct spanning its channel, and debouched through lock No. 2. The plaintiff in error owned valuble flouring mills, propelled by the surplus water not required for navigation, taken from the upper level of the lock under a thirty years renewable lease from the State, executed in 1842, by the canal commissioners, pursuant to the act of March 23d. 1840, “ to provide for the protection of the canals of the State, the regulation of the navigation thereof, and for the collection of tolls.” (Stat. of 1841, p. 174)
    On the 26th March, 1864, the legislature passed “ an act to authorize the city of Toledo to enter upon and occupy a part of the Miami and Erie Canal as a public highway, and for sewerage and water purposes,” in pursuance of which, the city council having first performed the conditions precedent thereto, the governor, on the 20th day of February, 1868, executed'to the city the formal grant of said Manhattan Branch, for the purposes in the act mentioned, and subject to the liabilities thereby imposed. Among other things, the act provides “that the grant shall be subject to all outstanding rights or claims, if any, with which it may conflict; * * * that the said city shall be liable for all damages that may accrue from the vacation of said canal; but it is not intended hereby to release the lessees of said canal, or their assigns, from any responsibilities imposed upon them by an act to provide for the leasing of the public works, 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 enter upon and occupy said grant; ” * * * and “that the city council of said city * * shall deposit with the governora written release, executed by the lessees of the public works, relinquishing any rights they may have in that part of said canal; or a bond duly executed, and to the satisfaction of the governor, indemnifying the State from all liabilities and damages which may result from said vacation
    
    On the same day on which the grant was executed by the governor, the plaintiff in error, and others, obtained, in the Lucas common pleas, a provisional injunction against the city of Toledo, the lessees of the public works, and the board of public works, restraining them from removing the aqueduct, or interfering in any manner with the flow of water to the plaintiffs’ mills, “ due under said lease.” Subsequently this injunction was dissolved, on demurrer, the petition dismissed, and the cause carried by appeal into the district court, wherein it was reserved to be disposed of here in connection with the present case.
    Pending this injunction, Peter Lenk, claiming to be injured by the maintenance of the aqueduct across, and to the obstruction of, a navigable stream, obtained a judgment and order of the Lucas c'ommon pleas, under which the same was, by the sheriff of the county, abated and removed as a common nuisance.
    Afterwards, on the 18th of October, 1869, this aetion, now here on error, was brought by the plaintiff in error against the city of Toledo, to recover, as “ damages” alleged to have “ accrued from the vacation of said canal,” and the consequent abatement of said aqueduct, the value of plaintiff’s mills and water rights, it being averred, among other things, that the suit of Lenk was instituted “ at the request of said city.”
    The city of Toledo answered, traversing the plaintiff’s right, and then pleaded specially the terms and conditions of the lease; that Swan creek is a navigable stream, the obstruction of which, by the maintenance of the aqueduct, was forbidden by the ordinance of July 13, 1787, for the government of the Territory of the United States northwest of the river Ohio ; and. that the State of Ohio had wholly abandoned the Manhattan canal, and the aqueduct part thereof, and ceased to have any interest therein after the grant thereof to the city.
    The reply traverses the matter of the answer, except the allegations setting forth the terms of the plaintiff’s lease, the execution of the grant to the city, and that Swan creek is a stream navigable in fact, the navigation of which was obstructed by the maintenance of the aqueduct.
    
