
    *Bradley Buckingham, John Van Buskirk, and William Van Buskirk v. Smith and Dille.
    The canal commissioners are authorized by law to take water enough from a stream for canal navigation, but not for the purpose of creating hydraulic power to sell or lease on behalf of the state.
    An acquiescence, in order to raise the presumption of a license to use a stream of water, must be with a knowledge of the owner’s rights.
    This is a bill in chancery from the county of Licking.
    It is stated, in the bill of complaint, that, in 1830, the canal commissioners constructed a feeder to the main canal, to be used for the purpose of taking water out of the north fork of the Licking river.
    The feeder was so constructed, as to be capable of drawing out of said north fork, at the point of intersection, more water than was required for canal navigation. Before, and at the time, the feeder was constructing, the complainants, John and William Yan Buskirk, were the owners of a certain grist and saw-mill, on said north fork, and near the site of the present *mills of the [289 complainants. The mills of the said Yan Buskirks were rendered useless by' the construction of the feeder, and the acting canal commissioner estimated the value of the mills, and fifty acres of land attached thereto, at $>5,000, and agreed that he would endeavor to make sale of the surplus water, near the mills of said Yan Buskirks, with the land so attached, and would pay them 15,500, but no such sale was over made.
    That, in the fall of 1831, the acting commissioner entered into a verbal contract with the Yan Buskirks, to lease them the surplus water, and tho lease was executed in May, 1832. That the complainant, Buckingham, in January, 1832, became interested in the mill property, by purchase, and relying on tho contract with the commissioner for the use of so much water as would safely flow through the feeder, without injury to it, subject to the rights of the state, in March, before the execution of the lease, commenced the erection of a valuable flouring mill, to be worked by four run of stones, and while the mill was in the progress of erection, the said lease was executed.
    It is further stated, that from the execution of tho lease, up to 1836, when certain pretensions were set up by the respondents, the complainants fully believed the state had the right to draw into tho feeder as much water as would safely flow therein; and they fully believed, and still believe, that so much water was rented them by the lease, subject only to the rights of the state to the use thereof, if the same should bo wanted for the purposes of canal navigation.
    That when the complainants commenced erecting their mill, there was and had been, up to that period, no mill nor water improvements between the jflace where the old mill of the Van Buskirks stood, near where the complainants’ grist mill was built, and the place where tho feeder intersected the said north fork,
    
      
    
