
    State of Ohio v. Snook et al.
    
      Lands acqtdred by state for canals — Become property oj state in fee —Acts of February 4, 1825, and Febimary 27,1826 — State ex rel. v. the P., C., C. & St. L. Ry. Co., followed.
    
    1. Lands of which the state in any manner acquired possession under the acts of February 4, 1825 (2 Chase, 1472), and February 7, 1826 (24 O. L., 58), and used in the construction of its canals, became the property of the state in fee. (State ex rel. v. The P., C„ C. & St. L. Ry. Co., 34 W. L. B., 15.
    2. It does not prevent the application of this rule that in a deed conveying to the state, upon a valuable consideration, lands which were in part so used, there was a recitation that the conveyance was in aid of the canal fund.
    3. The act of February 7, 1826, did not authorize the canal commissioners to sell, nor the governor to grant, any portion of the lands used for the construction of the canals, including “feeders, dikes, locks, dams and sn'ch other works and devices ” as they had employed in their construction.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Summit county.
    Frances Snook, the general assembly having authorized the joining of the state as a party defendant, brought suit against the state and Jackson; as its lessee, to recover possession of real estate described, in her petition,-it being a portion of lots 233 and 234 on the plat of Akron, lying- between the navigable portion of the canal and a portion of said lots which, as the parties agree, she owns and occupies. The portion of said lots in controversy is occupied in part by a basin of the canal, in part by a dike whereby the waters of Wolf Run are prevented from entering the basin at that point, as they naturally would, and in part by a substituted channel of said run through which its waters are carried alongside said basin to the second lock below where they are used to feed the waters of the canal for locking boats to and from the next lower level, the surplus being used for hydraulic purposes. The petition and answer joined issue on the title in fee.
    On the trial the plaintiff introduced a survey and plat of Akron, showing that these lots, among others, ‘ ‘as marked on the map, have not yet been surve3Ted or staked out on the ground, the survey of which is to be deferred until the canal is made, and may be enlarged or diminished in size as may be found convenient when the ground is prepared for their actual location.” This plat was made in November, 1825. She also introduced a deed from Williams and wife (under which both parties claim 'title) to the state, dated May 13,1826, whereby the whole of lots 233 and 234 weré conveyed to the state in fee “in aid of the canal funds of said state,” and two deeds from Governor Lucas, one dated January 10, 1834, and the other February 2, 1835, the former conveying lot 234 to Thomas May in fee, and the latter conveying lot 233 to George Kirkum in fee. Both deeds recite that they are executed in pursuance of an act of the general assembly entitled “An act to provide for the increase of the canal fund by the purchase and sale of real estate for and on behalf of said state,” passed February 7, 1826.” It is admitted that by the mesne conveyances put in evidence, Mrs. Snook established her claim to the title conveyed by said deeds to May and Kirkum.
    The canal, including the basin, the embankment and the substituted channel of Wolf Run, was constructed after the execution of the deed of Williams to the state, and before the execution of the • deeds from the state to May and Kirkum. Other facts material to the points decided are stated in the opinion.
    The court gave, among others, the following instructions to the jury:
    “Now, as to this Williams deed, I say to you that its effect was to convey to the state, lots 233 and 234, not for the purpose of constituting its canal, but in aid of the canal funds of said state; which implied that the lots might be converted into money by sale; and unless you shall find from the evidence that subsequent to accepting this deed the state altered the boundaries of the lots with respect to the basin front, I will limit it to the basin front now; they are to be considered by you as extending to the water of the basin as it existed, for lot 233 at the date of the Kirkum deed, and as to lot 234 at the date of the T. P. May deed, as you shall find it to have been from the evidence, so as to give said purchasers, their heirs and assigns, the privilege of building wharves and warehouses thereon- convenient for commerce, by extending the lines of said lots straight forward to the water where the same then was of sufficient depth for the purpose aforesaid. But, it being conceded by the plaintiff that this land does not extend beyond the piling, you need not go further west for the westerly line of said lots.
    “Whether _ the state appropriated any of the lands in contention, and if any, how much, by eminent domain, is a fact for you to find from the evidence; and this you must find, if you so find the fact to be, from other evidence than the simple fact of the occupancy of the lands for the purpose of constructing and maintaining the lower basin, or the ditch for passing the waters of Wolf Run. * * * * * * *
    “Whatever lands you find were embraced in lots 233 and 234, as conveyed by the state to T„ P. May and Kirkum, you may presume to have been sucia lands as the state had a right to sell for the purpose of increasing the canal fund, and not such lands as the state appropriated by eminent domain, from the fact that the state conveyed the same, and from the recitals in the Williams deed, and the two deeds to May and Kirkum, notwithstanding the fact that the raceway was then, or since has become the substitute or bed of Wolf Rain, and the use of the basin for canal purposes. We hold that it was then competent for the state to determine whether it owned the lands embraced in those lots for' canal purposes alone, or not, and that its determination in that respect cannot at this late day be questioned by the defendant Jackson, or the state.”
    The following instruction requested by the state was refused.
    “Seventh Request — If you find that prior to the construction Of the Ohio canal, Paul Williams deeded to the state of Ohio, lots 233 and 234 of the town plat of South Akroia, and that after receiving-said deed, the state constructed upon a portion of said lots a canal basin, embankment and race as a • permanent part of the said canal, and that after constructing- the same and filling the said basin with water in such a manner that the actual occupancy of the state with said canal basin, embankment and race was apparent and plainly visible, the state deeded the said lots to Kirkum and May, respectively, then in that case, Kirkum and May would not, by said deeds, obtain title to so much of said land as had been actually taken by the state for canal construction.”
    In the common pleas there was a verdict in favor of the plaintiff against both defendants for the possession of the premises and against Jackson for rents and profits. Their motions for a new trial was overruled, and judgment rendered on the verdict. Both defendants filed petitions in error in the circuit court, where the judgment of the common pleas was affirmed, and that affirmance they assign as error here.
    
