
    Miller v. Wisenberger.
    
      Ohio Canal system — Possession and use of lands and streams m construction of — When merely incidental or indirect — May not vest fee in the state — Rights of landowner and state — Backing of water from dam does not cause appropriation of land .by state, when.
    
    1. Where the possession and use of lands or streams in the construction of the Ohio canal system were merely incidental, constructive or indirect, and not of a character to fairly apprise both the officers of the state and the owners of the lands, that such lands or streams were appropriated and used in the construction of the canals, no fee to such lands or streams vested in the state.
    2. Section 8 of the canal act of 1825 should be so construed as to fairly carry out the intention and understanding of the officers of the state on the one hand, and the land owner on the other, in each case, as near as the same can be ascertained from what was done, and the situation and surroundings of the premises in question.
    3. The mere incidental backing of water up a stream caused by the erection of a dam across a river, used as a part of the canal system, such stream flowing into said river and remaining in a state of nature, except as slightly raised by such back water, does not constitute such an appropriation and use of the bed of the stream for canal purposes as to vest the fee of such stream in the state.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Defiance county.
    The action was brought before a justice of the peace and appealed to the court of common pleas, where a petition was filed by the plaintiff below, defendant in error here, for trespass upon real estate and the removal of a boat load of sand taken from a sand bar near the west bank of the Auglaize river. The answer denied that the plaintiff was the owner of the premises, and averred that the premises, the bed of the river, were owned by the state of Ohio as a part of its canal system, and that the defendant was authorized by the state to take and remove the sand in question. The reply denied the averments of the answer.
    A jury was waived and the cause was heard by the court upon an agreed state of facts, and upon the request of the parties the court found its conclusions of fact separate from its conclusions of law.'
    Conclusions of Fact.
    “1. That, on the 9th day of August, 1824, the lands described in the petition, were duly granted by the United States of America, to one Horatio G. Phillips, his heirs and assigns, in fee simple, forever. That, on the 19th day of October, 1853, the said Horatio G. Phillips, duly conveyed to one Juliet H. Bouton, her heirs and assigns, in fee simple, forever, one hundred (100) acres of said land, more or less, together with all and singular the privileges and ap: purtenances thereunto belonging, that portion of said land so conveyed, being bounded on the south and east by the Auglaize river.
    
      “2. That the sand bar, hereinafter mentioned and referred to, is situated in channel of said Auglaize river, on the east side of said lands so conveyed by the said Phillips, to said Bouton, and between low-water mark, along the the east side of said lands, and the central thread of the stream of said river.
    “3. That said Auglaize river flows, in a general northerly direction, from the south line of said land conveyed to the said Bouton, as aforesaid, to the Maumee river, where at a distance of about one (1) mile north from said sand bar it empties into said Maumee river. That said Maumee river is formed by the junction of the St. Joseph and St. Marys rivers, at the city Ft. Wayne, Indiana, from whence it flows, in a general northeasterly direction, to Maumee Bay, into which it empties, at or near the city of Toledo, Ohio.
    
