
    Day v. Railroad Company.
    
      Water-courses — Dead of land on bank of rival — Corporation—Dissolution — Reversion.
    1. A general deed of premises lying upon the bank of a river, in which is constructed a canal, conveys the grantor’s rights to the center of the stream bounding the property. And to reserve or exclude from the grant any such rights, the conveyance should contain proper words of such reservation or exclusion.
    2. Where the canal company owning and operating such canal had the right only, to use, for canal purposes, the bed and waters of such river, on ouster of such company from its corporate franchises and its dissolution by order of this court, the trustees winding up its affairs have no power to convey such rights, but they revert to the proper owners.
    Error to the District Court of Portage county.
    The Pittsburg, Youngstown and Chicago Railroad Company is a corporation under the laws of Ohio, and it was building its road through the village of Kent, in Portage county, Ohio. It was commencing to grade and build its road on property claimed by Day, Williams & Co. as partners, when, October 1, 1881, they, the plaintiffs in error, commenced an action against the railroad company and others to enjoin the railroad company from entering upon their premises until the right of way was duly condemned and paid for. The property is what was once used as a part of the Pennsylvania and Ohio canal, and it is in the bed of the Cuyahoga river, between the east bank and the middle of the river. In their petition plaintiffs averred that they owned the premises on the east bank of the river, which premises extended to the middle of the river, and that they were extensively engaged in the manufacture of glass on the property; that the use of the water of the Cuyahoga river was indispensable to their business; that it was impossible to carry on the manufacture of glass without said water; that it was not practical to obtain water elsewhere, save at enormous expense; that the construction of the railroad, as proposed, would deprive them of the use of said water, and necessitate the abandonment of their business, or the carrying it on at a loss — damage them many thousand dollars, and .otherwise do them great and irreparable injury; and they prayed for an injunction and damages.
    A temporary injunction was allowed.
    On February 7, 1882, the railroad company set up in its amended answer:
    That it admits the copartnership of the plaintiffs ; that they are the owners of a glass factory property in the village of Kent, in Portage county, Ohio; that they pur-' chased the same from Marvin Kent, by contract in writing, dated the first day of July, 1864, and received a deed thereof from Marvin Kent and wife, dated March 8,1868, in pursuance of said contract and in fulfillment thereof; that the plaintiffs are engaged in the manufacture of glass, and that defendant is engaged in the construction of a line of railroad extending through said village of Kent.
    The defendant denies that the west boundary of plaintiffs’ glass works property is the center of the Cuyahoga river. Defendant further says that about the year 1840, a corporation duly created, organized, and then existing under the laws of Ohio by the corporate name of ‘‘ Pennsylvania and Ohio Canal Company,” and possessing under its charter full authority and right to construct, maintain, and operate a public canal and water highway for •the transportation of persons and property through the county of Portage, in the due and legal exercise of its rights and franchises in and about the acquisition of its right of way and the construction of its canal thereon, duly obtained the right and legal authority to construct its canal in the Cuyahoga river through a portion of the township of Franklin, in the county aforesaid, in which plaintiffs’ said premises are located, and did construct its canal in said river from a point several hundred feet northward of plaintiffs’ premises, to a point several 'hundred feet southward thereof; that in and about the construction of the canal, said canal company, between the points aforesaid and opposite plaintiffs’ premises, constructed its towing path in and along a portion of the original channel of said river and thereby diverted the stream so that all the waters thereof except that portion of the same used for the purposes of the canal ran and flowed along the channel of the river lying and being on the westerly side of the towing path, and the canal company constructed all and every part of the channel and bed of said river lying east of its said towing path and between the east line thereof and plaintiffs’ said premises into a canal, and maintained, used, and operated the canal so constructed from that time down to the year 1872; that the construction of said canal in the manner aforesaid permanently changed and diverted the flow of the waters of the river to the west side of said towing path; that by reason of the acquisition of the right of way and portion of said id ver by the canal company and the construction of its canal thereon as aforesaid, cut off and appropriated all the water rights, mill privileges, ana riparian rights and interests in, to, and connected with any and all lands lying on the eastern side of said river, including the premises of the plaintiffs between the points aforesaid
    Defendant further says : That by the terms and provisions of its charter, the canal company took the fee-simple title to all the lands, rights, and interests so acquired by it for the purposes of the canal, and that all of its rights and lands are now owned and held by the defendant as hereinafter stated.
    The defendant further says: That long after the construction of the canal as aforesaid, and while the same was being maintained and operated by the Pennsylvania and Ohio Canal Company under its rights, powers, and franchises, the plaintiff's purchased from one Marvin Kent all the lands and premises now owned by them, bounded and described as follows, to wit: Situate in Franklin township, Portage county, Ohio, and known as part of township lot No. 25, bounded and described as follows: Beginning at a point in the west line of Canal street, in said town of Kent, where a continuation west of the south side of Mill street crosses said Canal street; thence south 18° 15' west seven chains and thirty-one and one-third links to a post in the west line of Canal street; thence north 72° 30'west four chains and twenty-one links to the Pennsylvania and Ohio canal (the east bank of which is hereby understood to be what was formerly the east bank of the Cuyahoga river) ; thence northerly along the east bank of the Pennsylvania and Ohio canal to a point where the continuation west of said south line of Mill street intersects the east line of said Pennsylvania ánd Ohio canal; thence north 69° 45' east one chain and fifty-eight links to the place of beginning.
    That plaintiffs’ deed from Marvin Kent, containing the aforesaid description and boundaries, carried the west boundary line of their premises to the east line of said Pennsylvania and Ohio canal; that they never had or held any riparian or other rights in, to, or concerning said canal during the time the same was maintained and operated, or since; and they never took, by the terms of their deed or otherwise, any title or ownership to any portion of the bed of the canal, or to any of the land over which the same was constructed.
    The diagram on the following page shows the location of each part.
    