      J. K. Richards, Attorney General, and R. W. Sadler, for plaintiff in error.
    We contend for the state:
    
      First — That the plaintiff below does not own, and the state does own, the land in dispute.
    
      Second- — 'That, even if this were otherwise, the state has such interest and rights therein as should defeat this action of ejectment.
    The plaintiff below claims the premises in question as the owner of lots 233 and 234, and to apply certain portions of the charge of the court below, to which exception is taken, it becomes necessary to examine her chain of title. .
    
      On May 13, 1826, Paul Williams and wife (he having succeeded to the rights of Simon Perkins), deeded to the state of Ohio numerous lots including said lots 233 and 234. The consideration named in the deed is, ‘ ‘ the benefits which will result to the community in g’eneral and to myself in particular, from the construction of the Ohio canal, and from the foundation of a convenient basin in the village of Akron, in said township and county, which works are now in a state of progression.”
    The deed contains also the following language, upon which plaintiff below relies : “The water lots, or those laid out next to the contemplated basin, are in all cases to be considered as extending to the water in said basin, so as to give owners thereof the privilege of building’ wharves or warehouses thereon convenient for commerce, by extending the lines of said lots straight forward to the water where the same is of sufficient depth for the purposes aforesaid, whether the water in the basin be raised to the level of the summit pond or be only raised to the level of the canal below the first lock.”
    Having received the said deed, the state constructed the canal, basin, embankment and race, as above stated, and thereafter, on January 10, 1834, the governor of the state deeded lot 234 to Thomas P. May, and on February 2, 1835, the governor of the state deeded lot 233 to George Kirkum.
    But if the deeds were valid as to their execution, what passed by them ?
    
      First — Our construction of the language quoted from the deed by Williams to the state is that the lots only extendéd to the water in the basin, i. e., to the water’s edge, with a recital that the reason for their extending to the water’s edge was that thereby the owners of the lots might in the usual way, the canal authorities consenting, build wharves out beyond the lot line and over the shallow water, for the loading and unloading of boats.
    
      Second — It will be noticed that the deeds from the state by the governor omit the very language found in the deed from Williams to the state, upon which the plaintiff below predicated all her rights. The mission is significant. Between the time of the conveyance by Williams to the state and the conveyances from the state, the canal and basin, embankment and probably the race, had been constructed. It has been adjudicated by this court that all the land appropriated by the state for the canal and its appurtenances became the property of the state in fee simple. - Here we have a conveyance to the state in fee simple. Malone v. Toledo, 34 Ohio St., 541.
    Let it be conceded that the deed from Williams was a grant for the benefit of the canal fund. Still it can hardly be denied that the state was as much entitled to construct the canal upon lands so conveyed to it as upon the lands which it took by appropriation. It will be remembered that the appropriation made by the state in those early times was not an appropriation by legal proceedings, but simply an actual taking of the land. Does it not follow that, when the state constructed this basin, embankment and race, it owned the fee of all the land covered by the basin, embankment and race, not simply as a part of its canal fund, but as a part of the canal itself ? If so, the governor, was wholly without authority to convey away any portion of the basin, the embankment and the race, though included in these lots. The authority of the governor to convey was only that which he received by virtue of section 2 of the act . of February 7, 1826. 24 Ohio Laws, 58,
    