    
      on the said stream. That tho flouring mill, and a saw-mill erected in 1833, were begun and completed by the complainants, with the knowledge, acquiescence, and approbation of the intermediate riparian proprietors. That such proprietors stood by and saw tho complainants expend their money, *to the amount of $10,000 [290 or $12,000, without objection, or notice of any conflicting rights, but with the aid of some of them.
    It is further stated, that a tract of land of fifteen acres lay immediately above the complainants’ mills, on the said fork, owned by Peter Schmueker; and immediately above him, another tract) owned by the heirs of Jacob Willson. That Schmueker acquiesced in and approved the use the complainants made of the water, and the same mot the approbation of Willson’s heirs; that one of them worked on the mill, and they were all present at the raising, and assisted in the erection of the flouring mill. That after the flouring mill was in operation, the Willsons obtained of Schmueker a conveyance of the fifteen acres, and then, for the first time, conceived the idea of uniting it with their own tract, erecting a dam on their own, and carrying a race down into the Schmueker tract, and creating a small water-power, sufficient to work a saw mill for a part of the season, on the said fork, between the head of the feeder and where tho water is turned into the fork from the mill of the complainants. That the said Willsons built a saw-mill, and occupied it about two years; and in August, 1835, sold to the respondents, Smith and Dille, who bought it for the purpose of vexing and harassing the complainants with litigation, and to obtain from them a ruinous and oppressive compromise.
    That the respondents have commenced an action against the complainants for the use of the water, which is pending in tho Supreme Court for the county of Licking. That for more than twenty-one years previous to the commencement of said suit, tho dam of the said Yan Buskirks flowed the water back over the site of the respondents’ mill, and the complainants thereby acquired a right so to use and flow the water.
    ■The"payer of the bill is, that the said action of the respondents may be enjoined, and the complainants quieted against any conflicting claims set up by the respondents to the use of the water, so appropriated or hereafter to be appropriated, by the complainants to the propelling of their said mills, and for other relief.
    *The defendants have answered, and among other things, [291 admit the construction of the feeder, with sufficient capacity to take more water from the stream than is necessary for canal navigation; they admit the existence of the mills of' the Yan Bus-kirks, as stated in the bill, but they deny tnat they were rendered useless, by the construction of the feeder, and drawing off only sufficient water for canal navigation, but assert they would have sustained only a trifling injury thereby, if they wore before worth improving. They know nothing of any contract made by the Yan Buskirks with Alfred Kelly, acting canal commissioner, but heard that about that time, he, as such commissioner, claimed the right of drawing from the stream what water ho pleased, through the feeder, and for the purpose of creating hydraulic power to sell or lease, for the benefit of the state, as well as for the uses of the canal. They believe, at that time, the opinion was prevalent that such authority was vested in the commissioner, but that it had its origin in ignorance of the law upon that subject; that if the commissioner, at any time, entertained such opinion, he became better informed before ho executed the lease, and distinctly informed the complainants, if they would guard against conflicting claims, they must purchase in the rights of the intermediate riparian proprietors, and that he could not guaranty to them any quantity of water whatever. The defendants deny any knowledge of any acquiescence in the intermediate proprietors, of the rights assumed by the complainants, to the use of the water, under their lease; or of their approbation in the erection of said mills. They admit the purchase of Sehmucker by the Willsons, and that one of the Willsons worked upon the mill, but assert that it was before the saw-mill was propelled by water drawn from the feeder, and that said Willson had no design thereby to part with any right, or divest himself of any interest. That the complainants have built a dam across the stream ; that they raise the head-gate of the feeder, and in a dry time turn all the water into the feeder, and thereby divert it from its usual and natural flow to the respondents’ mill. The respondents also aver, that the 292] complainants assisted *in raising the respondents’ mill, and thereby lost all they had gained, if anything, by the acquiescence of Sehmucker and the Willsons. They deny that the old dam of the Yan Buskirks flowed the water back on to the site of their mill, by which the complainants acquired any rights; but aver the water was not flowed back by said dam, within fifty or sixty rods of the said site. The respondents admit that they are now the owners of the Schmucker tract and of the said mill thereon, etc.,, and that Smith, one of the respondents, in whom the legal title rests, instituted an action against the complainants, and judgment was rendered therein as charged. They deny their purchase with any view to compel the respondents to make a ruinous com. promise, but because at the price paid they thought it a good investment. '
    They deny that it was the intention of Schmucker, in his conveyance to the Willsons, or of the Willsons in their conveyance to the respondent Smith, to limit the use of the water to the residue, after the canal and the complainants’ mills should be supplied, etc. To the answers of the respondents, the complainants filed their replication.
    The questions of fact were argued at great length, by Mr. Vinton and Mr. J. R. Stanbery, for the plaintiffs; and by Mr. Ewing and Mr. H. Stanbery, for the defendants. and by Mr. Ewing and Mr. H. Stanbery, for the defendants.
    The legal positions maintained, on the part of the plaintiffs, were these:
    That whoever buys that which is in the possession of another, with knowledge of his possession, is bound to inquire into the claim of the occupier; and is bound by all the equities that existed between the occupier and the vendor. 1 Story’s Eq. 388; Taylor v. Stibbett, 2 Ves. 439; Sug. Vend. 542; Hiera v. Mill, 13 Ves. 114; Daniels v. Davison, 16 Ves. 249; S. C., 17 Ves. 433; Jolland v. Stainbridge, 3 Ves. 478; Crofton v. Ormsby, 2 Sch. & Lef. 583; Allen v. Anthony, 1 Merivale, 282; Governeur v. Lynch, 2 Paige, 300; Grimstone v. Carter, 3 Paige, 424; Billington v. Welch, 5 Binney, *129; Meux v. Maltby, 2 Swanst. [293 281; 1 Atkinson, 489; 2 Atkinson, 275.
    If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of his title, without making known his claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel. Wendell v. Van Rensaeller, 1 Johns. Ch. 353; East India Co. v. Vincent, 2 Atk. 83; Hanning v. Ferris, 1 Eq. Cas. Ab. 356; Gilb. Eq. Cas. 83; Rogers v. Potts, Prec. in Chan. 35; Handen v. Cheyney, 2 Vern. 150; Styles v. Cowper, 3 Atk. 692; Jackson v. Cator, 5 Ves. 688; Daun v. Sparrier, 7 Ves. 231; Pilling v. Armitage, 12 Ves. 84; Le Fevre v. Le Fevre, 4 Serg, & Rawle, 241; Angell on Water Courses, 68, Lord Mansfield would not suffer a man to recover even in ejectment, where he stood by and saw a man build on his land. The King v. Butterton, 6 Term, 556, cited in 6 Johns. Ch. 168.
    The complainants are entitled to a decree to be quieted in their possession, for the reason, that the acts of Schmucker and tho Willsons amount, in law, to a license to the complainants to use the water of the creek. That a tacit license will be raised by the owners looking on, and seeing money expended, or giving encouragement to such expenditure, seems to be well settled. Berick v. Kerr, 14 Serg. & Rawle, 267 ; Angell on Water Courses, 67, 68. Nor can such license be revoked. 2 Esp. N. P. 268, 636, Gould’s ed.; Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241; Angell on Water Courses, 65 ; Berick v. Kerr, 14 Serg. & Rawle, 241.
    Ignorance of the law on the part of the Willsons can not protect the defendants. Stous v. Barker, 6 Johns. Ch. 166 ; Dyer v. Dyer, 2 Ch. Cas. 108 ; Hobbs v. Norton, 2 Vern, 136; 1 Fonbl. 151.
    Mr. Ewing, and Mr. H. Stanbery, for the defendants, insisted 294] that the authorities cited on the other sido were not in *point; that they all had one ingredient not to be found in this ease, the active agency of the person ignorant of his own title, in the acquisition of title by the purchaser.
    insisted 294] that the authorities cited on the other sido were not in *point; that they all had one ingredient not to be found in this ease, the active agency of the person ignorant of his own title, in the acquisition of title by the purchaser.
    
