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[473] provided that the railroad company should have the exclusive right during the term of the lease (ninety-nine years) "to use and occupy the property aforesaid, or so much thereof as may be necessary, for the purpose of constructing, maintaining, and operating a railroad thereon. Said company shall not disturb any vested rights or privileges of abutting property holders along said canal, and shall hold the state harmless from all loss or damage resulting to such property holders by reason of the construction and operation of said railroad."

The plaintiff further averred that the defendant was making preparations to build its road upon the line of the canal, and was threatening to take possession of his property without having acquired the rights and interests in the said lands and tenements belonging to the plaintiff, whose lands are located on both sides of the Hocking canal, about 5 miles north of the city of Lancaster, in Fairfield county, and without having purchased or acquired by condemnation or otherwise the right to enter upon said lands and to construct said railroad. That such road will constitute a permanent trespass upon plaintiff's property, and will place large ad[474]ditional *burdens upon his lands, which will render the same inconvenient and difficult of access; and great and irreparable injury will be done in the premises unless the defendant be restrained by an order of the court from taking possession of said canal and the said premises of plaintiff and constructing this railroad thereon.

from its junction with the Ohio canal in the vil-
lage of Carroll, Fairfield county, to its southeast-
ern terminus in the village of Nelsonville, Ath-
ens county, be and the same hereby is abandoned
for canal purposes, and the same shall not be
used for canal purposes during the pending of
the lease provided in the next section of this

act.

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The gist of the complaint lies in the allegation that the act of May 18, 1894, authorizing the abandonment of the canal, conflicts with that clause of the Constitution which provides that "no state shall pass any law impairing the obligation of contracts," and also with several provisions of the Constitution of Ohio not necessary to be here enumerated.

A general demurrer was filed to this petition, which was sustained by the court, and the petition dismissed. Plaintiff appealed the case to the circuit court, which also sustained the demurrer, whereupon plaintiff appealed the case to the supreme court of the state, which reversed the judgment of the circuit court, and ordered that the railroad company be enjoined from entering upon the lands of the plaintiff until it had condemned and paid for the additional burden of constructing and operating the railroad on the land, according to law. 58 Ohio St. 123, 50 N. E. 442.

Upon motion of the plaintiff the court certified that in the rendition of this judg ment it became material to determine whether the act of May 18, 1894, was repugnant to the contract clause of the Constitution, and ordered it to be further certified that the court adjudged that it was not in violation of or repugnant to such clause, and that such act was valid and binding upon the plaintiff. Whereupon plaintiff sued out a writ of error from this court.

Mr. J. B. Foraker submitted the cause

of this act.

torney general, or any two of them, a good and sufficient bond in the sum of $100,000, conditioned that said company will faithfully build said railroad in compliance with the condition and terms of this act, and upon failure to build said road within the time herein specified, they shall be liable to the state of Ohio in the full sum of $100,000 as stipulated damages. Sald Sec. 2. There is hereby granted the right, bond shall be executed and filed with the secrefranchise, and privilege of constructing, main-tary of state within ten days after the passage taining, and operating over, upon, and along the Hocking canal and property of the state of Ohio adjacent thereto, a railroad with single or double tracks, side tracks, switches, bridges, stations, and other structures usual and incidental to the operation of a railroad, to the Columbus, Hocking Valley, & Athens Railroad Company, its successors and assigns, for the term of ninety-nine years, renewable forever, for and in consideration of the payment by said company, its successors or assigns, to the treasurer of the state of Ohio, on the 1st day of July, 1894, of the sum of $50,000, and on the 1st day of January, 1900, and of each and every year thereafter, during the term of this lease, of the sum of $10,000 annual rental.