      Second. Eor further answer herein the defendant says : That it is the owner of all the lands lying west of said former east bank and line of said Pennsylvania and Ohio canal, adjoining plaintiffs’ premises on the west, that were formerly owned and occupied by said canal for the purposes of the construction, maintenance, and operation of the saíne by said canal company; that the defendant has the title thereto by virtue of a contract, in writing, between it and the New York, Pennsylvania and Ohio Railroad Company, dated the 19th day of July, a. d. 1881, said last named company having title thereto by virtue of conveyances from the trustees of said canal company, duly executed and of record in the county of Portage; that the east line of the premises so purchased and owned by defendant is the east line
    
      
      
    
    
      of the berme bauk of said canal on and along plaintiffs’ premises; that the line of defendant’s railroad is located and fixed entirely on its own land, lying west of said line, andvin no place or part does it touch any land of the plaintiffs, or in anywise interfere with or affect the same, or any buildings or structures thereon; and the defendant has the complete right to enter upon its said premises and construct its line of railroad in the legal exercise of its fran•chises and powers.
    In the reply the plaintiffs’ deny specifically many allegations of the answer, and aver that, prior to the construction of the Pennsylvania and Ohio canal, the canal company entered into a contract with the Erauklin Land Company, which last named company then owned the premises described in the petition and held the legal title thereto ; that in said contract it was provided that the canal company should construct its canal between two walls in the river, and that between the canal and the east bank of the river water should continuously flow from the pond created by the canal dam down to and past the premises now owned by plaintiffs for the express use, convenience, and enjoyment of the owners of said premises and their assigns, and for the propulsion of valuable mills and machinery located on said premises; that in the contract all riparian and other rights to the waters of said Cuyahoga river and the flow of the stream thereof were expressly reserved as an appurtenance of and to the premises now owned by plaintiffs and to said land company as the owners thereof and its assigns, and that said riparian rights, water privileges, and appurtenances, and mill powers, property and premises, by divers and sundry mesne grants, conveyances, and assignments, became and are the property and inheritance of the plaintiffs as appurtenant to the premises described in the petition; that such riparian rights and privileges were always recognized by the canal company as appurtenant to said premises, and were always exercised and asserted by plaintiffs and their grantors without let or hinderance from any body and under claim of right by them.
    