      M. R. & Ii. Waite and (Maries Pratt for plaintiff in error:
    It is not, and never has been, conceded by us that the city is liable only for such damages as the State would be legally bound to pay upon the unconditional abandonment of this canal. On the contrary, we claim that by the acceptance of the grant under the provisions of the act which authorized it to be made, the city became liable for the payment of all damages that accrued from the vacation.
    The question, is not what the State might do, but what it has done; not whether the State could abandon or vacate without provision for the payment of any damages that might thereby be cast upon the plaintiff, but whether it has so done.
    The statute and the conveyance executed by the governor expressly made the grant subject to all outstanding rights and claims with which it might conflict, (sec. 1,) and upon the condition that the city should be liable for all damages that might accrue from the vacation, (sec. 2). In addition to this liability, thus directly imposed on the city, a bond was required indemnifying the State from all liabilities and damages which might result from the vacation, (sec. 3). In the first place a direct liability to the parties injured was created, and then an indemnity demanded for the protection of the State.
    The State had the undoubted right to make these conditions a part of the grant, and if it has so done, the city, by the very act of acceptance, has assumed all the obligations contained in the conditions.
    1. The State has done so.- The payment of damages was one of the conditions of the grant. The intention of the legislature to protect the plaintiff is apparent. The State having the right to abandon without a grant to the city, and without incurring any liability, if it refused to abandon and refused to grant, except upon condition that the city should become liable for all damages, it is clear that it must have been the intention to charge the city with the protection of all parties against loss, as a consideration for the grant.
    2. The acceptance of the grant bound the city for the payment of all damages which were provided for by its conditions.
    The act provided (sec. S') that the grant should be made, and it was in fact made, “upon the terms and conditions specified in the act.” One of these conditions was that the city should be liable for all damages that might accrue from the vacation of the canal.
    See Thompson v. Thompson, 4 Ohio St. 349 ; Finley v. Simpson, 2 Zab. 311; Burr v. Beers, 24 N. Y. 178, 180.
    Here, the payment of the damages asked for, is the only consideration for the grant, which has been accepted, and the liability for their payment is not only to be “implied from the nature of the transaction,” but it is expressly declared by the statute itself to be one of the consequences of the acceptance of the grant. It was one of the “ conditions,” of the grant to and accepted by the city. This acceptance upon this condition creates a promise to the State for the benefit of the plaintiff.
    3. The fact that the State by its unconditional abandonment of the canal might not have made itself liable for the payment of these damages, does not relieve the city.
    As between the State and the plaintiff the city could not have interfered with the rights of the plaintiff. The propriety of the abandonment rested with the State alone. As against the state, previous to any abandonment, the plaintiff could insist upon the supply of water, notwithstanding such supply would result to the serious inconvenience or disadvantage of the city. When the State granted to the city the privilege of occupying the ground on which the canal was constructed, it made the grant subject to the prior right of the plaintiff to insist upon his supply of water, and it did not transfer to the city any discretion to abandon to the injury of the plaintiff. The effect of the transaction was to exact of the city a covenant — a legal obligation — to supply the water, or pay the plaintiff the damages he might sustain by its loss. The right granted to the city to abandon was only to be exercised after the rights of the plaintiff had been extinguished. If it abandons before, it must respond in damages.
    It must be borne in mind, that the grant did not vacate the canal. That was the act of the city after the grant. It is this act of the city, not warranted by the grant, of which we complain.
    The act does not confine the liability of the city to such damages as the State might become liable for, but for all that might accrue. The city was only authorized to abandou after the rights of the plaintiff, which were expressly saved by the grant, had been extinguished. If it abandoned before, it was guilty of a wrongful interference with the rights of the plaintiff, for which it must answer in damages to the plaintiff as the party injured.
    4. The city cannot protect itself by the decree of the court directing a removal of the aqueduct, because, for all the purposes of this hearing, we are to remember that this decree was obtained by Lenk at the request of the City. The decree, therefore becomes, not the act of this court in an adversary proceeding against the city, but the act of the city, to avoid, if possible, the injunction which was then in force.
    We have thus far considered the case as though the power of the State to vacate the canal without liability to the plaintiff, had been conceded.
    The case of the Trustees of the W. & E. Canal v. Brett and others, 25 Ind. 410, does indeed decide that the State would not be liable upon a lease of this kind for a mere non-feasance in neglecting to keep the canal in repair, so that the water could flow to the mills of the plaintiff; but on page 412 a distinction between a "misfeasance” and a mere “ non-feasance” is expressly recognized.
    In this case, the canal has been vacated by the act of the eiiy as the grantee of the State. Water cannot be carried through it to the mill of the plaintiff. There is no power in any one to repair, so as to supply the water. If the loss had resulted from the simple omission of the State to repair, and the canal had remained, the plaintiff might have repaired and thus enjoyed the benefit of his lease. But when the canal is gone, all is gone so far as the plaintiff’s rights are concerned.
    