      
      “4. That, between the years of 1837 and 1842, the canal commissioners of the state of Ohio, as a part of the canal system of said state for the purpose of making slack-water for the Wabash and Erie canal, now part of the Miami and Erie canal, and forming a reservoir and feeder therefor, constructed a dam across the said Maumee river, at a distance of about three and one-half (3-J) miles below the place where said Auglaize river empties into said Maumee river, and following the course of said rivers, at the distance of about four and one half (4J) miles below said sand bar, the said sand bar being situated about one (1) mile above the place where said Auglaize river empties into said Maumee river.
    “5. That said canal was constructed to and does enter and unite with the Maumee river at a distance of about 1500 feet above and west of the place where said Auglaize river empties into said Maumee river; that, by the construction of said dam, slack water was made in said Maumee river to above, west and beyond the place where said canal enters it, and said Maumee river has ever since been and is used for slack water navigation, as a part of said canal, from the place where said canal so enters said river, to about 1,500 feet above and east of said dam, at Independence, where said canal leaves said Maumee river, and runs thence, outside of the channel of said river to Texas, a distance of about twenty-six (26) miles from said place where it leaves said river at Independence. That the whole of said twenty-six miles of canal, from Independence to Texas, was constructed to be, and is wholly supplied with water by and from the slack water, feeder and reservoir formed by said dam at Independence, by means of a feeder with feeder gates, from said Maumee river to said canal, constructed and situated between the place where said canal leaves said river and said dam at Independence. That said Maumee river at the place where it is entered by said canal is between 400 and 500 feet wide, and is wider from thence to said dam at Independence; and the tow-path of said canal, between the places where it so enters and leaves said river, extends along the north side thereof, and on the opposite side thereof, from that at which said Auglaize river empties into it.
    “6. That said dam was not intended or constructed for the purpose of making slack water navigation in said Auglaize river, but no artificial barriers were ever constructed between said Auglaize and Maumee rivers, or in or across said Auglaize river, between the place where the same empties into said Maumee river and the south line of said lands so granted to said Phillips as aforesaid. That, at the time of the construction of said dam, there was a certain road and public highway on the lands aforesaid, which extended through and crossed said Auglaize river at the distance of about twelve hundred feet above, beyond and south of said sand bar by means of a certain ford in, through and across said river; and the west bank of said Auglaize river, along the east side of the lands aforesaid, and at and opposite said ford and sand bar, was a gradually sloping bank. That, by the construction of said dam, the waters of said Auglaize river were, ever since have been, and still are raised, and set back from the place where the same enters the Maumee river, as aforesaid, and made, and kept two and one-half feet deeper than they theretofore were, in the channel of said Auglaize river, along the east side of the lands aforesaid, and at and over the places where said ford was, and where said sand bar is situated; and low-water mark on the west bank of said river, along the east side of the lands aforesaid, and at and opposite to said sand bar and ford raised and set further back from the central thread of said river. That, by the construction of said dam, and the consequent raising and deepening of the waters of said Auglaize river, at and over .said ford as aforesaid, said ford and public road and highway across said river was destroyed, and was, and ever since has been and is made impassable and useless; but, it does not appear herein, that by the construction of said dam, or the consequent raising and deepening of the Avaters of said Auglaize river, the waters of said river were, or are, or ever have been set back or caused to flow beyond and west of said sloping'west bank of said river, or over or upon the lands aforesaid, or any part thereof, which was then or are now situated to the westward of the west line of said sloping west bank of said Auglaize river.
    “7. That on the 15th day of May, 1891, the said Juliet H. Bouton, for and in consideration of the sum of fifty dollars ($50.00) to her in hand paid by the plaintiff, duly granted to said plaintiff, the exclusive right, in so far as she had the same, to take, and remove sand and gravel from said sand bar for the period of one year, beginning on said 15th day of May, 1891, and ending on the 15th day of May, 1892.
    “S. That all the aforesaid facts, touching the construction of said canal and said dam, and the effect thereof, in setting the said low-water mark on the west bank of said Auglaize river, along the east side of said lands, back from the center of said river, and raising and deepening the waters of said river, where said lands are bounded thereby, and at the place where said sand bar is situated, the said Phillips, at all times after the construction of said dam and during his ownership of said lands, and the said Bouton, at and at all times after the conveyance of said lands to her, and the said plaintiff, at and at all times since the granting by the said Bouton to him, of said exclusive right to take and remove sand and gravel from said sand bar, had full notice and knowledge.
    “9. That, ever since the said conveyance to her, of the lands aforesaid, the said Juliet H. Bouton and her licensees, have taken and removed sand and gravel from the bed of said Auglaize river, between the central thread of the stream and low-water mark on'the west bank of said river, along the east side of the lands aforesaid, but of this fact neither the state, nor its officers, had any knowledge.
    “10. That, in the month of October, 1891, the defendant, George Miller, took and removed from said sand bar between low-water mark, on the west bank of said Auglaize river, along the east side of the aforesaid lands of said Bouton, as low water line was fixed by the construction of said dam at Independence and the central thread of the stream of said river, and from under and beneath the slack water made in said river, by said dam at Indpendence, 2,100 bushels of sand, Which was then and there of the value of one and one-half cents per bushel, amounting to thirty-one dollars and fifty cents ($31.50).”
    Upon the facts so found the court rendered judgment in favor of the plaintiff below for $31.50 and costs, to which the defendant excepted and took and filed a bill of exceptions embracing the facts as agreed upon by the parties. A motion for a new trial was filed and overruled, to which proper exceptions were taken.
    The circuit court affirmed the judgment, and thereupon the plaintiff in error, defendant below, filed his petition in error in this court, seeking to reverse the judgments of the courts below.
    