Sec. 3. Said instalment of $50,000 shall be paid into the state treasury before the construction of said railroad is begun, and for the remaining instalments of rental the state of Ohio shall have a first lien upon said railroad, together with its switches, side tracks, bridges, and other structures erected on said property of the state of Ohio, which shall be superior to any and all other lens of every kind upon the same. The said Columbus, Hocking Valley, & Athens Railroad Company shall further execute unto the state of Ohio, to be approved by the auditor of the state, secretary of state, and at

Sec. 4. In consideration of the payments aforesaid, said railroad company, its successors and assigns, shall have the exclusive right during the term aforesaid to use and occupy the property aforesaid, or so much thereof as may be necessary, for the purpose of constructing, maintaining, and operating a railroad thereon. Said company shall not disturb any vested rights or privileges of abutting property holders along said canal, and shall hold the state harmless from all loss or damage resulting to such property holders by reason of the construction and operation of said railroad: Provided, That when said railroad, its successors and assigns, cease to use said canal for railroad purposes, said canal property shall revert to the state for canal purposes.

Sec. 5. This act shall not be construed to prevent the levying and collecting of taxes on said railroad in the same manner as they are levied and collected on other railroad property in this

state.

Sec. 6. The work of constructing sald railroad shall be commenced within six months after the passage of this act, and the same shall be completed within two years thereafter.

Sec. 7. This act shall take effect and be in force from and after its passage.

for plaintiff in error. Messrs. T. E. Powell and D. J. Ryan were with him on the brief. U. S. Rev. Stat. § 709, includes all cases involving rights protected by the Federal Constitution, laws, and treaties, however created; and when a Federal question is clearly raised there is jurisdiction, however frivolous the objection.

New Orleans v. DeArmas, 9 Pet. 224, 9 L. ed. 109; Hall v. Jordan, 15 Wall. 393, 21 L. ed. 72.

When a writ of error is asked on the.

ground that a state law impairs the obligation of a contract, this court must determine whether a contract exists, and what is its construction and obligation.

Piqua Branch of State Bank v. Knoop, 16

How. 369, 14 L. ed. 977.

A Federal question arises when the allegation is that by statute a state made a contract, and by another violated it, and the

state court holds the latter statute valid.

The Binghamton Bridge, 3 Wall. 51, sub nom. Chenango Bridge Co. v. Binghamton Bridge Co. 18 L. ed. 137; Jefferson Branch Bank v. Skelly, 1 Black, 436, 17 L. ed. 173; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571; Delmas v. Merchants' Ins. Co. 14 Wall. 661, 20 L. ed. 757; Northwestern University v. Illinois, 99 U. S. 309, 25 L. ed. 387.

Where the question raised is a Federal question, this court will not sustain a mo

tion to dismiss.

Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921.

Mr. J. B. Foraker filed a further brief for plaintiff in error, the contentions of which sufficiently appear in the opinion.

Messrs. C. H. Grosvenor and D. L. Sleeper submitted the cause for defendant Mr. John J. Stoddart was with

in error.

them on the brief.

To longer maintain the canals would be no benefit to the United States government. That railways would supplant canals could not have been in contemplation of the parties, and the state would not be held by the general words of the act of Congress donating the aid.

The right to abandon follows necessarily from the right to build. Every lessee of power takes his lease and puts up his improvements with full notice of the reserved right of the state to discontinue the canals and stop the supply of water.

Fox v. Cincinnati, 104 U. S. 783, 26 L. ed. 928.

Mr. Justice Brown delivered the opinion of the court:

*1. Motion was made to dismiss the writ[475) of error in this case for want of a Federal question. The decision of this motion was postponed to the merits, and we are now of opinion that it must be denied.

The position of the plaintiff is that the
the state of Ohio 500,000 acres of land for
act of Congress of May 24, 1828, granting to
the construction of canals, and providing
that such canals, "when completed or used
shall be and forever remain public highways
for the use of the government of the United
States," and the acceptance thereof by the
general assembly, constitute a contract by
the state for the perpetual maintenance of
such canals as public highways, at least until
they were given up by consent of the United
States, and that the subsequent act of the
general assembly of May 18, 1894, providing

for the abandonment of such canals without
such consent being given, was obnoxious to
that provision of the Federal Constitution
declaring that no state shall pass a law im-
pairing the obligation of contracts.