      Charles Kent and B. W. Mouse for defendant in error, and for defendants in the injunction case :
    1. The State government was not organized for the purpose of running grist mills ; but, among other purposes, to develop the resources of the State by constructing means-of internal communication such as canals and turnpikes, and the transportation of its produce to market. For this purpose it has exercised and authorized the exercise of the power of eminent domain, but not for the purpose of building grist mills or running or supplying them with water, either for profit or convenience. If, however, the State, in order to construct a navigable canal, — a recognized public use, — should condemn and take not only the land to put it upon, but also the water to fill and run it with, by depriving private riparian owners of their right to use it on their own premises, and in so doing, in order to always have a supply for navigation, should sometimes have a surplus which otherwise might run to waste, we admit that that surplus might be sold or leased for the benefit of the State. But it is,, however, only an incident to the main purpose — the navigation of the canal. Primarily the State would not have had' the right to condemn land to put a mill-race upon, nor to> deprive riparian owners of their mill sites to sell or lease the water to run other people’s mills. Cooper et al. v Williams, 4 Ohio, 253 ; Same v. Same, 5 Ohio, 393 ; Buckingham et at v. Smith & Dille, 10 Ohio, 288. If a man buys or leases the incident, it lasts so long as the thing lasts to which it is incident and no longer, unless there is some binding contract that it shall last longer. We submit further, if the State primarily had not the right, by exercise of its eminent domain or by expenditure of the people’s money collected in taxes, to build canals for the purpose of supplying mills with water, that neither would it have the right so to continue a canal once built for the public use of navigation, but which had become useless for that purpose and no longer subserved the public use for which it had been constructed.
    2. The plaintiff, under and by virtue of the lease, is not entitled to damages for the vacation of the Manhattan Branch of the Miami and Erie Canal.
    The lease is between the State and the assignors of the plaintiff. If in the grant by the State to the city and the vacation of the canal, the covenants of the lease have been broken, it has been done by the State, and under section 3 of the act of March 26th, 1864, the city of Toledo has given bond indemnifying the State from all liabilities and damages which may result from such vacation. The city took the place of the State. Whatever damages the State was liable for by reason of vacating the canal, that, and that alone, was the city of Toledo bound to pay; neither more nor less, nor otherwise.
    The lease was made by the board of public works, under the act of March 23, 1840, (Laws of 1841, p. 174), sections 20, 21, 22, 23, and is governed by them.
    The lease conveyed only so much of the “ surplus water in the canal, over and above the quantity of water which might be required for the purpose of navigation,” (Sec. 20) as was needed to propel the machinery to run four four and one-half feet millstones.
    “ No hydraulic power, nor right to the use of any water, shall be sold, leased or conveyed ; except such as shall accrue from the surplus water of the canal — after supplying the full quantity necessary for the purposes of navigation.” Sec. 22.
    Suppose that instead of vacating the canal, it should at any time have been deemed necessary by the State to “ resume the privilege or right to use the water for the purpose of navigation, or that its use by plaintiffs should be found in any manner to interfere with or injuriously affect the navigation of the canal;” then the State had the power át any time to resume the right to use the water, and at once and forever put a stop to the supply. Sec. 23.
    The plaintiffs have erected their mills with this contingency constantly staring them in the face.
    Suppose the contingency to have happened, the water "resumed” by the State, the'consequences to them are precisely the same as if the canal were vacated and abandoned.
    What then, and who pays the damages ?
    Section 23 provides, 11 when such privilege shall be resumed, the rent reserved shall be remitted to the lessee, his heirs or assigns; ” and the lease itself provides, that if by the resumption of the water the privilege shall be destroyed, “ then the party of the second part shall be from such time absolved from all further liabilities growing out of this agreement.” See the lease. Not much damages to be paid by the State in that case.
    The use of the water may be resumed by the State at any time when necessary for the purposes of navigation, or if its use shall be found in any manner to interfere with or affect injuriously the navigation of the canal, their privilege summarily destroyed, and yet the only consequences are simply cessation of the rent, the mill on their hands, no water to propel it, and yet the State not liable for a dollar; the rent ceases — that is all; and all this by agreement.
    The board of public works have let the use of “surplus” water, but have nowhere covenanted to maintain that stage of water, that there should be a “surplus;” neither have they covenanted to maintain or keep any water whatever in the canal; nor can such a covenant be implied; nor has the State covenanted that the canal should not be abandoned, and no such covenant can be implied. The Trustees of the Wabash and Erie Canal v. Brett et al. 25 Ind. 409.
    The people of Ohio built the canals for the purposes of navigation and commerce. When the canals or any pa-rt of them cease to subserve that purpose, they can abandon them.
    The legislature of the State, in their act of March 26th, 1864, abandoned this Manhattan branch. The act of the legislature itself, if accepted by the city, was, by its own terms, an abandonment of the canal. They do not give their reasons for abandonment in the act; nor do they embody in any act their reasons for enacting any law, but every act is supposed to be founded upon good and sufficient reasons satisfactory to the legislature that passed it.
    The sufficiency of the reasons that induced the State to abandon the canal cannot be reviewed by the courts. When the legislature, by solemn act, abandon a canal, or a part of a canal, that is conclusive, and the end of the matter.
    The lease of the plaintiff entitles him simply to the use-of the “ surplus water over and above the quantity of water required “ for the purposes of navigation.” If no water is required for the purposes of navigation, then there can be no “surplus” water from which plaintiff is to be supplied.
    We hold, then, that the State in abandoning and vacating the canal has been guilty of no breach of contract, express or implied; that it is liable to no damages to plaintiff therefor; and that the defendant, the city of Toledo, standing in-place of the State, and being bound only to pay damages that may be awarded against the State, is liable to no damages in this action.
    The damages mentioned in the second section of the act mean legal damages, or those arising from a breach of some legal liability.
    The use, in the first section of the act, of the words “all outstanding rights and claims, if any f seems to be a careful avoidance of admitting that any such claim existed.
    We see no force in the effect attempted to be given to the statement that Lenk commenced the suit at the request of the city; nor in the attempted distinction between “ misfeasance” and “non-feasance.” To call the abatement of the aqueduct a “ misfeasance,” a wrongful aot, is simply begging the question.
    