      Harris & Cameron, for plaintiffs in error.
    In Ohio each riparian land owner along a navigable river owns to the middle of the stream, subject to the easement of navigation. Gavit v. Chambers, 3 Ohio, 496; Lembeck v. Nye, 47 Ohio St., 348.
    At the time of building the canal and down to October 19, 1859, Mr. Phillips, and since then Mrs. Bouton, have owned to the center of the Auglaize river, unléss the title to so much thereof as was overflowed and water set back on for canal purposes was vested in the state by the occupation of the premises for canal purposes. Barney v. Keokuk, 94 U. S., 338; Polker v. Bird, 137 U. S., 672; Hardin v. Jordan, 140 U. S., 763; Scranton v. Wheeler, 6 C. C. A., 592, et seq; Railway Co. v. Butler, 159 U. S., 86; 2 Blk. Com., 18; 1 Kent’s Com., p. 3, note.
    That there is an easement for the purpose of a waterway over the water does not affect the title. Goodtitle v. Alkire, 1 Burr., 133; Winton, Lessor v. Cornish, 5 Ohio, 477.
    If it were possible that a fee simple estate could be enquired in premises devoted to canal purposes, the state took title to an estate in fee simple therein and not a lesser estate, or an easement. Mayor of Hoboken v. Pa. R. R. Co., 124 U. S., 656; Ill. R. R. Co. v. Ill., 146 U. S., 387; Shively v. Bowlby, 152 U. S.; Kankauna Water Power Co. v. Green Bay, etc., 142 U. S., 254; Lessee of Blanchard v. Porter, 11 Ohio, 138; 2 Blk. Com., 18; Tyler on Ejectment, p. 43; Matter of N. Y. C. & H. R. Ry. Co., 77 N. Y., 248; Dens v. Wright, 1 Peters C. C., 64; Dunlap v. Steston, 4 Mason’s Rep., 349; Storer v. Freeman, 6 Mass., 435; 3 Kent’s Com., 427; Carpenter v. State, 12 Ohio St., 457; Ryan v. Brown, 18 Mich., 186; Zemlock v. U. S., 73 Wis., 363; Cornelius v. Glenn, 7 Jones, 321; 2 Chase Stat., p. 1175.
    This statute follows the New York Canal Act, which is said to have been modeled after the English statute of 52 Geo., III Ch. 47, which was construed by the Court of King’s Bench in The King v.The Comrs. of the Navigation, 5 Ad. & El., 804.
    When the state takes land for its own purposes, it is presumed to take in fee. Craig v. Mayer, 53 Pa., 477; Randolph Em. Dom., Sec. 205; Nelson v. Fleming, 56 Ind., 310; Holdman v. Penn. R. R., 50 Pa. St., 425; Mill’s Em. Dom., Sec. 50.
    When the statute prescribes that a fee shall vest, neither a less estate than a fee simple nor an easement may be taken, if it is possible to acquire a fee. Randolph Em. Dom., Sec. 203; Lewis Em. Dom., Sec. 278; Roanoke v. Beckowitz, 80 Va., 616; Watson v. Asquackanonck Co., 36 N. J. L., 195; DeKamp v. R. R. Co., 47 N. J. L., 43; 47 N. J. L., 518; Water Works Coms. v. Amsterdam, 96 N. Y., 351; Park Com. v. Armstrong, 45 N. Y., 234; Ohio ex rel. v. Railway Co., 53 Ohio St., 243; Idem, 247; Cooper v. Williams, 4 Ohio, 230.
    First — The place from which said sand was taken is part of the canal system because it is part of the slack-water improvement.
    The Wabash and Erie canal was built under the act of February 4, 1825 (2 Chase, 1470), and the amendments and supplements thereto, viz: Act of December 31, 1831 (3 Chase, 1915), Ordering Canals from Dayton to Defiance; February 13, 1832 (3 Chase, 1917), Making Act of 1825 Applicable to all Canals; March 3, 1834 (32 O. L., 439), Accepting Lands for Wabash and Erie Canal; March 3, 1834 (32 O. L., 308), Establishing Wabash and Erie Canal; March 3, 1834 (1 Cur., 149), Extending Time for Obtaining Compensation; March 4, 1836 (1 Cur., 231), Commissioners Superceded by Board of Public Works; March 16, 1838 (1 Cur., 431), Board of Canal Commissioners Revived; and the act of February 4, 1825, Revived; February 4, 1839 (1 Cur., 504), Extending Provisions of Sec. 8, act 1825, to all Public Works Under Charge of Canal Commissioners.
    If the public in raising a street allow the filling to slide or encroach on the adjoining land it is a taking. Bradwell v. City of Kansas, 75 Mo., 213; Dodson v. Cincinnati, 34 Ohio St., 276.
    It makes no difference that the improvement does not abutt on the premises affected. Keating v. Cin., 38 Ohio St., 141; Vanderlip v. Grand Rapids, 73 Mich., 522; Lewis Em. Dom., Secs., 101, 102, 151.
    Second — The premises are part of the canal system, because they constitute a portion of the reservoir for the storage of water for the 26 miles of canal between Independence and the village of Texas. 4 Ohio, 285, and 10 Ohio, 281.
    It is said the appropriation or taking of this land was not necessary. This was to be determined by the commissioners, and if they did use the lands the necessity is conclusively presumed in the absence of the impeachment of the commissioners’ action for. fraud. 4 Ohio, 283; State v. Snook, 53 Ohio St., 521; Backus v. Depot Co., 169 U. S., 568.
    
      (a) The use is not the ordinary use of the water of the stream or the bed of the stream, for navigation. .The navigation, for which the public have an easement in the river bed, and the use of the water in the river is the usual navigation and use of the river itself, not the navigation of an artificial canal connecting far distant parts of the state. Walker v. Board of Pub. Works, 16 Ohio, 540; S. C. 100 Amer. Dec., 154; Woodruff v. N. Mining Co., 18 Fed. Rep., 754; Canal Comrs. v. The People, 5 Wend., 423; Peen. v. Bridge Co., 18 How. U. S., 421; Morgan v. King, 35 N. Y., 454; Bridge Co. v. Page, 83 N. Y., 178; Smith v. Rochester, 92 N. Y., 464; Water Co. v. Green Bay, 142 U. S., 254.
    
      (b) The legislature of the state of Ohio had no intention and made no claim that it had the right to take lands, streams, and waters in its navigable rivers for canal purposes without compensation. The law expressly provides for making compensation for their use, for or in connection with the canal, and actually paid large sums of money for such lands, streams and waters. Pumpelly v. Canal Co., 13 Wall., 182.
    (c) Because the test of the acquisition of the. land is not whether the owner is injured or his rights invaded; but does the state use it as a part of or occupy it for purposes connected with its canal system; if so, the title in fee simple to the premises so used or occupied vests in the state.
    The statute makes provisions for cases (1) where there is no damage, (2) where the damage is equal to or exceeded by the benefits, and (3) where the damage exceeds the benefits. It is not in the last case only that the fee simple vests in the state, but in any case where land, streams or waters are used for the canals, or where any feeders, reservoirs, dyke., works or device are made part of the canal system. Blair v. Kiger, 12 N. E. Rep., 293.
    By the terms of the act of Fberuary 13, 1832, reservoirs are expressly enumerated as part of the “other works” appertaining to said canals. 3 Chase Statutes, 1817; Act of February 27, 1849; 2 Cur., 1474; Sec. 13, Act of April 4, 1859, 4 Cur., 3283.
    Third — The place from which the sand was taken is part of the canal system because it was actually appropriated by the state under its rights of eminent domain.
    The appropriations for the Miami & Erie canal system were made under the Ohio Constitution of 1802, which did not, as the present constitution does, require compensation to be first paid, or secured by the deposit of money. (Art VIII, Sec. 2, Con. 1802; Art. 1, Sec. 19, Con. 1851).
    The fifth amendment to the Federal Constitution, though adopted before Ohio was admitted into the Union, has no application to or restriction of state legislation relative to appropriating private property. Banon v. The Mayor, etc., 7 Peters, 245; Withers v. Buckley, 20 How., 84.
    In some of the amendments of the act of 1825 “reservoirs” and “bridges” are expressly enumerated as part of the “works” and “devices” referred to in the original act. (Sec. 8, act February 4, 1825; act February 4, 1829; act December 31, 1831; act February 13, 1832; March 3, 1834; April 4, 1850, S. & 0.1249).
    The land at the place from which the sand in dispute was taken was actually appropriated as part of the canal. McCalmot v. Whittaker, 3 Rawle, 84.
    