The main question, then, is whether the acceptance of this act of Congress of 1828 by the general assembly of Ohio should be interpreted as raising a contract by the state for the perpetual maintenance of these canals as public highways. We have repeatedly held that, where the plaintiff relies for his recovery upon the impairment of a contract by subsequent legislation, it is for this court to determine whether such contract existed, as well as the question whether the subsequent legislation has impaired it. Piqua Branch of State Bank v. Knoop, 16 How. 369, 14 L. ed. 977; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571. This rule also applies to a contract alleged to be raised by a state statute, although the general principle is undoubted that the construction put by state courts upon their own statutes will be followed here. Jefferson Branch Bank v. Grinnell v. Chicago, R. I. & P. R. Co. 103 Skelly, 1 Black, 436, 17 L. ed. 173; McGahcy U. S. 744, 26 L. ed. 458; Van Wyck v. Kne-v. Virginia, 135 U. S. 662, 34 L. ed. 304, 10 vals, 106 U. S. 369, 27 L. ed. 204, 1 Sup. Ct. Rep. 336.

Chicago, M. & St. P. R. Co. v. Hoyt, 149 U. S. 1, 37 L. ed. 625, 13 Sup. Ct. Rep. 779. Since the parties to this arrangement are satisfied, and the United States is not objecting to this change of use, no other persons can object.

Mr. C. H. Grosvenor filed a separate brief for defendant in error:

Abandonment of her public canals by the state creates no liability on her part to respond in damages resulting therefrom to parties holding leases of surplus water.

State ex rel. Richards v. Pittsburgh, C. O. & St. L. R. Co. 53 Ohio St. 189, 41 N. E. 205; State v. Snook, 53 Ohio St. 521, 42 N. E. 544; Malone v. Toledo, 34 Ohio St. 541; Hubbard v. Toledo, 21 Ohio St. 379; Fow v. Cincinnati, 33 uhio St. 492.

Sup. Ct. Rep. 972; Douglas v. Kentucky, 168
U.S. 488, 42 L. ed. 553, 18 Sup. Ct. Rep. 199;
McCullough v. Virginia, 172 U. S. 102, 43
L. ed. 382, 19 Sup. Ct. Rep. 134.

We cannot say that it is so clear that the
statute in question is not open to the con-
struction claimed that we ought to dismiss
the writ as frivolous, within the meaning of
the cases which hold that, where the question[476]
is not of the validity but of the existence of
an authority, and we are satisfied that there
was and could have been no decision by the
state court against any authority of the
United States, the writ of error will be dis-

missed. Millingar v. Hartupee, 6 Wall. 258, 18 L. ed. 829; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 87, 35 L. ed. 943, 946, 12 Sup. Ct. Rep. 142; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353. If the statute were given the construction claimed by the plaintiff, it would be difficult to avoid the conclusion that the abandonment of the canal under the act of 1894, and its lease to the defendant railroad company, were a repudiation of the duty of the state to maintain it as a public highway; though the question would still remain whether the plaintiff would be in a position to take advantage of such default.

2. In disposing of this case the supreme court of the state of Ohio held (1) that the defendant railroad corporation had the power to build a railroad between the termini named, and to acquire by purchase or condemnation a right of way for its road, and other property necessary for its operation; (2) that the act of Congress of 1828, donating land to the state for the construction of canals, and the act of the general assembly of the state accepting the same, did not constitute a contract for the perpetual maintenance of such canals; (3) that if such a contract existed, the plaintiffs in these suits were not parties to it; (4) that the Lancaster Lateral Canal Company did not acquire a fee simple in the lands, but a title for the uses and purposes of the canal, and the company could not, when the use ended, sell them to others, but the lands reverted to the owners of the freehold; (5) that by leasing the lands for the purposes of a railroad the original easement in the lands was not extinguished, but passed to the purchaser, who took it subject to the duty of making compensation to the owner of the freehold for the additional burden imposed on the land, and such damages as might result to him from the new use.

