
    Woolever v. Stewart.
    1. The act of January 31, 1871 (68 OhioL. 15), in so far as it requires the owner of a dam constructed across a stream not navigable, and who has enjoyed the adverse use of such dam for the period of twenty-one years, to construct and maintain, at his own expense, a chute or pas- ' sage-way over the same for fish, is unconstitutional. Whether the act is valid where the adverse use is less than twenty-one years, is not, decided.
    2. Where a cause is appealed from a justice of the peace to the court of common pleas, the latter court is limited, in its appellate jurisdiction, to the amount for which the justice is authorized to enter judgment.
    3. The clause in section 108 of the justice’s code of 1853, which authorized the defendant to withhold the amount of his claim which is in excess of the jurisdiction of tiie justice, and to make the same the subject of a subsequent action, does not relate to a claim for unliquidated damages. Where such is the nature of the claim the whole excess must, be remitted, or the justice is without jurisdiction to act upon the claim. '
    Error to the Court of Common Pleas of Ashtabula County. Reserved in tlie District Court.
    Stewart brought an action against Woolever before a justice of tlie peace to recover the sum of $300, for providing materials and constructing a chute or passage-way for fish over a dam across Grand river. Ho alleged that the defendant was the owner of an ■ undivided tliree-fourths of said dam, and the occupant of tlie whole, and that in virtue of proceedings had under the act of January 31, 1871 (68 Ohio L. 15), which were particularly set out, the erection of said chute or passageway and the providing of materials therefor, were let to him by the commissioners of said county, for which lie was to receive $1,000. Woolever to pay $750, and the opposite owner $250. The excess above $300 was remitted by the plaintiff below and judgment prayed for tliat amount.
    The defendant set up as a first defense a connected title from the state of Connecticut through intermediate conveyances to himself, without reservation or limitation, of the land on which his portion of said dam was erected, and a like title in the •opposite owner of the land on which the remainder of said dam was erected; and that said dam was erected across said river, which was non-navigable, over fifty years ago, at its present height, and that it had '.been continued at said height ever .since, for the purpose of supplying water to run a flouring mill owned by said defendant. Ho further averred that said chute or passage-way for fish was built by the plaintiff below, without his consent and against his protest.
    As a second defense he set up facts showing that said chute or passage-way was so carelessly constructed as to set the water back on the wheels that propelled the machinery of the mill, greatly retarding their motion and diminishing their power, to his damage in the sum of $1,000. He then averred, that he ■“ withheld from said suit all of said damages over $300,” and prayed judgment against the plaintiff for that sum.
    A demurrer was sustained in the common pleas to each of these defenses, and judgment given for the plaintiff below for the amount prayed for. On error to the district court the cause was reserved for decision by this court.
    
      W. P. Ilowlcmd and Simonds cfe Wado for plaintiff in error:
    1. The act of January 31, 1871 (6S Ohio L. 15), is in conflict with section 28 of article 2 of the state constitution, and section 10 of article 1 of the United States constitution. 16 Ohio, 540; 3 Ohio, 395; 21 Ohio St. 667; 8 Ohio St. 346; 24 Ohio St. 542; 17 N. Y. 195; 7 Jones (N. C.) 321; 66 Pa. St. 41; 6 Cranch, 131; 7 Cranch, 164; 6 Randolph, 245; 16 Ohio, 599 ; Society v. Wheeler, 2 Gall. 139 ; Dow v. Norris, 4 N. H. 16; Clark v. Clark, 10 N. H. 380; Greenlaw v. Greenlaw, 12 N. H. 200 ; Kennet's petition, 4 Foster, 139 ; Goshorn v. Purcel, 11 Ohio St. 641; Rariden v. Holden, 15 Ohio St. 207, 209, 210; Miller v. Hine, 13 Ohio St. 565, 568; Cooley Const. Lim. 361, 369; Webster v. Cooper, 14 How. 488; Medford v. Learned, 16 Mass. 215 ; Gilpin v. Williams, 25 Ohio St. 283.
    2. It attempts to impose a tax or assessment in violation of section 1 of article 2, as limited by sections 1 and 2 of article 13. see 66 Pa. St. 48.
    The statute authorizes the taking of private property, without reference to the public welfare, without the consent of the owner and without compensation, and is therefor unconstitutional. 8 Ohio St. 346 ; 66 Pa. St. 41; McElory v. Goble, 6 Ohio St. 187; 2 Washb. R. P. 64, 65, 66, 67; 3 Eng. C. L. 371; Walker v. Board of Public Works, 16 Ohio, 540; Cooper v. Williams, 4 Ohio, 391; Washburn on Easements, 319 ; Buckingham v. Smith, 10 Ohio, 297; Gavitt v. Chambers, 3 Ohio, 495; Commissioners Land Fund v. Kempshall, 26 Wend. 404; Rules of the Chancellor, 17 Wend. 571; Gardom v. Trustees, 2 Johns. Ch. 162; 4 Ohio St. 167; 5 Ohio, 143; 11 Ohio 410 ; 21 Ohio St. 667; 4 Ohio St. 494; 21 Ohio St. 11.
    