      
      “Aqua currit et debet eurrere ut eurrere solebat” is a maxim of the law. Mills on Em. Dom., Sec. 30; State v. Railway Co., 53 Ohio St., 189; State v. Snook, 53 Ohio St., 521.
    The value of the land or the nature of the improvements thereon does not affect the result. “A man cannot lose title to his lands hy leaving them in their natural state without improvements, or forfeit them by non-use.” McMurray v. Baltimore, 54 Md., 103; Pastorius v. Fisher, 1 Rawle, 271; Pollock v. Ship Building Co., 56 Ohio St., 655.
    Land in the bed of a navigable river and under water can be appropriated. Kerr v. Railway Co., 127 N. Y., 269; S. C. 27 N. E. Rep., 833; Oromorod v. Railway Co., 21 Blatch., 106; S. C. 13 Fed. Rep., 370; In re Railway Co. 77 N. Y., 248; In re Railway Co., 89 N. Y., 454, affirming same case, 27 Hun., 57; Woodruff v. Gravel Co., 18 Fed. Rep., 757; Ryan v. Brown, 18 Mich., 196; S. C. 100 Amer. Dec., 154; Brewing Co. v. Jarvis, 30 Mich., 308; Eaton v. Boston, C. & M. R., 51 N. H., 504; 12 Ohio St., 457.
    Whether raising water in a navigable river would constitute an appropriation, was in issue before the New York court of appeals in a case where a dam, which was built to make a feeder in Blackwater river, raised the water of the river. Benedict v. State, 24 N. E., 314; Shaver v. Eldred, N. Y. Ct. Ap. (decided May 3, 1889); Wright v. Eldred, 46 Hun., 12; Pumpelly v. Canal Co., 13 Wall., 166; S. C. 20 Co., Op. Ed., p. 556.
    That the overflowing of land above a dam built for supplying water for a canal is an appropriation, demanding compensation in the manner provided by statute, has been decided by the supreme court of Wisconsin, the judge advocate general of the United States and the supreme court of the United States, and recognized by the congress of the United States. U. S. v. Jones, 109 U. S., 513; Booming Co. v. Jarvis, 30 Mich., 308; Water Co. v. Canal Co., 142 U. S., 254; City of Janesville v. Carpenter, 77 Wis.; S. C. 46 N. W. Rep, 128; Water Works Co. v. Burkhardt, 41 Ind., 364; Canal Co. v. The State, 53 Ind., 575; Nelson v. Fleming, 56 Ind., 310; 71 Ind., 208; Frank et al. v. Railway Co., 111 Ind., 132; Blair v. Kiger, 111 Ind., 193; Robinson v. Railway Co., 72 Pa. St., 316; Coal Co. v. Price, 81 Pa. St., 156.
    Second — The use which the state by constructing its canal system has made of the premises in question, if made by a private person under claim of right would have entitled him to an easement in the premises; (hence, the same use by the state under its power of eminent domain, by virtue of the statute, vested a fee in the state.
    Our supreme court have adopted from Mr. Angelí the following definition of an easement:
    “Service which one estate owes to another; or the right of doing something or having a privilege in one man’s estate for the advantage and convenience of another estate.” Morgan v. Mason, 20 Ohio, 402; Elliott v. Salle, 14 Ohio St., 10; Cooley on Torts, Sec. 586; Mill Co. v. Newman, 12 Pick., 467; Chase Stattes, p. 1472; Carpenter v. State, 12 Ohio St., 464.
    Under the constitution, by act of 1859, it was first enacted that an easement only should be taken for a canal in Ohio (56 O. L., 141). Washburn on Easements, p. 5.
    Backing water will ripen into an easement, though the banks are not overflowed or the owner seriously damaged. Hendrick v. Cook, 4 Ga., 241, 257; Ripka v. Sergeant, 7 Watts & S., 913; McMurray v. Baltimore, 54 Md., 103.
    Even drawing a line over land would ripen into an easement. Pollock v. Bildg. Co., 56 Ohio St., 655.
    In taking property under the power of eminent domain the legislature may enact what estate is necessary and proper and shall be vested under the taking. Malone v. Toledo, 34 Ohio St., 541; Hewyard v. The Mayor of N. Y., 3 Selden, 214; Rexford v. 
      Knight, 1 Kernam, 308; Report of Canal Comrs. for year 1890, p. 7; Shoemaker v. U. S., 147 U. S., 282.
    Third — The title to the premises in question, and the possession and control thereof was lost to Mr. Phillips and vested in the state. Mills on Em. Dom., Sec. 30.
    Before any canal was completed in Ohio the legislature put all slack water and reservoirs, constructed or to be constructed as a part of the canal system, in possession and control of the canal commissioners, and has since kept that board and its successors in possession and control of the whole canal system; and has prescribed penalties for any acts of dominion or control over any part thereof by other persons. Secs. 8, 9, 13, 18 and 19 of Act March 23, 1840, 1 Cur., 652; Act of March 16, 1839, 1 Cur., 558; Act of March 5,1839,1 Cur., 540; Act of March 16, 1838, 1 Cur., 431; Act of March 4, 1836, 1 Cur., 231; Act of February 13, 1832, 3 Chase, 1917; Act of January 31, 1826, 3 Chase, 1525; Act of April 4, 1859, 4 Cur., 3276.