      Further replying, plaintiffs say that said Pennsylvania, and Ohio canal was substantially abandoned long previous to plaintiffs’ purchase of their properly and premises; that no repairs were done on the canal after 1862, and the same ■was suffered to get out of repair and become practically unnavigable before July 18, 1864, aud the evidences were then conclusive and plenty that the same would soon be completely and permanently abandoned, and that previous to March 3, 1868, the canal had been entirely abandoned by said canal company, and suffered to become entirely useless and out of repair for the purposes of a public highway by means of said canal as a water-way, and has ever since been abandoned as a canal or public highway by means of water navigation; that for a period of more than twelve months prior to March 8, 1869, said canal had been entirely abandoned and suffered to become entirely useless and out of repair, and had entirely fallen into disuse as a canal or public highway by means of water navigation by boats or other means of conveyance upon or through the waters thereof; and plaintiffs say that at the December term, A. d. 1872, of the supreme court of the state of Ohio, in a suit therein pending in the nature of quo ioar~ ranto, instituted by the state of Ohio on the 8th day of March, 1869, the said Pennsylvania and Ohio Canal Company was, by judgment, order, and decree of said court, dissolved and altogether ousted from its corporate rights, privileges, and franchises, and altogether ousted and excluded from being a body politic and corporate of and within said state, and from all and singular, and any and all rights, powers, privileges, and franchises appertaining or attaching to such corporation under the laws of said state, and that said corporation was and is to all intents and purposes dissolved and dead; that thereafter neither the Pennsylvania aud Ohio Canal Company, nor any other corporation or person, had any right to keep or maintain, in said Cuyahoga river, any of the artificial obstructions built and placed in said river by the canal company for the purposes of its canal; that these defendants can acquire no right by reason of such obstructions ; that the samo are unlawfully there, and unlawfully kept and maintained in the river; that if all such unlawful obstructions were removed the larger part of the waters of said river would naturally flow against the east bank, on which plaintiffs’ factories stand.
    The court of common pleas made the injunction perpetual, and the action was appealed to the district court.
    On trial, in the district court, it was agreed that formerly the Franklin Land Company owned both sides of the river from the dam above this property down to a point below this property upon the river to the south end of the disputed property and including it. “And the rights of the land company and their title, as it is conceded, was conveyed to the land company from the Franklin Silk Company. From the Franklin Land Company by sheriff to Zenas Kent, from Zenas Kent to II- A. and Marvin Kent, from H. A. Kent by quitclaim to Marvin Kent. And then comes the contract and deed from Marvin Kent to Day, Williams & Co. This is the subject of the agreement.”
    The deed from Marvin Kent to Day, Williams & Co. as to this part of the property, was a general warranty deed, except the right to abut a dam on part thereof. This deed bounded the property as set forth in defendant’s answer.
    The defendant claimed title to the property it had entered upon, by virtue of its purchase from the assigns of the trustees of the Pennsylvania and Ohio Canal Company, actingin the case of The State ex rel. Attorney-General v. The Pennsylvania and Ohio Canal Co., 23 Ohio St. 121, when that company in Ohio was dissolved and its property sold; and also by the verbal consent of Marvin Kent, given to it, to so use the property. The canal company obtained its rights in the property from the Franklin Land Company by a contract, granting to the company as follows:
    “ The canal company shall use the canal darn and waters therein for canal purposes, and the land company shall use the same dam and the water therein, as well as the water passing round the lock at that point for the propulsion of water wheels : and in consideration further that said canal company shall locate and construct their canal so as to lock down into said canal dam and pass out of the same by a lock in the dam thence to the south line of the lands purchased by said land company of Zenas Kent. Said canal shall be constructed between two walls in the river bed and so far from the east bank of the river as to leave a space between the said east bank and the walls of the canal of sufficient width for a convenient tail race for such wheels as said land company or their assigns may there construct, and this race shall be excavated by said canal company the whole length to a level with the apron under the wheels of the flouring mill bought by said land company of Zenas Kent and pass under the canal into the river channel by a culvert at or near said south line.”
    The contract also permitted the canal company to take and divert “ from said river such quantity of water as will be sufficient to keep said canal in a navigable state at all times when the same shall be navigated, and when the navigation of said canal shall be interrupted by frost or otherwise said canal company shall have the right to draw from said river so much water as shall be necessary for the purpose of sustaining the levels and preserving the canal, taking due care to keep the lock gates shut and to prevent any unnecessary leakage. Upon condition, however, that the lake reservoirs shall be constructed and used in the manner recommended iu the report of S. Dodge, Esq., made to the board of directors of said canal company on the 6th day of July, a. d. 1835, or in the manner recommended in the report of Alfred Kelley, Esq,, made to the executive committee of said board of directors July 29, 1835, reference to said reports being hereby had,” etc.
    On trial, the majority of the district court found that the plaintiffs were not entitled to the relief prayed for in their petition, and dismissed the same at plaintiffs’ costs, without prejudice to their right to bring an action at law to recover the possession of the premises described iu the petition, or such other action as may be necessary to determine their rignts.
    A bill of exceptions was taken, and plaintiffs seek a reversal of that judgment, and the injunction prayed for, and the establishment of their rights.
    
      Myron A. Norris and M. Stuart, for plaintiffs in error.
    