We are concerned only with the second and third of these conclusions, which turn upon the construction to be given to the act of Congress of 1828. If by the acceptance of this act by the general assembly of the state [477]of Ohio, the state *became irrevocably bound to keep up the canals for all time, for the use, not only of the government, but of every one who incidentally profited by their preservation, it is impossible to escape the conclusion that their subsequent abandonment impaired the obligation of such contract. But we think the supreme court of Ohio was clearly right in its interpretation of the statute. The principal object of the act was a donation of lands to aid the state in works of internal improvement, which were then being extensively contemplated in the newer states of the west. Canals, at that time, embodied the most advanced theories upon the subject of internal transportation. Congress annexed as a condition to the grant that the canals built by its aid should, "when completed or used, be and forever remain public highways for the use of the govern

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ment." Counsel for the defendant insists that, under the terms of the proviso, the obligation to maintain these canals as public highways existed only so long as they were "used" as such, and this was evidently the opinion of the supreme court of Ohio. Counsel for plaintiff insists, upon the other hand, with much reason, that the proviso, that "the said canals, when completed or used, shall be and forever remain public highways," marks the beginning of the time when the obligation was intended to operate; that is, if the canals were completed, or, without being completed, were so far completed as to be capable of use, and were used, the obligation to maintain them in perpetuity attached. Whatever be the proper interpretation of these words,-and they are by no means free from ambiguity, the dominant idea of the proviso was evidently to compel the state to maintain the canals as public highways, and to allow the government free use of them "for any property of the United States or persons in their service passing along the same." Whether the canals should be maintained forever as such, or should give place to more modern methods of transportation, was a matter of much less moment to the United States than to the state. The general government was only interested in securing their use for the public and the free transportation of its own servants and property. The object of the act was to facilitate and encourage public improvements, *but not[478] to stand in the way of the adoption of more perfect methods of transportation which might thereafter be discovered. Had the question of internal improvements arisen ten or fifteen years later, when railways began to be constructed, it is quite improbable that the state would have embarked upon this system of canals, or that Congress would have aided it in the enterprise. Waiving the queston whether the state could have abandoned the lands upon which these canals were built, as public highways, we think it entirely clear that Congress could not have intended to tie the state down to a particular method of using them, when subsequent experience has pointed out a much more practicable method, which has supplanted nearly all the canals then in use. There was no undertaking to keep up the canals for all time, and we think the proper construction of the proviso is that the government should be entitled to the free use of the canals so long as, and no longer than, they were maintained as public highways, and that the act of 1894, leasing these lands to the defendant for an analogous purpose, does no violence to the contract clause of the Constitution.

Were the question one of doubt, we should hesitate long before refusing to defer to the many opinions of the supreme court of Ohio, through several changes in its personnel, holding it to be within the power of the state to abandon the canal for other public purposes, and that such abandonment gave no right of action to private parties incidentally affected or damnified by it (Hubbard v. To