    There are in Ohio more than forty other legislative enactments of like tenor and effect. Lewis on Em. Dom., Secs. 592, 593; Finn v. Prov. Gas Co., 99 Pa., 631; Randolph Em. Dom., Sec. 135; Rowan v. Portland, 9 B. Mon., 232.
    (а) There is nothing inconsistent in the state owning for public use, if occasion require, or the law so direct, anything that any private individual may own. In many of the states the title in fee simple to the lands under the navigable rivers is vested in the states. Indeed, under the ordinance of 1787 and the constitution of the United States, in the absence of the binding effect of the rule of property in Ohio above referred to, the title to all the navigable rivers would be vested in the state. Barney v. Keokuc, 94 U. S., 324.
    (б) That such right is within the limits of the power of eminent domain has .been frequently adjudged by the courts. Kerr v. Railway Co., 127 N. Y., 269.
    (e) The statute of 1825 and other statutes above cited expressly provide the title in fee simple to the premises shall vest in the state.
    In Ohio the bed of the river belongs to the owner of adjacent land. It belongs to him by virtue of his ownership of adjacent land, even though it is not included in the description of the land conveyed to him, or acquired by him by appropriation. The breadth or extent of the owner’s adjoining possessions or the manner in which he acquired title thereto is immaterial. The title vests in such adjacent owner by operation of law, if it is not expressly accepted from the premises conveyed and appropriated.
    Phillips had the right to sell and convey this land to the center of the stream and in so doing had a right to compute and could recover pay from the purchaser for the full number of acres to low water mark. Kamb v. Rickets, 11 Ohio, 311; Blanchard v. Porter, 11 Ohio, 138; Booth v. Hubbard, Admr., 8 Ohio St., 244; McColloch v. Aten, 2 Ohio, 307; Gould on Waters, Sec. 70.
    He had a right to dock out to, build on, fill in and use 'with or without improvements, at least to ordinary low water mark, so long as he did not interfere with the navigation of the river. City of St. Louis v. Rutz, 138 U. S., 226; S. C. Book, 34, p. 941; Walker v. Shepardson, 4 Wis., 486.
    These rights are property and cannot be taken without compensation. Lewis Em. Dom., Sec. 83; Yates v. City of Milwaukee, 77 U. S., 984; S. C. Book 19, 986.
    How wide this strip was does not appear, but it was wide enough to accommodate “the main travelled road between the north and south portions of the township.”
    The defendant in error claims the deepening of water in the river bed is not a taking. Conceding this, for the moment, the covering of the useful “gradually sloping bank” with water, and destroying its usefulness is a taking. Ashley v. Port Huron, 35 Mich., 296; Hooker v. New Haven & C. Co., 14 Conn., 146.
    The gradually sloping bank between the former low water mark and the westerly edge of the west bank of the river was and is real estate. It was useful to its owner. It was used for a road. It might have been used by the owner for many purposes, had it not been utilized by the state as a storage place for water to the partial or total exclusion of the owner. Pumpelly v. Green Bay Co., 13 Wal., 166; Woodruff v. N. B. G. & M. Co., 18 Fed. Rep., 753.
    As a matter of law the fee simple title vests in the state “from the fact alone that the tract of land was occupied by the state for purposes connected with its canal system.” Ohio ex rel v. Railroad Co., 53 Ohio St., 247.
    The right and easement of navigation that the public have in a navigable river does not include the right to the use of the banks of the river. Talbot v. Grace, 30 Ind., 389; Post v. Piersall, 22 Wend., 425; State v. Wilson, 42 Me., 9; Chambers v. Furray, 1 Yates (Pa.), 166; Bell v. Gough, 23 N. J., 624.
    River banks belonging to the adjacent land owner' are frequently a source of profit and are subject to appropriation. Walker v. Shepardson, 4 Wis., 495; Reg. v. Nav. Co., 5 Adol. & El., 804; Gould on Waters, Sec. 99, 103; Ensminger v. People, 47 Ill., 354; S. C. 95 Amer. Dec., 495.
    The owner of the land adjoining the stream owns to the center of the stream. The state became the adjacent land owner. The fee simple title was divested from Phillips and vested in the state. “No conveyance was necessary.” Water Works Co. v. Porter, 3 Hurleston & Colt, 300.
    It seems to us that the case at bar cannot be distinguished from Potomac Steamb. Co. v. Upper Potomac, 109 U. S., 672.
    