      G. W. & A. 8. Hill for plaintiffs in the injunction case:
    1. Under the circumstances of this case it is peculiarly one of equity jurisdiction. From the manner and purpose of its construction, in the very nature of things, the canal was to be considered as perpetual. The officers of the State, and lessees of the public works, and the city of Toledo have stood by and seen the successive holders of this' water privilege expend large sums of money in permanent and valuable improvements which were necessary for the proper enjoyment of this lease of water power, and have, in many ways, given emphatic assurances that these owners and their assigns might rely upon the full enjoyment of their lease and a renewal thereof, at the option of the mill owners., This lease, with the right of renewal, is, in equity, property, and entitled to the protection of the courts.
    2. This water lease, with all the rights appurtenant thereto, must have been granted under the act of March 23d, 1840 (S. & C. 202). See secs. 20 and 23 of that act.
    As. to the protection due from a court of equity to the lessees, in making improvements adequate for the profitable use of all of the water leased to them, the law-makers of the State must have intended to encourage such improvements, and the agents of the State, with whom the lessees had to deal, will be held also to have encouraged such improvements, and all of them. Potter v. O. & L. Ins. Co. 5 Hill, 149; 7 Maine, 151; Story on Contracts, § 635; Jordan v. Dyer, 34 Vt. 104, 106; Chamberlain v. P. & H. R. R. Co. 15 Ohio St. 246.
    Now, keeping in mind that the State never found it necessary to resume this water-power, the following eonclu«ions, quite pertinent to this case, may be stated:
    1st. The difference between a sale in perpetuity and a lease for a term, is only colorable, with possibly no advantage in a vendee over a lessee.
    
      2d. The officers or agents of the State could not exercise the power of resumption, without refunding or remitting U the purchaser or lessee, as the case might require.
    
    3d. This statute fully recognizes outstanding rights in these plaintiffs, which no court could say were not entitled to protection as property.
    
    4th. The letter and spirit of this statute rebuke the audacious effort at-repudiation and spoliation attempted by the defendants in this case.
    5th. The reason of the rule of public policy which givesemblements to the tenant, because of uncertainty at what time his lease might be terminated (Taylor’s Landlord and Tenant, (5th ed.) § 534 ; Cassilly v. Rhodes, 12 Ohio, 88, 95, 96,) is directly applicable here. If there was uncertainty about the surplus water, and so about the duration of the lease, in the absence of admonition from the State authorities, the policy of the law would encourage the lessees to do everything towards increase, productiveness in the use of this power.
    6th. This case is within the rule of McArthur v. Kelly et al., 5 Ohio, 143, and of Foote v. Cincinnati, 11 Ohio, 408, 410, where it was held that unless the law by which property is taken for public use, provides for compensation, it is void. And in the latter case it was further held, that where property underjease is taken for public use, the tenant is entitled to compensation on his lease-hold interest, for the-loss of his use of the property for the time yet to run.
    