    The doctrine that " ignorantia juris non excusat,” as now understood in England, regards public rights and liability for crimes, not individual cases. Landsdowne v. Landsdowne, Mos. 264; Bingham v. Bingham, 1 Ves. 126; Turner v. Turner, 2 Ch. Cas. 81; Pusey v. Desbouverie, 3 P. Wms. 321; Cholmondely v. Clinton, 2 Merivale, 361.
    The doctrine of the English courts, at the present day, can be gathered from the late case of Bridges v. Blanchard, 28 Eng. Com. L. 143. A., having a house adjoining the premises of B., writes a note to B., expressing a wish to place a window in the wall to give a more cheerful view, and requests permission to placo a ladder on B.’s land, in order to build the window. B. replies, giving consent to place the ladder. The window is accordingly made, overlooking the premises of B., in the absence of B. B. afterward writes a note to A., as follows : “ When you applied to me for permission to place a ladder in my grounds, being without a friend to advise with, and even without knowing exactly the situation in which your window would be placed, I unfortunately complied with your request, without consulting my own comfort.” The window not being closed, B. built a wall and obstructed it. A., threw down the wall, whereupon B. brought trespass.
    The court held the license insufficient.
    Taunton, Justice, says: “ The whole request, on the behalf of A. was only to have the ladder placed, in order that the work then in progress might be more neatly finished ; the motive stated for the request is entirely a different matter; it is indeed implied in that statement, that A. means to throw out a window, but the request is confined to the placing of the ladder, and the consent is also limited to that. There might be a view to an ulterior object, but it is not to be taken for granted that B. approved of that object, the nature and extent of which she could not be apprised of; for nothing had been ^stated to her of the length, breadth, [295 height or situation of the intended window.”
    This case shows how exceedingly strict the English courts are, in the interpretation of a license, the effect of which is to give a right to the mere passage of light; an interest, if it can be called one, not of the realty, or partaking the character of an easement. Nothing is more certain than that it requires no grant to make a window which shall receive the light transmitted across the close of another, and no action lies for making it. The effect of such a license is not, therefore, the acquisition of an interest, or an easement, in the close of another, but only to prevent that other from the unrestricted use of his own land, and it does not come within the operation of the statute of frauds. It is not an interest in lands. It is not like a right to divert water from the close of another.
    A like principle is found in Tyler v. Wilkinson, 4 Mason, 397; Gilman v. Tilton, 5 N. H. 231; Parker v. Foote, 19 Wend. 313; Hibburn v. McDowell, 17 Serg. & Rawle, 383.
   Wood, J.

