
    The State, ex rel. Crabbe, Atty. Genl., v. The Middletown Hydraulic Co.
    
      Canals — Title to water — Middletown feeder to Miami and Erie Canal — Grant to state for navigation purposes — Successor of grantor entitled to excess ivater over state’s requirements.
    
    (No. 19207
    Decided February 15, 1927.)
    In Quo Warranto.
    
      Mr. C. C. Crabbe, attorney general, Mr. J. C. Williamson, Mr. Chas. C. Williams, Mr. Herbert D. Mills and Mr. W. Bale Bunifon, for relator.
    
      Mr. B. F. Harwite, Mr. J. J. Muir and Mr. John Weld Peck, for defendant.
    
      Mr. James B. Clark, Mr. Wm. J. McCauley and Mr. John E. Safer, amici curiae.
    
   By the Court.

The millrace of Abner Enoch was located upon or in a natural bayou of the Great Miami river prior to July 28, 1825, and the bayou had at that time been appropriated by him for a millrace.

The flow of water in the bayou had been augmented by the construction of a brush dam across the Great Miami river by Abner Enoch prior to July 28, 1825, and the use of the waters of the bayou thus augmented had been appropriated by him.

The state acquired its right, by grant from Abner Enoch, to a joint use with him of the water from the pool created by the brush dam, and a joint use with him of the millrace for canal navigation purposes. The state entered into such joint use, and has continued ever since in such use under such grant.

The state under such grant acquired the right to take all the water it could use for navigation purposes, without damage to the use reserved in the grant. The state was never able to use, for navigation purposes, in excess of 8,000 cubic feet of water per minute.

The defendant and its predecessors in title have used the water in excess of the 8,000 cubic feet of water per minute used by the state, to the full extent of their requirements, ever since the date of such grant to the state.

Since the year 1871 the defendant has never used, at the point of distribution to its several lessees in the city of Middletown, Ohio, less than 18,515.01 cubic feet per minute, nor more than 22,120.32 cubic feet per minute, and for the last 19 years has used 19,463.51 cubic feet per minute.

The defendant has title as against the state to the use of 19,463.51 cubic feet of water per minute in excess of 8,000 cubic feet per minute, to which the state has title, through the state feeder at the dam next above the city of Middletown, Ohio, plus such waste as necessarily occurs in transit and in the distribution to the several lessees of defendant at the city of Middletown.

Judgment for defendant.

Marshall, C. J., Day, Allen, Kinkade, Robinson and Matthias, JJ., concur.

Jones, J.

The legal questions controlling this case were decided on the demurrer to the answer, reported in 114 Ohio St., at page 437, 151 N. E., 653. My reasons for non-concurrence in this judgment appear in my dissenting opinion therein.  