    3. It being clear that it was of advantage to the State and to its canal interests, to grant this water lease, and for the State and the lessees of the public works to continue it, and to induce all of these expenditures (they being necessary to the proper enjoyment of the lease by the mill owners ;) and the servitude claimed by us having been voluntarily assumed and charged upon the canal, by the authorities having control of it; and the lessor having derived benefit from the existence of the lease, and the city now being privy in estate, it results that the defendants must abide by, and cannot be permitted to repudiate the rights thus secured to the plaintiffs. Lampman v. Milks, 21 N. Y. 505 ; Tud. Lead. Cas. 109 ; Anon. 2 Eq. Cas. Abr. 522 ; Powell v. Thomas, 6 Hare, 300 ; Devonshire v. Eglin, 14 Beav. 530 ; Parker v. Nightingale, 6 Allen, 341; Hubbell v. Warren, 8 Allen, 173; Gilbert v. Peterler, 38 Barb. 488, 514; Tulk v. Moxhay, 11 Beav. 571.
    We cite the following cases as showing equitable relief m favor of the owner of the dominant estate, some of which apply by analogy, and others are more directly in point. Mann v. Stephens, 15 Simons (Eng. Ch.), 377 ; Hills v. Miller, 3 Paige, 254 ; Seymour v. McDonald, 4 Sandf. Ch. 502; Clark v. Martin, 49 Penn St. 289.; Tallmadge v. East River Bank, 26 N. Y. 105 ; Morgan v. Mason, 20 Ohio, 401; Elliot v. Salee, 14 Ohio St. 10 ; Easter v. L. M. R. R. Co., 14 Ohio St. 48; Belknap v. Trimble, 3 Paige Ch. 577 ; Delaney v. Boston, 2 Harringt. 489 ; Devonshire v. Elgin, 7 E. L. & E. 39 ; Mabel v. Matteson, 17 Wis. 1, 8, 9 ; Beaston v. Weate, 5 Ellis & B. 986 (34 E. L. & E. 133.)
    The uses of the canal line as connected with plaintiff’s water power, attached peculiar qualities to the land granted to the city ; they were palpable and manifest; and the city took the lands subject to the burdens annexed ; and the defendants, by act or consent, could not adversely interfere with the plaintiff’s rights. Sibert v. Levan, 8 Penn. St. 383 ; Phillipps v. Phillipps, 48 Penn. St. 178 ; Washburne on Eas. & Serv. 380, 381 (2d ed.).
    It matters not whether the water course be natural or artificial, or whether the right is derived from nature, or by grant or prescription. Carey v. Daniels, 5 Metc. 236, 238 ; Crittenton v. Alger, 11 Metc. 284 ; Ashley v. Ashley, 6 Cush. 70.
    The construction of the canal was not for a temporary purpose, neither was the supplying of it with water; but both were intended to be permanent. (Land grant of May 2, 1827, by Congress, for this canal.) The facts show a plain case of the permanence and abundance of the power exclusively owned by plaintiffs. Washburne on Eas, & 
      Serv. 366, 368, 377, 386, 387; Wood v. Waud, 3 Exch. 748, 777 ; Norton v. Valentine, 14 Vt. 239.
    The bad faith of the defendants is manifest. 27 Vt. 265 ; 14 Vt. 239 ; 17 Vt. 387 ; 14 Barb. 460 ; 7 E. L. & E. 39 ; Hatch v. C. & I. R. R. Co., 18 Ohio St. 122; Goodin v. Evans, Ib. 198 ; Goodin v. C. & W. Canal Co., Ib. 169.
    The property granted to the city by the State must go to the grantee in the condition in which it was placed by the State, and with the qualities and subject to the service attached to it by the State. Gale and Whately on Eas. 40 ; Kieffer v. Imhoff, 26 Penn. St. 438, 442.
    For a test of the rights of the plaintiffs, see Prescott v. White, 21 Pick. 341; Darlington v. Painter, 7 Penn. St. 473; Kauffman v. Griesemere, 26 Penn. St. 407, 413; Prescott v. Williams, 5 Metc. 429.
    5. There are numerous statutory recognitions of plaintiffs’ rights of property accrued from their water lease. S. & C. 1859, sec. 114; S. & S. 61, secs. 2, 5 ; S. & S. 65, 66, sec. 12.
    The grant to the city was for public uses — “for public highway,” “water pipes,” and “sewerages purposes.” But when did the act (as construed through the medium of the constitutional provisions relating to taking private property for public uses) intend that the aqueduct might be removed ? When might the city take possession and end the-water power? We say, not until plaintiffs’ rights were either purchased or appropriated. They were to be paid for by the city as a condition precedent to the right of the city to use or destroy them. Sec. 1 and 2 of the act. The legislature could not grant the right to destroy the water power, by removing the aquedtict, before compensation be paid to the plaintiffs.
    As to the scope of the damages. They are not measured by the 23d section of the act of March 28, 1840, (S. & C. 206). The city is required to pay “ all damages,” and As liability is as broad as if it had appropriated part of the plaintiffs’ headrace and all of the water flowing into it, for city water works, under the law as it stood before this act granting the canal to the city was passed. So we under stand the following authorities: Hatch v. Vt. Cent. R. R. 25 Vt. 49, 66, 69 ; Robb v. M. & Mt. S. T. R. Co. 3 Metc. (Ky.) 117 ; Henry v. D. & P. R. R. Co. 2 Clark (Iowa), 308; Street Railroad v. Cumminsville, 14 Ohio St. 523, 546, 550. C. & I. R. R. v. Zinn, 19 Ohio St. 417.
    6. The grant to the city was, by express condition in the act, “subject” to this very estate in the plaintiffs. The act does not leave the duty or liability of the city open to implication. The requirement is express and must be obeyed. Thompson v. Thompson, 4 Ohio St. 333; Crumbaugh v. Kugler, 3 Ohio St. 549 ; Cumberland v. Codington, 3 J. C. R. 254.
    7. Though relief by injunction has failed, according to the usage of courts of equity, the case is to go on until such, practicable relief as plaintiffs are entitled to is secured ; be it legal, or equitable. Code § 603 ; Kershaw v. Thompson, 4 J. C. R. 609 ; Oliver v. Pray, 4 Ohio, 175 (coud. 772) ; Darst v. Brockway, 11 Ohio, 471; Grant v. Ludlow, 8 Ohio, St. 24; Chapman et al v. M. R. & L. E. R. R. Co. 6 Ohio St. 119, 139.
   West, J.