In this case, the pleadings, exhibits, and depositions are within no ordinary compass. Yolumes have been ably written by counsel, and we have derived great aid from their assistance, in extracting from the mass of papers the real merits of this controversy, by no means unimportant or inconsiderable.

The first inquiry which arises is, what wore the rights conferred upon the complainants, by the lease from the acting commissioner, executed in May, 1832? This instrument is an exhibit in the case, and its terms can not easily bo misunderstood. After disposing of the surplus water to the complainants, at a yearly rent of $120, it recites, “ That the party of the second part is to have the use and occupancy of the surplus water which may flow in the north fork feeder, over and above what may be required to supply the canal with water for navigation ; the party of the second part having the right, so far as the rights and interests of the state are concerned, 296] to cause so much of the water of said fork to flow *in said feeder, as can flow therein with safety; and to use all of said water for hydraulic pui'poses, excepting so much as is wanted by the state for navigation.”

If the acting commissioner, at any period anterior to the execution.of this lease, entertained the opinion, that as the agent of the state, he had an unlimited control over the waters of private streams, not only sufficient to insure the safe and steady navigation of the canal, but to their exclusive appropriation, as, in his discretion, the interests of the state would be best promoted and secured, it is cei’tain, when the lease was given, he claimed no such authority. By the terms of the lease, the complainants purchased only the use of the surplus water, after the canal was supplied, and the right to flow through the feeder any quantity that could safely flow therein, so far as the interests of the state were concerned. The acting commissioner, whoso deposition is before us, also swears that he informed the complainants distinctly, that he could only convey the surplus water, as the state claimed no further rights to the use of the stream than to take sufficient from it to supply the canal, and that he then advised the complainants to purchase in the rights of intermediate riparian proprietors, in order to guard against contingencies, and to insure, on future occasions, water sufficient for the propelling of their said mills. How, then, were the plantiffs deceived, or what reason had they to suppose they purchased anything more than the surplus water and the use of the feeder ? There is surely nothing in the case to lead to such conclusion. But suppose the acting commissioner had assumed to sell all that the complainants charge in their bill that they believe was conveyed, would it lay the foundation for relief against these respondents? It is clear, nothing would have passed by such sale, but what the complainants have acquired. The state, notwithstanding the sovereignty of -her character, can take only sufficient water, from private streams, for the purposes of the canal. So far the law authorizes the commissioners to invade private right, as to take what may be necessary for canal navigation, and to this extent, authority is conferred by the constitution, provided a ^compensation be paid in money to the owner. [297

The principle is founded on the superior claims of a whole community over an individual citizen; but then in those cases only where private property is wanted for public use, or demanded by the public welfare. Wo know of no instances in which it has, or can be taken, even by state authority, for the mere purpose of raising a revenue by resale, or otherwise; and the exercise of such a power would be utterly destructive of individual right, and break down all the distinctions between meum et tuum, and annihilate them lorever, at the pleasure of the state. 5 Ohio, 392. The uses of the waters of private streams belong to the owners of the ' lands over which they flow. 4 Ohio, 253 ; Kent Com. 344. They are as much individual property as the stones scattered over the soil. If such streams can bo passed with boats and rafts, the public has the right of passage; but, subject to such easement, the owner of the land may appropriate the use of the water in his own discretion, taking care not to flow it on the proprietor above, and to return it to its natural channel before it leaves his own lands. 8 Eng. Com. Law, 371. It follows, if such waters should be taken by the state for the mere purpose of creating hydraulic power, and rented to an individual, the transaction would be illegal, and no title would pass, as against the owner. Id. In conducting water through the feeder, a discretionary power must necessarily rest in the agents of the state, and in making provision for a supply, it must frequently occur that a surplus will accumulate, and it was the right to the use of this surplus water, which the lease conveyed. There is surely no evidence that when the lease was executed, the acting commissioner made any false or fraudulent representations, nor that the lease itself does not contain the real contract between the parties ; and thus far we can not perceive any ground of relief upon any of the reasons assumed.