      Charles Baird, B. L. Marvin and Tibbals <& Frank, for defendants in error.
    Courts have always been liberal in receiving- evidence with regard to boundaries which would not be strictly competent in the establishment of other facts. Old surveys, perambulation of boundaries, even reputation, are constantly received on a question of boundaries of large tracts of land. The declarations of surveyors made at the time of making- a survey have been admitted. In this country a liberal rule on the subject has been adopted in most of the states. The point was discussed by Mr. Justice Lamar in delivering the opinion of the court in Clement v. Packer, 125 U. S., 209; Ayers v. Watson, 137 U. S., 584; Coate v. Speer, 3 McCord, 227; Kennedy, v. Lubold, 88 Pa. St., 246; McCausland v. Flemming, 63 Pa. St., 38; Greenleaf on Evidence, sections 131 and 145 and notes; Child v. Rangsbury, 46 Vt., 47; Lemmon v. Hartsook, 80 Mo., 13; Deery v. Gray, 5 Wall., 795; Boardman v. Reed, 6 Peters, 328; George v. Thomas, 67 Am. Dec., 612; Davis v. Fuller, 36 Am. Dec., 334; Martin v. Alkinson, 50 Am. Dec., 403.
    From the necessity of the case we were required to rely upon the testimony of declarations of persons who were living at the time the canal was constructed. There was no person living at the time of the trial who had anything to do with the construction of the canal or the location of the basin or the western boundary of lots 233 and 234, and for this reason we were compelled,, as in the case cited in the 88 Pa. St., to depend upon first principles and not try to attain perfection.
    The state in all its contracts and dealings with individuals is governed by the same rules applicable in determining the rights of private citizens in contracting and dealing with each other. Chapman v. State, 104 Cal., 690; Carr v. State, 127 Ind., 204; People v. Stephens, 71 N. Y., 549.
    When a grant is made by a staté the general rule is that the doctrine of estoppel applies to the same extent as if the conveyance had been made by a private individual. „ 2 Devlin on Deeds, section 948.
    Where the grant is for a valuable consideration the rule of construction between the government and the subject is the same as between private grantors and grantees, i. e., the construction, if doubtful, is always in favor of the-grantee. 3 Washburn on Real Property, 190.
    The rule may be stated as a general one in respect to legislative grants in this country, that such grants should be construed liberally in favor of the grantees and in such manner as to give them a full and liberal operation so as to carry out the legislative intent, where that can be ascertained. 3 Washburn on Real Property, 190; Hyman v. Reed, 13 Cal., 444; Charles River Bridge v. Warren Bridge, 11 Peters, 389; Commonwealth v. Roxbury, 9 Gray, 492; Martin v. Waddell, 16 Peters, 411. Where description is uncertain, reference may be made to prior deeds conveying the same land. 2 Devlin on Deeds, section 1013; Bowmans. Wettig, 39 Ill., 416; 2 Herman on Estoppel, sections 676 to 679, inclusive.
    If Wolf Run was diverted by the state and a new channel was substituted for its natural channel,.the new channel is to be treated the same as if it were the natural' bed of the stream in all respects, and the owner of the land over which the stream flowed, in its substituted channel would have no property in the flowing water but would be obliged' to permit the same to flow in the substituted channel without material diminution or alteration, and could not prevent the flow of water over his land. Gould on Waters, section 204; Ford v. Whitlock 27 Vt., 265; Woodbury v. Short, 17 Vt., 387; Cooper v. Williams, 4. Ohio, 286; Buckingham v. Smith, 10 Ohio, 297; R. E. Co. v. Tucker, 48 Ohio St., 57.
    In this last cause the rule is said to be fundamental that , a riparian owner is entitled, as an incident to his estate, to the. natural flow of the water of the stream, in its accustomed channel, in-diminished in quantity and unimpaired in qualitju
   Shauck, J.