      Worthway c6 Fitch, for defendant in error :
    We claim that the act of January 31, 1871, 68 Ohio L. 15, is constitutional. Revised Statutes, §§ 4219, 4220, 4221.
    1st. It is a mere police regulation. The police power of the state is merely invoked to require of Woolever and others, owners of dams, to erect chutes that fish may pass up the streams of the state. “ The police power of a state reaches to every interest and every subject of profit or enjoyment.” Cooley’s .Constitutional Limitations, 4 ed. ch. 16, p. 714, and definitions and cases there cited; and also opinion of Chief Justice Shaw in Commonwealth v. Alger, 7 Cushing, 84, 94.
    • 2d.' The power of the state to require every person to souse his property as not to injure that of another, or interfere with another’s rights, is within the police power of a state. And every holder of property, however absolute and unqualified his title may be, holds it under that implied liability, and subject to such reasonable restraints and regulations as may by the legislature be established. Tinnicum Fishing Co. v. Carter, 61 Penn. St. 31; Jordon v. Overseers of Dayton, 4 Ohio, 309; Cooper v. Hall, 5 Ohio, 322; Rhodes v. Cleveland, 10 Ohio, 160 ; Combs v. Akron, 15 Ohio, 480; Munn v. Illinois, 94 U. S. 124, 125 ; Collins v. Hatch, 18 Ohio St. 523; Bliss v. Kraus, 16 Ohio St. 55 ; Baker v. Cincinnati, 11 Ohio St. 534; Burckholter v. McConnellsville, 20 Ohio St. 308 ; 8 Ohio St. 333 ; Fox v. Fox, 24 Ohio St. 335.
    3d. The question of eminent domain does not form any part of this case. It is not in it. No property of Woolever is sought to be appropriated or taken from him in any such sense, as where land is taken for a railroad, a highway, a school-house site, or a cemetery. The act only requires that he shall so use his dam that the people living above it shall not bo deprived of the fish that would pass up the stream had the dam not been built; and he holds it subject to that condition. Commonwealth v. Chapin, 5 Pick. 202; 104 Mass. 446 ; 15 Wall. 500 ; Angell on Watercourses, 89.
    4th. If the provisions of the act are within the police power of the state, the right to exercise it is not barred. 4 Mass. 528; 94 U. S. 164; 49 N. H. 240.
    5th. The act is not without precedent. See Stoughton v. Baker, 4 Mass. 522 ; Commonwealth v. Chapin, 5 Pick. 199; Commonwealth v. Alger, 7 Cush. 98; Commonwealth v. Weatherhead, 110 Mass. 175 ; Hamy v. Compton, 36 N. J. L. 507.
    6th. The court will not declare the statute unconstitutional, unless the repugnancy between the two is manifest and unavoidable. It must be clearly shown to be in conflict. 13 Pick. (Mass.) 518, 625; Fletcher v. Peck, 4 Wheat. 518 ; 6 Cranch, 87, 128; 2 Ohio, 75; 1 Ohio St. 83; 10 Ohio, 237; 11 Ohio, 27; 19 Ohio, 195 ; Selemem v. McBride, 15 Ohio St. 573; Railroad Co. v. Clinton Co., 1 Ohio St. 77; Goshorn v. Purcell, 11 Ohio St. 641; 21 Ohio St. 14.
   Boynton, J.

We think the court erred in sustaining the demurrer of the plaintiff below, to the first defense of the answer.

It appears, from the facts stated therein, that the dam over which the chute or passage-way for fish was constructed, was built more than fifty years ago, and that the defendant and those under whom he claimed had enjoyed its use uninterruptedly, and without any complaint from upper riparian owners, during that period of time. He traced his title, through several mesne conveyances, to the state of Connecticut, and alleged that there was no reservation therein, or limitation upon the right or interest that they purported to convey. The-river across which the dam was constructed was non-navigable. No compensation was awarded for any injury to his property, or for that portion taken for the construction of the chute.

