
    *Hardesty Walker and Rorert Fulton v. The Board of Public Works.
    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.
    The provisions of the legislative resolutions of March 12, 1845, providing for the assessment of damages to the riparian proprietors upon navigable streams, extends to all streams which have been by the legislature declared navigable.
    He who owns the land on both banks of a navigable river, owns the entire river, subject only to the casement 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.
    This is a mandamus directed to the board of public works.
    The writ was issued pursuant to resolutions of the general assembly, adopted March 12, 1845. The resolutions, with their preamble, are as follows :
    “Whereas, doubts have been entertained whether riparian proprietors on the navigable rivers of the state, are, in good faith, entitled to remuneration from the state on account of deterioration of the value of their investments in hydraulic purposes on such rivers; to settle such doubts, and as a rule to guide the board of public works, and their appraisers in such cases, be it
    “1. Resolved, by the General Assembly of the State of Ohio, That owners of land on the banks of any rivers of the class described in the above preamble, who have erected dams across such rivers, and upon which dams for hydraulic purposes have been authorized by law, who have sustained damage to capital by them employed on such lands for hydraulic purposes, by reason of the abstraction of water from such river, by authority of law, in the construction or repair of any such public works of this state, or by backwater, *by the same authority, caused by the construction or repair of any such public works, are entitled to compensation from the state for such damage so far as such capital, by them so invested, is made of less value thereby.
    “ 2. Resolved, further, If any riparian proprietor, on such river, shall claim damages from the state, for loss of any supposed interest in, or to the use of, the water of such river, by abstraction of the water therefrom by authority of law as aforesaid, he may apply w the Supreme Court, when in session in any county, for a writ of mandamus, directed to the board of public works, which may be served on them, or any member of said board, and shall be returnable to the next term of the Supremo Court in bank, commanding them (if the said board,, by themselves or counsel, shall not show good cause to the contrary) to assess any damages which .such riparian proprietor may have sustained for loss of any supposed interest in, or to the use of, the water of such river, over and above his loss on the capital by him invested, on his lands on such river, for hydraulic purposes.
    “3. Resolved, further, If the court in bank shall determine in favor of such proprietor, then said court shall order said board to proceed and assess such damages, under the provisions of the act ‘providing for the internal improvement of the State of Ohio, by navigable canals,’ passed February 4, 1825.
    “4. Resolved, further, That the said court shall entertain but ono such application, and the governor shall be authorized to employ counsel to defend the rights of the state in such suit.”
    On July 11, 1846, the relato rs filed their relation for a mandamus, under the second of said resolutions; sotting forth, in substance, that they are seized in fee simple of the land on their bank of the Great Miami river, about one mile below the town of Sidney, in Shelby county; and were so seized of the same, at the time of the abstraction of the water of said river by the State of Ohio, as thereinafter stated; that there is upon said premises a water ^privilege, and that a dam was erected thereon by those under whom relators claim, about the year 1812; that said dam has been ever since continued, abutting upon said promises ; and that the same does not interrupt or impede the navigation of the Great Miami r’iver. And relators further state, that in the year 1843, the water of said Great Miami river was, by authority of law, by the State of Ohio, abstracted from said river above the premises of relators, and taken out of said river through the Sidney feeder of the Miami canal, for the purpose of supplying the Miami canal south of Dayton with water, to the groat injury of relators, etc.
    To this relation, the board of public works have answered, admitting the ownership of the land, as set forth by the relators, and the abstraction of the water of the river by authority of law, but denying the right of the relators to damages, for the alleged reason, “that the said river, as well at the point where the water is so abstracted, as also at the place where the said Walker & Fulton claim to own the banks thereof as such proprietors, is a navigable highway, and the waters thereof have been used by said Walker & Fulton for hydraulic purposes, by means of a dam not authorized by law, and which is, and has been, from its erection, an unlawful obstruction to the navigation of the river, and a pubic nuisance.”
    To this answer, the relators have filed their plea, averring that said dam was erected more than thirty years since,- in good faith, and has been so continued ; that said river is not, and never has boon, actxially navigable, or subject to any easement of navigation, at the point where said dam is erected; that said dam has never been an unlawful obstruction to the navigation of said river, and is not, and never has been, a public nuisance; and that, therefore, the waters of said river are not, at the point where said dam is • built, navigable waters, within the true intent and meaning of the ordinance of 1787.
    The plea further insists on the custom, for more than twenty years,' t'o build dams on tho Great Miami river both above *and below the dam of relators, without reference to the easement of navigation, and on the acquiescence of the public in the exorcise of this right; and that, in good faith, the relators have by prescription such right.
    The plea also insists that the State of Ohio has fully recognized the rights of relators by the acquiescence of the Miami Navigation Board, a corporation created by the general assembly, for regulating the navigation of said river and its tributaries, and also by the state herself having built two dams below said relators’ dam, without slope or lock, for navigation ; and that, in good faith, the state is thus estopped from denying the rights of relators in the premises.
    To this plea there is a demurer.
    Swan & Andrews, for the relators.
    Henry Stanbery, attorney-general, contra.
   Birchard, C. J.

This proceeding was authorized by the legislature in order to obtain the opinion of this court as to the duty of the state, in reference to certain riparian proprietors using hydraulic privileges on certain streams of fresh water, navigable under the provisions of the ordinance of 1787, and which have been declared navigable by sundry statutes.

This is evident from the preamble to the resolutions: “ Whereas, doubts have been entertained whether riparian proprietors on the navigable rivers of the state are in good faith entitled to remuneration from the state on account of deterioration of the value of their investments in hydraulic purposes on such rivers, to settle such doubts,” etc.

