
    No. 38
    BUSCH v. WILGUS
    Logan County Common Pleas,
    August 21, 1922
    RIPARIAN RIGHTS — Orchard Island owners of lots fronting on Indian Lake, run to low water mark— Injunction lies, against lessees from State, who try to occupy for private use — Easement implied.
    For full opinion see 24 NP. NS. 208 (LR. Dec. 4, 1922)
    Attorneys — Sayre and West & West, for plaintff; Southard & Goodwin, for defendant.
   HOVER, J.:

Epitomized Opinion.

In 1856 the State of Ohio, hy building a dam across the Miami River in Dogan County, unpounding the water, creater an artificial lake containing several thousand acres of land, known as the Lewistown Reservoir At the dam is a gate that can be raised or lowered so as to regulate the flow of water out of reservoir, and by manipulating it, a high and a low water mark on adjacent lands would be obtained.

The lake was originally constructed as a feeder to the Miaim Canal, but the legislature made it and the adjoining lands a public park called Indian Lake. One of the visible knolls that appeared above the water in the lake is known as Orchard Island. This island was sold by the State, under the description of “Orchard Island” containing 83.89 acres of land. All reference to boundaries was omitted from the deed, and the question that has n-ow arisen is what are the confines of the land conveyed. A survey showed that the 83.89 acres measured at low water mark would contain but 61.38 acres at high mark.

The land on Orchard Island has been pealled and sold to owners who have built cottages thereon. The State, assuming- to own -the beach, leased it to certain abutting lot owners, and gave them permission to construct and maintain a dock landing and hoard walk between the ordinary low water mark and the high water mark. In this case the owner of Cot. 138 began to build such a walk, and thus appropriate this strip of land, and his neighbor objected that it would interfere .with his ingress -and egress to the lake from his property. The Court held;

1. That where an -island is platted into street, parks, etc.,- and the lots fronting on the water are shown on the plat without any space or margin between them and low water wark, the lot owner, in the absence of restriction to the contrary, takes title to the land fronting on the lake, to ordinary low water mark.

2. Injunction will be against one who attempts to take possession and occupy the shore of a platted Orchard Island lot, fronting on Indian Lake, under a lease from the State.

3. The title to orchard Island lots fronting on Indian Lake are subject to implication, -to -an easement arising by necessity occasioned by the rise and flow of the waters of the lake.  