      In Wisconsin the rule is different. There the riparian owner holds the title in fee to the center of the stream, subject only to the right of navigation.
    The banks or bed of the river cannot there be taken for any public use without compensation to the owner. Hackstack v. Keshena Imp. Co., 66 Wis., 439;
    In Ohio the rule is the same as in Wisconsin. R. R. Co. v. Platt, 53 Ohio St., 254; Booming Co. v. Jarvis, 30 Mich., 308.
    Since our written argument was filed in this case the decision in Smith v. The State., 59 Ohio St., 278, has been announced; and a definition of “occupancy,” which would vest title in the state, is there given.
    
      John W. Slough, for defendant in error.
    If in damming the river the water urns caused to flow back over land that was dry land before the dam was built, of course the state would have to appropriate it and pay the owner what it was reasonably worth if he put in his claim within the time required by the law then in force; but where it was already covered with water no injury resulted to the owner of the land on either bank by raising the water a couple of feet in the river channel above what it was at low water mark. In fact it is a great and lasting benefit to all property owners along the slack water, Avhen the water is high the water flows just as though there was no dam in or across the river.
    The act of February 4th, 1825, says the commissioners may appropriate lands, waters, streams and material necessary for the prosecution of the improvement intended by this act.
    The owner of land on the bank of a river does not own the water in the river, he only has the right to use it to pass over it. June v. Purcell, 36 Ohio St., 396.
    The riparian owner can recover for land tortiously taken from the bed of the river. Gavit v. Chambers, 3 Ohio, 497.
    
      The canal commissioners had no use for the sand and gravel in the Auglaize river, and there is nothing to show that either the river bed, said sand, gravel or water of the Auglaize river was necessary for the use of the canal. McArthur v. Kelly, 5 Ohio, 145.
    What need had the canal commissioners with the sand and gravel in the Auglaize river more than a mile and a quarter away to make the canal navigable. This is certainly absurd, and yet this is virtually the claim of the plaintiff in error in this case.
    Certainly not for the use of the canal or its construction. It was not necessary for a feeder or reservoir for the Maumee was more than sufficient for that purpose. Malone v. City of Toledo, 28 Ohio St., 643; same case, 34 Ohio Stat., 546.
    We claim that this is against public policy and should not be sustained. The contract that plaintiff claims to have had with .the state is wholly void, even if the state did OAvn the land, for the reason that it Avas not let and entered into as the law of the state requires. No notice was ever given that tlie state intended to sell the sand to anybody.
    Why appropriate the bed of the Auglaize river if, by building the dam and raising the water a couple of feet, where water and river bed was before, no damage was done the land owners! There is no proof of any damage in the case. Cooper v. Hall, 5 Ohio, 322; McCord v. Iker, 12 Ohio, 389; McElroy v. Gable, 6 Ohio St., 188.
    As to the jurisdiction of the justice’s court, we think there is no doubt. Section Revised Statutes 590 and 591; O’Neal v. Blessing, 34 Ohio St., 33.
    The plaintiff in error claims he has a contract with the state for all the sand and gravel in the slack water of the Maumee and Auglaize rivers and it is by reason of this interest he is here in this case. In this, if your honor please, is where the danger lies. If this plaintiff in error is successful in this case, ten thousand people in the city of Defiance and twenty thousand more in the surrounding country will he at the mercy of one man for all the sand and gravel they may want for building purposes or making roads, instead of to the hundreds of land owners along the banks of these rivers.
    In other words, the state will have a monopoly of the whole business and will lease it out to the man who will pay the most, and the lessee will charge just what he may see fit, having no opposition.
    We find no authority where the bed of a river has been appropriated and the fee simple taken in the name of the state, but if there was any it certainly would have to be where it was necessary for the use and construction of the canal, and not like this case, where there can be no possible necessity for the same. Smith v. The State, 59 Ohio St., 278.
    