In view of the magnitude of the private interests which this opinion may affect, not only in its immediate consequences, but in the future history and disposition of the public canals, we have given to the questions arising upon this record, which it is deemed necessary to pass upon, the most careful consideration.

The liability of the city to respond in damages to the plaintiffs, if any such liability exists, arises either independly of, or else under the statute of March 26th, 1864, authorizing the grant to it of the Manhattan Branch Canal; which propositions will be considered in their order.

I. Does such liability exist independently of the statute ?

(1.) It is admitted that Swan ci-eek is a stream navigable in fact, and that the aqueduct spanning its channel obstructed its navigation. Conceding that this obstruction might have been maintained by the sovereignty of the State, to promote her system of public works, the question assumes a widely different phase when the obstruction ceases to subserve any public purpose, and the work is abandoned. The obstruction of a navigable stream cannot be maintained to promote private interests.

The record shows that the aqueduct over Swan creek was judicially condemned as a nuisance, and impediment to the navigation thereof, and was abated under the order and process of a competent court, at the suit of Peter Lenk, after the grant of the Manhattan Canal to the city of Toledo was executed. It is alleged, however, that Mr. Lenk proceeded “ at-the request of the city,” and, hence, that it became liable, as a coadjutor of Lenk, for the injuries resulting from his act to the plaintiff’s mill. This claim would have much plausibility, if it appeared that Mr. Lenk proceeded without interest or legal right. But if the right existed in him to invoke judicial process against the aqueduct, his assertion of it was not wrongful, though at the request of the city. That Mr. Lenk had such legal right must, in the absence of any averment to the contrary, be presumed; for it was enforced by judgment and final process, and must, therefore, have been judicially found to exist. The fact was, that Mr. Lenk was a riparian proprietor immediately above said aqueduct, whose wharfage interests were injuriously affected by its obstructing navigation, and hence his right. And where a legal right exists in one, its judicial and orderly assertion, though at the request of another, creates no liability against either.

But was the common pleas justified in condemning and abating the aqueduct ? This depended on whether it had been abandoned by the State as a part of the public canals, and the protection of her sovereignty had been withdrawn therefrom.

In our opinion, these had both occurred. The grant by the State to the city of Toledo was an abandonment of the canal covered by it. The statute authorizing the grant denominated it “the vacation of said canal” which imports, and, when the authority was carried into grant, it. became an abandonment in fact. The continuance of the aqueduct could thereafter subserve only private interests. But as it could not be rightly maintained to promote these alone, the action of the common pleas in condemning and abating it was proper. We are, therefore, clear in the opinion, that no liability arose or exists against the city consequent upon the abandonment of the Manhattan Canal, and the demolition of said aqueduct, unless it be imposed by the statute authorizing the grant.

II. Are the plaintiffs entitled to recover against the city, under the provisions of the statute, and the condition upon which the grant was made ? The statute enacts that the grant “ shall be subject to all outstanding rights and claims, if any, with which it may conflict,” and “that the city shall be liable for all damages which may accrue from the vacation of said canal.” What were the rights intended to be protected ; and, for injuries, was a liability cast upon the city ?

The liability of the city is restricted to those rights and subjects for an injury to which, resulting from the abandonment of the canal, a legal demand would accrue against the State ; or it extends to and includes other rights and subjects for the destruction of or injury to which a legal demand would not accrue against the State. These two classes of liabilities will next be considered.

Assuming, then, that the responsibility of the city was intended to be substituted for that of the State, and that a liability for such consequences only as would create a legal claim for damages against the latter was intended to be cast upon the former, the inquiry arises — had the plaintiffs any “ rights ” with which the abandonment of the canal con flicted ; or did a legal demand for damages accrue to them against the State, for any of its resulting consequences ?

The affirmative of these propositions is not seriously insisted on by the plaintiffs’ counsel ; nor could it be maintained, if it were. True, the period stipulated for the duration of their lease has not expired ; but the instrument or lease was a mere license to them to take, not an obligation on the part of the State to furnish. They were authorized to withdraw and use the “surplus water” which might be incident to the operation of the canal, but the State was not bound to create such surplus. Their lease contained no covenants to repair, nor stipulation to maintain, nor obligation to operate the canal, nor any agreement to supply power to the plaintiffs’ mill. On the contrary, authority was expressly reserved to terminate the license and “resume at any time the right or privilege to the use of the water or any portion thereof, whenever it might be deemed necessary for tn . uuposes of navigation,” &c., without other convey.ance to the State than an obligation on her part to remit a suitable proportion of the reserved rent subsequently accruing ; or in case of a permanent resumption, totally destroying the value of the privilege, “ to absolve the plaintiffs from all further liability under the agreement.”