It appears, not only from the portions, of the charge contained in the foregoing statement, but. from the entire charge, that the trial .judge was of the opinion. that the terms of the deed from Williams to the state conclusively fixed, the charr acter of the land conveyed, as lands .to be used, not for the purpose of the construction of the canal, but in aid of the canal fund. In the view thus presented, the state could acquire lands for the purpose of such construction only by appropriation. This view of the law must have controlled the jury, and it led to the instruction given as to the effect of the deeds from the state to May and Kirkum. These instructions, considered together, resulted in the conclusion that by the later deeds the state was necessarily divested of all the title' in the lots named which it had acquired by the deeds from Williams, notwithstanding that in the meantime it had constructed the canal, and the substituted channel for Wolf Run.

This view is quite at variance with the provisions of the acts of February 4, 1825 (2 Chase, 1472), and February 7, 1826 ( 24 O. L.,-58). These acts coritemplated that “lands," waters and streams” - would be acquired by the state' for the actual construction of its canals, including-“feeders, dikes, locks, dams- and such other works and devices as they (the canal commissioners) may .think proper for making said improvement's,” and lots and' lands not needed for the construction and operation of the canals, but .acquired by donation or otherwise, to be sold or leased and the proceeds used in aid of such construction. The effect of the legislation looking to the establishment- Of the canal system of the state was that it acquired an unrestricted title in fee to all the lands of which it in any manner took possession for the purposes of such construction. Malone v. Toledo, 34 Ohio St., 541; Ohio ex rel. v. The P., C., C. & St. L. Ry. Co., ante, 189. It follows that if the state actually devoted the lands in' question to any of the numerous purposes of construction ■ above quoted, they thereby became, in contemplation of the statute, a part of the canal system. The circumstances under which the Williams deed was executed would indicate that it was then contemplated that the lots would be used as they in fact were used; that is, partly for canal construction, and partly in aid of the canal fund. It was not a deed of gift, and it contained no such restrictions as would be effective to prevent its use by the state for either or both of the purposes'indicated. When interpreted in connection with the provisions of the statute under which it was executed, it is entirely clear that it did not limit the power of the state to use the lands as indicated in the instructions given and in refusals to instruct as requested.

The view that the deed from Williams to the state gave to the lots the unchangeable character of lands devoted to the aid of the canal fund, and incapable of being devoted to the purpose 'of canal construction, led to the effect given by the court to the subsequent deeds from the state to Ketchum and May, since it in effect determined that those deeds divested the state of all the title it had acquired from Williams unless there had been a distinct appropriation of a portion of the lots for the purpose of construction, and that appropriation was elsewhere defined to be the exercise by the state of its power of eminent domain. It is not thought by counsel for the defendant in error that the act of February, 7, 1826, authorized the canal commissioners to sell and the governor to convey any portion of the canals, and the statute would not admit of that view. The only purpose then prompting the general assembly was the establishment and maintenance of the system of canals. The lands in controversy are in and contiguous to the basin next below the portage summit level. Within the two miles of this basin and north of it are more than twenty locks, and the waters stored in the basin and those conducted through the substituted channel of Wolf Run are used in locking boats to and from the level of the Cuyahoga valley. If it were now an open question it would not seem difficult to demonstrate that the basin and the channel are necessary to the operation of the canal. But that they are, was conclusively determined by the commisioners when they constructed them as a part of the canal.

It is agreed by counsel that the waters of Wolf Run, at a level below that of the basin in dispute, are used for locking boats and the surplus for hydraulic purposes. The authority of the canal commissioners to sell was conferred and restricted by the second section of the act of February 7, 1826: ‘•That the canal commissioners are hereby authorized and empowered to sell all such lands and town lots as heretofore have been, or may hereafter be given, granted or ceded to the state for the benefit of the canal fund, other than those which ■ are situated at points or places on or adjoining the line of the Ohio canals where the surplus water produced by said canals can be advantageously used for hydraulic purposes. ’ ’ The authority of the governor to grant did not exceed that of the commission to sell.

It affirmatively appears from the plat of the former proprietors that the disputed boundary of these lots was not located when the plat was made. The plaintiff, not being in possession, was not entitled to recover until she had established her own title. It was incumbent upon her to show a subsequent location of such boundary inconsistent with the present claim of the state. Whether the voluminous bill of exceptions contains any evidence to establish such location is a question whose determination would serve no useful purpose in view of the conclusions already stated. The same observation may be made of the other questions presented by the record and argued by counsel.

The judgments of the cwcuit court and the court of common pleas will be reversed.  