But it is claimed that Schmucker and the Willsons acquiesced in the erections made by the complainants, and the use they made of the water; saw them make their improvements, and expressed 298] their approbation, and that they and their grantees *are, therefore, estopped from setting up any conflicting rights. The respondents, doubtless, stand in the situation Schmucker and the Willsons would occupy were they still in possession. The Will-sons, when they purchased of Schmucker, and the respondents when they bought of the Willsons, know that the complainants •were in the possession of this water power, and it is a well-settled principle, which b'as been repeatedly recognized by courts of equity, that the purchaser of what is in another’s possession, and with knowledge of such possession, is bound by all the equities which existed. between the vendor and the occupier. Indeed, it has been often said, that notorious possession of real property must be considered as constructive notice to the purchaser, and that he takes it subject to the equities of the possessor. If the conduct of Schmucker and the Willsons was such as to raise the presumption of a license to the complainants, such license would not only bind Schmucker and the Willsons, but all claiming under them. It would run with the land, and be deemed irrevocable. I must say, however, that there is nothing in the evidence in this case to raise the presumption of any such license. But if Schmucker and the Willsons stood by and saw the complainants expend their money in improvements, when in justice and equity they ought to have disclosed to them conflicting rights, and put them on thoir guard, the complainants acquired an easement in the use of the water of which fheycan not be divested by the respondents. The rule is, if one is silent when he should spe'ak, that justice will compel him to silence when he would speak. “ There is no principle,” says the chancellor, in Weddell v. Tan Ronsalaer, “better established,” or “founded on more solid considerations of equity and public utility, than that which declares that if ono man knowingly, though he does it passively by looking on, suffers another to purchase, and expend money on land, under an erroneous opinion of his title, without making known his claim, ho shall not afterward bo permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience would 299] be bound by such ^equitable estoppel.” 1 Johns. Ch. 353. Many authorities are cited in support of this position, and it must be considered, not only as a salutary, but a well-established rule of equity, and is sustained by many analogous cases.

It remains to be considered, whether the complainants, have brought themselves within it. The evidence is, that while the complainants, were expending their money in the erection of their mills, Schmucker and the Willsons were in utter ignorance that they possessed any rights to the use of the waters of the stream, until both the canal and the complainants’ mills were supplied. Is a man compelled to disclose his rights, or lose them, when he is not conscious they exist? Such a position is sustained by no authority. It is, firstly, the knowledge, and, secondly, the concealment, which estops one from setting up his title. It is fraudulent so to act, and against such conduct equity will relieve, where the other party goes on under an erroneous opinion of his rights, and expends his money. The complainants do not, however, appear to us to occupy this position. The acting commissioner’s deposition must be laid entirely out of the question, before we can adopt any such conclusions. He swears that, at the execution of the lease, he advised them that lie did not assume to sell anything but the surplus water in the feeder, etc., and the lease itself shows that such surplus water, and the use of the feeder to flow more, was all that it imports to convey. If the complainants believed they purchased anything more, and that the state had a right to convey it, their silence as to the clause in the lease, “ so far as the rights and interests of the state are concerned," and their not objecting to it, are unexplained, and are, in fact, irreconcilable with any other hypothesis than a full knowledge of the rights they thus acquired.

The remaining point requires but little more than a single remark. A right to the use of this water is asserted by the complainants, by reason of an occupancy of more than twenty-one years by the Yan Buskirks. There is no evidence, however, to sustain any such claim. An occupancy to confer title must continue, at least, substantially in the same mode. If the ^complain- [300 ants had acquired the right to set back the water, and overflow the defendant’s mill sité, and render the wheels of the mill powerless, by more than twenty-one years’ exercise of such right, they could not, at pleasure, change that right by the substitution of a new one, and draw the water from the stream above^the respondents’ mill, 2 McCord, 450 ; Yelverton, 163. Such rights must be strictly construed.

On all th© grounds assumed for relief, wo are, therefore, clear in the opinion that the bill ought to be dismissed, with costs; but without prejudice to any legal rights of the complainants.

Bill dismissed. 
      
      Where a dam is erected on an ancient stream, to obtain a head of water for the use of a state canal, the surplus waters of the stream not wanted for public use, and which continue to flow over the dam and down the ancient channel, can not legally be diverted, by a lessee of the surplus waters of the canal, to the injury of the owners of mill privileges on the stream below the dam.
      But no person, except by the authority of the legislature, or of the authorized agents of the state, has a right to tap the state dam and draw off the surplus water of the artificial pond, which is created by such dam, for public purposes. Varick v. Smith et al., 5 Paige, 137.
     