The provisions of the statute of March 23, 1840, under which the plaintiffs’ lease was granted, are as follows :

“ Sec. 20. Whenever in the opinion of the board of pub lie works there shall be surplus water in either of the canals, or in the feeders or at the dams erected for the purpose of supplying either of said canals with water, or for the purpose of improving the navigation of any river, and constructed at the expense of the State, over and above the quantity of water which may be required for the purpose ■of navigation, the said commissioner may order such surplus water, and any lands granted to, or purchased by the State for the purpose of using the same, or such part thereof as they may deem expedient, to be sold for hydraulic purposes, .subject to such conditions and reservations as they may consider necessary and proper, either in perpetuity, or for a limited number of years, for a certain annual rent or otherwise, as they may deem most beneficial for the interests of the State.
“ Sec. 21. The provisions of the foregoing section shall extend to and include the water passing around locks from one level to another, on either of the canals of this State.
“ Sec. 22. No hydraulic power, nor right to the use of any water, shall be sold, leased or conveyed, except such aa shall accrue from the surplus water of the canal, feeders or dams, or from the water passing round any lock, after supplying the full quantity necessary for the purposes of navigation.
“ Sec. 23. Every lease, grant or conveyance of water power, shall contain a reservation and condition that the-State or its authorized agents may at any time resume the privilege or right to the use of water, or any portion thereof,, whenever it may be deemed necessary for the purpose of navigation, or whenever its use for hydraulic purposes shall-be found in any manner to interfere with and. injuriously affect the navigation of either of the canals, feeders or streams: from which the water shall be taken for such hydraulic purposes ; and whenever such privilege shall be resumed, in whole or in part, the sum paid therefor, or the rent reserved,, or such reasonable portion thereof as shall be determined, upon, agreeably to the conditions and stipulations of the-lease or deed of conveyance aforesaid, shall be refunded, or remitted to the purchaser or lessee, his heix-s or assigns.”

The following are the reservations coixtained in the plaintiffs’ lease: “ And the said party of the second part shall not be entitled to any deduction from the rent hereby made-payable, unless said party shall thereby be deprived of the use of the water for more thaxx one month in any oxxe year; and the party of the first paid reserves the right to resume at any time the use of the water hereby leased, whenever the same shall become necessary for the purpose of navigation, and to continue the use thereof so long as the same-shall be necessary for the purpose aforesaid. And if it shall become xiecessary for the party of the first part to resume-the use of so great a portion of the water hereby leased, or the whole thereof, for so great a portion of the time as to-defeat the object of this lease by destroying the value of the privilege (which fact shall be determined by three judicious disinterested freeholders, one to be chosen by the acting commissioner, or other authorized agent of the State, one by the party of the second part, and the third by the two-thus chosen,) then the party of the second part shall be from-such time absolved from all further liabilities growing out of this agreement.”

By the terms of this lease, and of the statute authorizing it, the accruing of a liability, on the part of the State, to respond in damages to the plaintiffs for the destruction of their privilege, by resuming the grant, was expressly negatived. But the abandonment of the canal by the State had the same effect upon their privilege as would a resumption of the grant. Since, then, the consequences of resumption and of abandonment are identical, it is incredible that a liability should arise, by implication from the latter, which, by express negation, cannot from the former. If it were otherwise, the State would be compelled to maintain her canals, at any sacrifice, for the exclusive benefit of the lessees of surplus water. This cannot' be. The creation of water power did not enter into the purpose of their construction. It was adventitious, incidental, and, therefore, necessarily precarious ; and those obtaining grants thereof must be supposed to have taken them, subject to the fluctuations of tides, and the changes of time. Hence, it seems to us to have been the obvious intention of the law, and of the lease under it, which could not exceed the authority of the law, that the privilege granted to the plaintiffs should continue for such period, not exceeding that specified, as the State might see proper to maintain and operate the canal, unless sooner terminated for some of the reasons enumerated in the statute. In this view we are sustained by the analogous case of Brett et al v. The Trustees of the Wabash & Erie Canal, 25 Ind. R. 409, in which.the consequences of abandonment, under a similar lease, were fully considered.

The result, then, is, that if, as above assumed, the liability of the city was, by the statute, restricted to and substituted for that of the State, it follows, that as no legal demand accrued to the plaintiffs against the State, they cannot recover against the city.

But it is insisted for the plaintiffs that, inasmuch as the grant to the city of Toledo, was made “ subject to all outstanding rights and claims, if any, with which it might conflict” and that “the city should be liable for all damages which might accrue from the vacation of said canal,” its liability was, by the statute, expressly enlarged and extended to cover consequences for which no legal demand could arise against the State, and that plaintiffs’ claim is of the class thus protected.