In disposing of this subject, it is well in the first instance to consider what are the respective rights of the public and riparian owners in the streams within our borders, which are in fact navigable. The question is not new in this state. It has been repeatedly before this court, and the rule is this: Ho who owns the land on both banks of such 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. The right of the public is merely the right to use the water within the channel for the purposes of navigation. The proprietor of the lands upon its banks may use the waters, of the river in any way not inconsistent with the public easement, or of private rights, and neither the state nor any individual has the right to divert the water to his injury. The right of the adjacent proprietor to the water of the stream is a usufruetory right, appurtenant to the freehold, not an absolute property. Hence the state, in its exercise of the right of eminent domain, can subject the waters of such stream to other public uses the same as any other pi’ivate property, by making a just compensation for the injury, and not otherwise. Gavitt v. Chambers, 3 Ohio, 495; Commissioners Land Fund v. Kempshall, 26 Wend. 404; Rules of the Chancellor of Now York in 17 Wend. 571.

There is another matter to be considered before we come to the questions arising upon the pleadings, viz: the effect of a statute declaring an unnavigable stream to be navigable. It is worthy of remark, that in all the statutes of this description, enacted hitherto in Ohio, no provision is made for compensating the owners of the land, through which such small streams flow, for any injury which may accrue in consequence of thus converting their private property into public highways. There is no provision made for the purchase of the easement thus dedicated to the public use, or attempted to be created for the public use. Yet prior to the passage of these acts, the owners of the lands on both banks of such streams owned the streams and the right to use the water flowing in them, in any manner consistent with the rights of persons above and below them, without let or hindrance. They might erect dams or other obstructions to direct the water from the bed of the stream to. any point of their premises, returning it to its natural channel after using it at their pleasure or convenience. A right of this desrription is a right of property within the protection of the constitution, *and that can not be impaired by a legislative enactment which provides no compensation to the proprietor for the injury. It follows from these principles, that a mill-dam belonging to these relators was erected by authority of law. It was such a structure as the owner of the soil might erect without the aid of. any statute, and in opposition to the prohibition of the statute declaring that portion of the. Great Miami navigable. The common law sanctions it, and conferred the power to build the mill and use the water, while no binding statute forbade the act. The plea avers that the stream at the point of erection was never subject to the easement of navigation. The demurrer admits the facts well pleaded, and as we shall hereafter see admits this fact. The relators have, therefore, in the words of the preamble, “in good faith,” and in law, a clear right to demand of the state full compensation for all the injury to them occasioned by the diversion of the waters of the Great Miami from its natural channel.

It remains for us to consider only whether they have made a case within the resolution of March 12, 1845. 43 Local L. 456. The first resolution gives to the owners of land on the banks of any navigable river, who have erected dams across such river, and upon which dams for hydraulic purposes have been authorized, etc., the right to institute this proceeding. The Great Miami is declared, by sundry acts of the legislature, to be a navigable river. The legislature, by those acts, has shown what were its views of this stream, and from that we may infer what its meaning was, when speaking of navigable rivers in these resolutions.

We ought to understand the same words “navigable rivers,” when employed in different acts by the same body, to mean the same thing. In these resolutions, “ navigable rivers” should be considered for the purpose of interpretation and construction, as defined by the statutes declaring this stream navigable. Those statutes show what these words mean as used here, and we want no better exposition of what our own legislature means, when speaking of a “ navigable river’.” *It is a stream, great or small, which they have thus christened. By an exercise of the legislative power, the state says the Great Miami is navigable at, above, and below the mill-dam of the relators; and although we deny to the legislature the power to change the private rights of the riparian proprietor by so doing, yet for all other purposes consistent with the provisions of the constitution, the statutes should be sustained—more especially, to enable us to carry into effect subsequent legislative action, according to the true meaning and intention of the general assembly. But we are not required to hold that the mill-dam of the relators must have been built pursuant to these special statutes, and with a slope for the passage of boats, even if the Great Miami was in fact navigable at that point, and subject to a public easement. The resolution does not restrict the intended relief to those owners of dams, where dams were built pursuant to the provisions of either the special statutes or the rules of the common law. It is given to those owners, who have erected dams across “navigable rivers,” and upon which ^rivers'] dams for hydraulic purposes have been authorized by law. The relative which, relates to rivers, not to the word dam. This is the grammatical construction of the sentence, and this reading of the resolution is precisely what it should be, if the object of the state was to render to the riparian owners exact justice, of which object there can be no doubt. Eor if an owner had constructed and continued a dam for hydraulic purposes, without providing for the passage of boats as required by the statutes, that would furnish no good reason why the state authorities should divert from the channel of the river, and deprive him of the right which he had to use its waters, without compensating him. It might subject him to the penalties provided by the statute. It might afford a reason for abating his dam as a nuisance, but nothing more. If a nuisance, the fact would tend to lessen the damages which he might claim, and would not be a reason for denying them altogether.

How then stands the issues, when tided by the foregoing *rules, and the well-known rules of pleading? The demurrer to the plea reaches the first defect in the pleading. If the answer sets forth a valid defense, and the plea is bad, then the demurrer is well taken ; but if the answer is insufficient the demurrer is not well taken, because a bad plea is sufficient, if the answer is defective. The gist of the answer of tho board of public works is, “that the waters of the Great Miami have been used by Walker & Fxdton for hydraulic purposes, by means of a dam not authorized by law, and which is and has been from its erection an unlawfxil obstruction to the navigation of said river, and a public nuisance." In other words, your dam was a nuisance, ergo, you had no righ t to the waters of the river. This is not sufficient to bar the relators’ claim, and we need not further consider the plea.

Demurrer overruled ; mandamus peremptory ordered.  