From these facts, there is little difficulty in solving the questions arising upon the assignments of error. For if it be granted that the upper riparian' proprietors of land on a non-navigable stream have the right to the free and unobstructed, passage of lish from the waters below to those adjoining their lands, or, where they own the bed of the stream, to the waters covering such bed, it is a right that inay be lost by adverse use in another; and the uninterrupted use and enjoyment of a dam across such stream, in the assertion of a right to such use, continued for the period of twenty-one years, are as conclusive of the right to such enjoyment in the future, as if the same were acquired by grant. The right of the upper owners to the free passage of lish up the river to their fisheries, is certainly no higher than their right to be protected against injuries resulting from setting water back upon their lands, and nó principle seems to be more firmly settled, than that the-exercise of such right adversely' by a lower owner for the period of twenty-one years, ripens into the right to continue such use, although none in fact existed before. Angelí on Watercourses, § 208, et seq.

The right by such use becomes vested, and is as fully within the protection afforded by the constitution against legislátive interference, as any other, however acquired. Assuming, therefore,, without deciding the point, that a lower owner has no right to obstruct the passage of fish up anon-navigable stream, by the erection of a dam across the same, or otherwise, to the injury of those above, they alone can complain, and if they permit an adverse enjoyment to ripen into a title, the right to cause such obstruction to be removed, is gone. Carter v. Murcot, 4 Burr. 2162. See also Bristow v. Cormican, 3 L. R. App. Cas. 666.

This is the condition of the present case. The right to the unmolested use of tbe dam and to tbe bed of tbe stream, at the time the chute or passage-way was constructed, and at the time the statute was enacted, was the private property of the defendant below. It, therefore, could be taken from him only by observing the requirements of the constitution. To the extent his property was taken for public use, he was entitled to compensation, and unless required -for such use it could not be taken at all. Much less could the legislature require him to perform labor upon it, or be at any expense in fitting it for public enjoyment. The act of January 31, 1871, .under which the passage-way was constructed, seems founded on the doctrine that the right of the owner of the dam to construct the same across the river, although he may own to the thread of the stream, is subject to the implied limitation that he keep open a sufficient passage-way ffcr fish to the water above; and cases were cited in argument, from Massachusetts, which recognize such limitation to be well established in that commonwealth, whatever tlie rule may be elsewhere.

On the other hand, there are many well-considered cases, which deny the existence of any such limitation where the stream is non-navigable, and the adjoining owner’s boundary extends to the thread of the stream. Hargrave Law Tr. 5; People v. Platt, 17 Johns. 211; State v. Glen, 7 Jones N. C. 321. ¥e need not determine in the present case which line of decisions is correct, when applied to a dam newly erected, as the unconstitutionality of the act when applied to the facts stated in the answer is clearly established. If there was an implied obligation resting on the owner of the dam, to keep a way open for the passage of fish to the waters above, it was for the benefit of the upper owners, and for them only; and if they suffered an adverse use to ripen into an adverse right, the right thus acquired could neither be destroyed nor impaired by legislation. Cooley’s Const. Lim. 362, and note.

The demurrer to the facts stated as a second defense was properly sustained.

The original action having been brought before a justice of the peace, the jurisdiction of the court of common pleas, on appeal, was limited in amount to the sum which was within the jurisdiction of the justice. This the defendant seems to concede by asking a judgment for only $300, on a counterclaim amounting to $1,000. But his claim was one for unliquidated damages, and, evidently believing that the right to divide the claim, and to withhold for future recovery all in excess of the sum for which the justice was permitted to enter judgment, was authorized by section 108 of the justices’ code, he withheld such excess and prayed a judgment for $300. This he was not authorized to do. The clause of the section which authorized a defendant to withhold the sum in excess of the jurisdiction of the justice, and to make the same the subject of a subsequent action against the plaintiff, does not relate to a claim for an unliquidated demand. If it did, it would give a defendant the benefit of two trials, to determine the whole amount to be recovered, and this without doubt would often result in inconsistent judgments. See Swan’s Treatise, 11 ed. 801. Where the demand set up is unliquidated, and exceeds the sum for which the justice is authorized to render judgment, the excess must be entirely remitted, or the justice is without jurisdiction to take action upon the claim.

Judgment reversed and cause remanded for further proceedin gs.  