(1.) It must be supposed that the legislature, in speaking of “outstanding rights and claims ” contemplated “ rights and claims” of possible existence against the State, with which an abandonment of the canal might conflict, and for which a legal demand might be preferred against the State. But the alleged right or claim of plaintiffs, under their lease, was, as we have seen, revocable at the pleasure of the State, either by resuming the grant, or by abandoning the canal, of which their 'privilege was but an incident. Hence, as whatever rights or claims plaintiffs had under their lease might be lawfully terminated by an abandonment of the canal, such abandonment could not, in any legal sense, conflict with them. It was only rights and claims that might not be lawfully terminated by the State, with which a conflict was possible. “If any” such “rights or claims” were “ outstanding ” they were protected. "We think the plaintiffs’ lease did not vest in them such claim or right. They had a mere license, which the abandonment extinguished.

(2.) "When the statute was passed authorizing the abandonment of the canal to the city of Toledo, the lessees of the public works were in actual possession of it, under the act of May 8, 1861, and the lease executed in pursuance thereof, and by which they were empowered to hold, maintain and operate the same, and appropriate its revenues. To this extent, the body of the canal had become, for the time, the private property of the lessees, of which they could not be divested by the State, without impairing the obligations of their contract. This lease was an “ outstanding right and claim ” which could not be lawfully defeated by an act of abandonment, and with which it would necessarily conflict. To have terminated their possession arbitrarily, would have authorized the lessees to rescind the entire contract of lease, or prefer against the State a legal demand for “ damages accruing from the vacation of said canal.”

The legislature having the “rights and claims” of these lessees in view, imposed upon the city of Toledo the alternative of “ depositing with the governor” a written relinguishment by them of “ any right they might have in that part of the canal,” so vacated; or a bond * * * indemnifying the State against all liabilities and damages which might result from said vacation.”

The release and the bond thus made the alternative conditions of the grant were plainly regarded as equivalents. Either might be substituted for the other, the protection to-be afforded by each being the same, and against the same-liability.

The only “ damages ” against which the “ written release ” required could furnish a protection were those arising from an interference with the lease of the public works. But as the substitution of a bond instead of the release was authorized, it must be supposed that the “ damages ” covered by it were restricted to those arising from the same source ; for it is unreasonable that, if the bond was intended to cover-damages other and, it might be, infinitely greater than those accruing to these lessees, the legislature would have authorized their “ written release” to be substituted in its stead. Hence the term “ damages,” in this clause of the statute, must be restricted, in its sense and application, to consequences flowing from an interference with the lease of the-public works. For these, the liability of the city is, by this clause of the statute, plainly substituted for that of the State,, but is not extended to any other class of damages.

Is it extended by any other clause ? Iu another it is declared in general terms that “ the city shall be liable for all damages which may accrue from the vacation of said canal.”" It is a rule of construction that where the sense of a term in any clause of a statute is ascertained and definite, its sense in other clauses will be presumed to have been intended the-same, unless enlarged or restricted by the context, or necessarily varied to effectuate the obvious intention of the stafcute. Applying this rule, it results that the term “ damages ” having an ascertained and definite sense and application in the indemnity clause of this act, will be presumed to have been used in the same restricted sense in the other clause, neither the context nor the intention of the act requiring it to be enlarged.

This view is strengthened by the unreasonableness of supposing that the legislature intended to make the city liable •for two classes of damages, namely, those arising under the lease of the public works, and those arising otherwise, and yet exact indemnity against the former only, and not against the latter, and it might be infinitely lai'ger class. It is further strengthened by the studied omission of the statute to mention the plaintiffs’ lease as a subject matter to be protected, although it could as readily have been done as was the lease of the public works. Finally, it is confirmed by the improbability of the legislature intending, by the employment of general language, to make the city liable for consequential damages for which no legal demand could accrue against the State, and hence no motive could exist for casting it upon the city.

The conclusion reached is, that the statute cannot be enlarged, by construction, to relieve the plaintiffs, unless the clause “ all damages which may accrue from the vacation of said canal,” be held synonymous with all losses or diminution of value occasioned thereby. If this door were opened, the depreciations of riparian and adjacent values of no kind, speculative or substantive, could be excluded. No reason exists for extending protection to mills, which might not be urged in favor of commission and warehouses, and all other adjacent investments. A burden of infinite magnitude might thus be fastened upon the city, which it is impossible to suppose was intended as the consequence of abandoning a useless, valueless, public work.

The judgment of the common pleas is affirmed.

Welch, C. J., and White, Dat and McIlvaine, JJ., concurred.  