      T. W. Sanderson, for defendant in error.
   Eollett, J.

A correct understanding of the facts of this case, set forth and shown in the statement and diagram heretofore, is necessary to the proper application of the legal principles that determine the rights of the parties.

But plaintiffs’ rights depend greatly upon the true construction of the deed of Marvin Kent and wife to them, dated March 3, 1868.

And the defendant’s rights depend upon what was conveyed to its grantor by the trustees ot the Pennsylvania and Ohio Canal Company after the ouster of that company by this court, as shown in the case of The State ex rel. Attorney-General v. Pennsylvania & Ohio Canal Co., 23 Ohio St. 121.

I. What rights has the defendant, The Pittsburg, Youngstown and Chicago Railroad Company, in this disputed property ?

The Eranklin Land Company owned both sides of the Cuyahoga river where this property is in dispute,,and, while such owner, it made the contract with the Pennsylvania and Ohio Canal Company, dated May 27, 1836.

The contract provided that “said canal shall be constructed between two walls in the river bed and so far from the east bank of the river as to leave a space between said east bank and the walls of the canal of sufficient width for a convenient tail race for such wheels as said land company or their assigns may there construct, and this race shall be excavated by said canal company the whole length to a level with the apron under the wheels of the flouring mill bought by said land company of Zenas Kent, and pass under the canal into the river channel by a culvert at or near said south line.”

1 It also provided that “ the canal company shall use the said canal dam and waters therein for canal purposes, and the land company shall use the same dam and the water therein, as well as the water passing round the lock at that point, for the propulsion of water wheels; and in consideration further that said canal company shall locate and construct their canal so as to lock down into said canal dam and pass out of the same by a lock in the dam thence to the south line of the lands purchased by said land company of Zenas Kent.”

It further provided that “ when the navigation of said canal shall be interrupted by frost or otherwise said canal company shall have the right to draw from said river so much water as shall be necessary for the purpose of sustaining the levels and preserving the canal, taking due care to keep the lock gate shut and to prevent any unnecessary leakage.”

The canal compauy must locate the canal at a distance west of the east bank of the river “ of sufficient width for a convenient tail race.”

These provisions clearly show that the canal company took only the right to use the property west from a line west of the east bank of the river, and to use the water of the river so far only as needed for the canal. And when the canal company was dissolved, this right must be regarded as abandoned and it reverted to the land company and to its grantees. Corwin v. Cowan, 12 Ohio St. 629; Longstreet v. Harkrader, 17 Ohio St. 28, 29.

This left nothing that the trustees of the canal company could sell and convey, unless perhaps something that they could remove from this property. And the defendant has no rights in this property by virtue of any conveyance or sale by such trustees.

This position is fully sustained in case of McCombs v. Stewart, 40 Ohio St. 647, where, as to a similar conveyance of these same trustees, it is held: “A canal company, incorporated under the act of January 10, 1827 (25 Ohio L. 8), erected across a river a dam . . . causing the water to flow back upon the lands of a proprietor above the dam on the stream. The company owned in fee-simple, by purchase, the land on which the south half of the dam was built, but none of the land on which the north half was built; and conveyed, in fee-simple, to certain mill owners, the land it thus owned, and granted to them and their heirs the privilege of using the surplus water of the dam not required for canal purposes. Held, the right of the company acquired by appropriation, to flow the lands of such proprietor by maintaining a dam. of such height, did not, by virtue of the company’s conveyance and grant to the mill owners, survive and vest in them after the dissolution of the corporation.”

In the ease of Pittsburg and Lake Erie R. R. Co. v. Bruce, 102 Pa. St. 23, as to another such conveyance by the trustees it is held, “ that the company acquired under the terms of the charter a right of way only over the lauds appropriated by them, and that they did not acquire said lands in fee; ” that “ said canal company having become insolvent, and all its property and franchises being sold to a railroad company by order of court: Held, that said last named company could not construct its tracks on the right of way acquired by the canal company without compensation to the owner of the land.” This company had only the right to use the property and the waters of the river for the canal, and after ouster and dissolution neither the company nor the canal remained or existed.

If we disregard the form and averments of the pleadings, whether or not the defendant acquired any rights in this property through the verbal permission of Marvin Kent, is determined by what rights Kent had at that time, long after his deed to plaintiffs.