      B. B. Kingsbury, of counsel for defendant in error.
    It being. admitted that the original grantee from the United States, Phillips, owned, prior to the construction of the dam, the land in the bed of Auglaize river, opposite to the center of the channel, was the flowing back of the water occasioned by the construction of this dam, deepening it two and one-half feet, a taking, a seizure, an appropriation of this bed, so as to convert it into a fee simple title in the state of Ohio — it being thus regarded as “devoted to canal purposes?”
    Would Phillips have had any right of action against the person thus flowing back this water in the natural channel of the river? Cooper v. Hall, 5 Ohio, 320; McCord v. Iker, 12 Ohio, 387; McElroy v. Goble, 6 Ohio St., 187; Gas Light & C. Co. v. Freeland, 12 Ohio St., 392; Crawford v. Rambo, 44 Ohio St., 285.
    This case has also been cited with approval in other states. Garrett v. McKie, Richardson Law (S. C.), 444 S. C., 44 Am. Dec., 263; Dumont v. Kellogg, 
      29 Mich., 420; Hollister v. Union Co., 9 Conn., 436; Lansing v. Smith, 8 Cow., 146; Clark v. Saybrook, 21 Conn., 313; Snow v. Parsons, 28 Vt., 459; Tyler v. Wilkinson, 4 Mason, 397; Angell on Water Courses, Fifth Ed.,. Secs. 116- and 117; McKean v. Canal Co., 49 Pa. St., 439; Peel v. Atlanta, Ca., 8 S. Rep., 1787; Lewis on Eminent Domain, Secs. 235 and 236; Transportation Co. v. Chicago, 99 U. S., 642; Cooley Con. Lim., 5th Ed., p. 671.
    The law appropriating lands for canal purposes should, as against such riparian owners, have a strict construction. Corwin v. Cowan, 128 Ohio St., 633; Voight v. Ry. Co., 58 Ohio St., 163.
    A right acquired by the state through adverse user to divert water from a river into a stream flowing through plaintiff’s land, gives the state no right by adverse possession to lands under a stream, and hence no right to broaden and deepen its bed. Coleman v. State, 134 N. Y., 564; People v. Canal Appraisers, 17 Wend., 606; Cooley on Con. Lim., 527; Varick v. Smith, 9 Paige Chan., 547; Longstreet v. Harkrader, 17 Ohio St., 23.
    An easement in this case was all that was necessary and did not and does not preclude the real owner from exercising any right not conflicting with this. Barclay et al. v. Howell's Lessee, 6 Peters, 449; Hatheway v. Jackson, 15 Johns, 447; Day v. R. R. Co., 44 Ohio St., 406; Morgan v. Mason, 20 Ohio, 401; Phifer v. Cox, 21 Ohio St., 248.
    It is true that this court has decided in the case of Malone v. Toledo, 34 Ohio St., 541, that that part of the canal known as the Manhattan branch and including the premises of the plaintiff, had been appropriated by the state as a part of the Wabash and Erie canal, afterward known as the Miami canal, but was abandoned in 1869 and the deed of conveyance executed by the governor granted to the city of Toledo that portion in controversy, and the question, what title was thereby conveyed, was decided to be an absolute estate in fee. Cooper v. Williams, 5 Ohio, 244.
    But, again, the plaintiff claims that the doctrine of joint ownership by state and riparian proprietor of the bed of the stream would be a dangerous one and cites, not any judicial decision, but argument of counsel and report of canal commissioners. Now, joint ownership, or rather an easement, a quasi ownership in the state, is quite compatible with the ownership of a fee in the adjoining proprietors; one need only refer to the condition of our public highways to show that a fee simple with every right of enjoyment, of considerable value, may safely co-exist with a right on the part of the state to require right of passage over them without obstruction. Ingersoll v. Hunder, 12 Ohio, 527; Fox v. Hunt, 11 Ohio, 544; Lane v. Kennedy, 13 Ohio St., 47.
    This being a case of novel impression, the construction of the law should not be such as to deprive the owner of his property without due process of law, and if the law is obscure the construction should be such as to secure to both the state and to the owners of riparian property their rights respectively, so that if an easement will serve the purpose of the state, the fee should be allowed to rest in the owner. Argumentum ab inoonvenienti plurium valet in lege — an argument drawn from inconvenience is forcible in law. Broom’s Legal Maxims, p. 141,142; Egerton v.Brownlow, 4 H. L., Cas., p. 152; Mills on Eminent Domain, p. 61, Sec. 49; Lewis on Eminent Domain, Sec. 278; McComb v. Stewart, 40 Ohio St., 647.
    It would make wholly uncertain the out-boundaries of the lands owned by the riparian proprietors, promote dispute as to the real outlines and produce endless confusion. Gavit v. Chambers, 3 Ohio, 643.
    It would convert the rivers, Auglaize, Maumee and Tiffin, into an artificial lake, with all the consequences of fee simple ownership, as stated in the case of Lembeck v. Nye, 47 Ohio St., 336, quoted by the plaintiff.
    The state would then dictate the mode in which this should be enjoyed, rights of boating and fishing would be farmed; sand and gravel from the bed of the rivers, as now, would be peddled out; ice would become a pitiful monopoly of the lessee of the state. Anything which tends to establish a monopoly is against public policy. State v. Standard Oil Co., 49 Ohio St., 186.
    The cases cited by the plaintiff from New York and Indiana are cases where, like Malone v. Toledo, the possession of the canal lands has been within artificial boundaries. But the supreme court of Indiana has not been satisfied with the decisions in the case first made by it, to the effect that a fee simple title to the canal lands was vested in the state, and has limited it in subsequent decisions as much as possible. Shanklin v. Evansville, 55 Ind., 240; Logansport v. Shirk, 88 Ind., 569; Hydraulic Co. v. Butler, 91 Ind., 136; Shirk v. Commissioners, 106 Ind., 573; Collett v. Commissioners, 119 Ind., 27.
    It is further submitted that although the state may not be barred an adverse user of the premises continued for thirty-six years or more of the right to take sand and gravel from the place in question, yet on the principle of an equitable estoppel in a case where the state has limited and defined its own rights by a law, it is worthy of consideration whether a state may not be properly subject to the doctrines of estoppel, especially as there is no evidence in this case that the sand and gravel in question was used or to be used in pursuance of the original act. Bigelow on Estoppel, 1st Ed., p. 276; Reid v. State Ind., S. C. X. Reporter, p. 142; State v. Milk, 11 Bissel C. C., 197; Commonwealth v. Heirs of Andre, 3 Pick., 224; Commonwealth v. Pejepscut Proprietors, 10 Mass., 155; People v. Society, etc., 2 Paine, 545; State v. Bailey, 19 Ind., 452; People v. Maynard, 15 Mich., 463; Cahn v. Barnes, 5 Fed. Rep., 326; State v. Ober, 34 La. An., 359; Carver v. Jackson, 4 Peters, 1.
   Burkett, J.

We think that the conclusions of fact are correctly found from the agreed statement, and that the court properly refused to find the additional facts requested by the plaintiff in error.

Several questions have been argued, both orally and on brief, but the only question worthy of report is as to whether the sandbar in the river where the sand was taken is part of the canal system of the state.