II. What x-ights havesthe plaintiffs in this disputed prop, erty?

We will not stop to discuss what rights their possession gives them, though this is valuable, especially in connection with their contract and deed. On the trial it was agreed by the parties that “ the Eranklin Land Company owned both sides of the river from the dam above this propei’ty, down to a point below this property upon the river to the south end of this disputed property and including it. And the rights of the land company and their title, as it is conceded, were conveyed . . . from the Eranklin Land Company by sheriff to Zenas Kent, from Zen as Kent to PI. A. and Marvin Kent, from PI. A. Kent by quitclaim to Marvin Kent. And then come the contract and deed from Marvin Kent to Day, Williams & Co. This is the subject of the agreement.” By this written contract Marvin Kent sold to Bay, Williams & Co. “that lot of land and the buildings and improvements thereon known as the Eranklin Glass Works,” and he bounded the property by running the line the other way from what it is run in the deed. The contract is dated July 18, 1864, and the deed is dated March 8, 1868, and was made to carry out the contract. As to this property the deed contains a covenant of general warranty, and described the property, “ with the buildings and improvements thereon, known as the Eranklin Glass Works, situate in said town of Kent, and is known as being a part of township lot number twenty-five (25), in said township of Eranklin, and bounded and described as follows, to wit: Beginning at a point in the west line of Canal street in said town of Kent where a continuation west of the south side of Mill street crosses said Canal street; thence south 18° 15'west seven chains and thirty-one and one-third links to a post in the west line of Canal street; thence north 72° 30' west four chains and twenty-one links to the Pennsylvania and Ohio canal (the east bank of which is hereby understood to be what was formerly the east bank of the Cuyahoga river): thence northerly along the east bank of the Pennsylvania and Ohio canal to a point where the continuation west of said south line of Mill street intersects the east line of said Pennsylvania and Ohio canal; thence north 89° 45' east one chain and fifty-eight links to the place of beginning, containing-acres of land, be the same more or less.”

By the terms of the deed, Rent conveyed to the plaintiffs all the rights he had in this property along the the east bank of the river and up “ to the Pennsylvania and Ohio canal,” and then adds in parenthesis, “ the east bank of which is hereby understood to be what was formerly the east bank of the Cuyahoga river,” and he made no reservation of any part of the bed'of the river or of any water privileges. When the canal was gone there was nothing left but the river.

As early as Gavit v. Chambers, 3 Ohio, 496, this court held: “ In Ohio, owners of lands situate on the banks of navigable streams running through the state, are also owners of the beds of the rivers to the middle of the stream, as at common law.” And the same is true of all streams away from tide-water.

In Benner v. Platter, 6 Ohio 504, this court held: “A call in a survey, for a stream not navigable, is a call for the main branch of such stream, and the boundary is the middle of the stream.”

In Lamb v. Rickets, 11 Ohio St. 311, the court held: “ Where the owner of land is bounded by a stream, he owns to the center of the stream, subject to the easement of navigation.” Here it was subject to the rights of the canal company.

In Walker v. Board of Public Works, 16 Ohio, 540, the court repeats the holding: “ He who owns the land on both banks of a navigable river, owns the entire river, subject only to the easement of navigation; and he who owns the land upon one bank only, owns to the middle of the main channel, subject to the same easement.” And also: “ The legislature can not, by declaring a river navigable which is not so in fact, deprive the riparian proprietors of their rights to the use of the water for hydraulic and other purposes, without rendering them compensation.”

In June v. Purcell, 36 Ohio St. 396, this court went further and held: “ The principle decided in Gavit v. Chambers, 3 Ohio St. 496, that the owners of lands situate on the banks of navigable streams running through the state are also owners of the beds of the rivers to the middle of the stream, as at common law, has become a rule of property, and, irrespective of the question of its original correctness, ought not to be disturbed.” And, in the opinion, White, J., adds: To disturb the rule now would be a dangerous tampering with riparian rights.” Such is the law of England and of most of the states.

If the grantor does not intend to convey the bed of the river and the water in the water-course bounding the land conveyed, he must insert in the instrument of conveyance proper words for the purpose of reservation or exclusion; “but in the absence of such words, the bed, and consequently the stream itself, passes by the conveyance.” Aug. Wat., §§ 9 and 17, and cases there cited. Here there was no such reservation or exclusion.

The plaintiffs had all the rights ever held by Marvin Kent in this property, and the defendant took nothing by Kent’s permission.

The court erred in permitting Kent to testify as to any permission he gave the defendant in the property, and it also erred in the construction of plaintiffs’ deed, and of defendant’s conveyance.

Judgment reversed; injunction granted and made perpetual, and cause remanded.  