The statute under which it is claimed this sandbar became part of the canal system, is section 8, of the act of February 4,1825, Chase’s Statutes, page 1475, 23 O. L., 56, which reads as follows:

“Section 8. That it shall and may be lawful for the said canal ■ commissioners, and each of them by themselves, and by any and every superintendent, agent and engineer, employed by them to enter upon, and take possession of, and use all and singular any lands, waters, streams, and materials, necessary for the prosecution of the improvements intended by this act; and to make all such canals, feeders, dykes, locks, dams and other works and devices as they may think proper for making said improvements, doing nevertheless, no unnecessary damage, and that in case any lands, waters, streams, or materials, taken and appropriated for any of the purposes aforesaid, shall not be given or granted to this state, it shall be the duty of the canal commissioners, on application being made to them by the owner or owners of any such lands, waters, streams or materials, to appoint by writing not less than three nor more than five discreet disinterested persons as appraisers, who shall before they enter upon the duties of their appointment, severally take an oath or affirmation, before some person authorized to administer oaths, faithfully and impartially to. perform the trust and duties required of them by this act, a certificate of which oath or affirmation, shall be filed with the secretary of the canal commissioners, and it shall be the duty of said appraisers, or a majority of them, to make a just and equitable estimate and appraisal of the loss or damage, if any, over and above the benefit and advantage to the respective owners and propriteors, or parties interested in the premises, so required for the purposes aforesaid, and the said appraisers, or a majority of them, shall make regular entries of their determination and appraisal, with an apt and sufficient description of the several premises, appropriated for the purposes aforesaid, in a book, or books, to be provided and kept by the canal commissioners, and certify and sign their names to such entries and appraisal, and in like manner certify their determination as to those several premises which will suffer no damage, or will be benefited more than injured by or in consequence of the works aforesaid, and the canal commissioners shall pay the damages so to be assessed and appraised, and the fee simple of the premises so appropriated shall be vested in this state; Provided, hotoever, that all such applications to the board of canal commissioners, for compensation for any lands, waters, streams, or materials so appropriated, shall be made within one year after such lands, waters, streams, or materials, shall have been taken posession of, by the said commissioners, for the purposes aforesaid.”

In the case of Malone v. Toledo, 34 Ohio St., 541; State v. Railway Co., 53 Ohio St., 189; State v. Snook, 53 Ohio St., 521; and State v. Griftner, 61 Ohio St., 201, the canal commissioners entered upon, took possession of, and used the premises in question in those cases in the construction and operation of the canals, and thereby a fee to the land vested in the state.

In the cases of Corwin v. Corwin, 12 Ohio St., 629, and Voight v. Railway Co., 58 Ohio St., 123, the land had been acquired by private canal companies which obtained only an easement for canal purposes from the land owners, and thereafter the state acquired such private canals from such companies and made them parts of the canal system of the state, and thereafter abandoned them, and this court held in those cases that the state acquired only the easement held by the canal companies, and not a fee-simple, for the reason that while the state had the power, under section 8 of the canal act, to enter upon, possess and use the lands for canal purposes, and thereby acquire a fee as against all who had any interest in the lands, yet as the former owners were out of posession and out of control and the private canal companies were in possession and control, the change from the canal companies to the state canal system-was not of a character to call the attention of the former land owners to the fact that their reversion was being taken by the state; and would not give them a reasonable opportunity to make application for compensation for such reversion. This clearly appears in the Corwin case, and that case controlled the decision of the Voight case.

In the case of Smith v. The State, 59 Ohio St., 278, this court held that for the state to acquire a fee to lands by occupancy and use for canal purposes, it was necessary that the occupancy by the state should be exclusive, and that it should be so open and notorious as to put the owner of the land on notice that the property had been taken by the state for its own with the purpose or appropriating it as part of its canal system.

The above cases clearly point out the rule by which the state could acquire the fee to lands for canal purposes. If the entry, use and possession by the state were open and notorious so as to inform the land owner that his land had been taken by the state for canal purposes, a fee vested in the state. But if the entry, possession or use was merely incidental, constructive or indirect, and not of such character as to apprise the canal commissioners that they were making the state liable, nor tbe land owner that his lands were so appropriated as to give him a claim against tbe state for taking and using tbe same for canal purposes, no title or fee vested in tbe state.

To vest a fee in tbe state, tbe entry, possession or use must have been of such an open and notorious character as to make it fairly apparent to both tbe officers of tbe state and tbe owners that tbe lands were taken and used for canal purposes.

This section of tbe statute should be fairly construed, not rigidly in favor of either party. It should be regarded by tbe courts at this late day as it was looked upon in tbe days when tbe canals were constructed, and to wrest the lands from tbe owners and vest a fee thereto in tbe state, facts should appear from which a court can clearly see that both parties knew or should have known at the time of tbe construction of tbe canals, that the lands in question in any particular case bad been appropriated and used for canal purposes.

Tbe mere backing up of water in a river, creek, run or ravine to an extent insufficient to seriously interfere with tbe use of tbe lands by tbe owner, could not have been regarded in those days, either by tbe officers of tbe state or tbe land owners, as an appropriation and use of sucb river, creek, run or ravine for canal purposes. What must have been then understood as an appropriation and use of lands and streams was an actual physical possession and use in the construction of tbe canals and feeders, dykes, locks and dams connected therewith so as to become a part of tbe canal system of the state. Sucb an appropriation was open and public notice to tbe land owner that be bad been deprived of bis property, and an invitation to him to make application for compensation.

' Tbe backing up of water in tbe Auglaize river, as shown by the finding of facts in this case, was not of a character to induce tbe canal commissioners to think that they had appropriated the stream for canal purposes so as to vest a fee to be paid for by the state; neither was it of a character to apprise the land owner that his lands had been so appropriated.

The use of the river at that point by deepening, it with backwater was not for the purpose of makin a reservoir, as in State v. Griftner, supra, but was a mere incident arising from the construction of the dam in the Maumee river some four and one-half nliles below. The Auglaize river was not in any manner used for slack-water navigation, for the storage or turning of boats, and it was not dredged or deepened for -canal purposes, and was not used as a part of the canal system unless this slight incidental backing of water constituted such use. We are clear that this was not sufficient, and that the court below correctly decided the case.

Judgment affirmed.  