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ledo, 21 Ohio St. 379; Little Miami Elevator | ties interested did not desire to be started. Co. v. Cincinnati, 30 Ohio St. 629; Fox v. It might be otherwise if the legal title was Cincinnati, 33 Ohio St. 492, affirmed by this in the government. Then the land would be court, 104 U. S. 783, 26 L. ed. 928; Hatch v. subject to homestead or pre-emption rights." Cincinnati & I. R. Co. 18 Ohio St. 92; Ma- A similar case is that of Van Wyck v. Knelone v. Toledo, 28 Ohio St. 643; State ex rel. | vals, 106 U. S. 360, 27 L. ed. 201, 1 Sup. Ct. Fanger v. Board of Public Works, 42 Rep. 336. In that case the railroad comOhio St. 607; Pennsylvania & 0. Canal pany had filed a map of definite location, and Co. v. Portage County Comrs. 27 Ohio the Land Department had withdrawn the St. 14; McCombs v. Stewart, 40 Ohio odd-numbered sections appropriate thereto; St. 647; State v. Snook, 53 Ohio St. 531, but in constructing the road the company de42 N. E. 544); but the state of Ohio parted from the line indicated. The lands in does not stand alone in affirming this princi- dispute were within 10 miles of the road as ple. People v. Kerr, 27 N. Y. 188; Lexing- built and of the line delineated on the map. ton & O. R. Co. v. Applegate, 8 Dana, 289, 33 They were entered by Van Wyck, who received Am. Dec. 497; West v. Bancroft, 32 Vt. 367; a patent for them, and Knevals, who had acHaldeman v. Pennsylvania C. R. Co. 50 Pa. quired his rights from the railroad company, 425; Chase v. Sutton Mfg. Co. 4 Cush. 152. filed a bill against Van Wyck seeking to [479] *In addition to this, however, the plaintiff charge him as trustee for the lands, and the stands in no position to take advantage of a court decreed a conveyance accordingly. The default of the state in this particular. He defendant attacked the right of the company was not a party to the contract between the to the grant, alleging that it never completed state and the Federal government; his rights the construction of the entire road for which were entirely subsidiary to those of the gov- the grant was made; that after filing its map ernment; and if the latter chose to acquiesce with the Secretary of the Interior it changed in the abandonment of the canals, as it seems the route of the road for a part of the disto have done, he has no right to complain. .tance. The court held, however, that the He can only sustain this bill upon the theory company had constructed a portion of the that his rights are equal to those of the gov- proposed road, and that portion was accepted ernment, and that he can call upon the state as completed in the manner required by the to maintain the canal for his benefit. act of Congress; that if the whole of the proposed road had not been completed any forfeiture consequent thereon could only be asserted by the United States through judicial proceedings or through the action of Congress. "A third party cannot take upon himself to enforce conditions attached to the grant when the government does not complain of their breach. The holder of an invalid title does not strengthen his position by showing how badly the government has been treated with respect to the property."

The case of Grinnell v. Chicago, R. I. & P. R. Co. 103 U. S. 739, 26 L. ed. 456, is pertinent in this connection. That was an action in ejectment brought by a railroad company to recover certain parcels of its land grant, upon which the defendants had settled and asserted rights under the homestead and preemption laws of the United States. Their defense was that the company had no title, because it had lost whatever right it had to the lands by a change in the location of the road, and because locating the road as it was completed did not bring these lands within the limits of the land grant act. The court held that, the lands being within the limits of the first location, the construction of the road on the new line did not annul or defeat, without further action on the part of the United States, the title thus vested; that Congress had consented to the change without any declaration affecting the title already vested in the company by the first location, and that defendants were bound thereby. In delivering the opinion of the court Mr. Justice Miller observed: "Another point equally fatal to the plaintiffs in error is that the assertion of a right by the United States to the lands in controversy was wholly a matter between the government and the railroad company, or its grantors. The legal title remains where it was placed before the act of 1864. If the government desires to be reinvested with it, it must be done by some judicial proceeding, or by some act of the government asserting its right. It does not lie in the mouth of everyone who chooses to settle on these lands to set up a title which the government itself can only assert by some direct proceeding. These plaintiffs had no [480] right to stir up a litigation which the par

The only contract in this case was between the state of Ohio and the United States. Plaintiff was neither party nor privy to such contract. It was within the power of the government to prosecute the state for a breach of it, or to condone such breach, if it saw fit. As it adopted the latter course, and has deemed it proper to acquiesce in the abandonment of the canals and in the state turning them over to the railroad company.[481] it does not lie in the mouth of the plaintiff to complain. This disposes of every question called to our attention in the briefs of counsel.

If

The plaintiff is amply protected by the deroad company from entering upon his lands cree of the supreme court enjoining the railuntil payment has been made, after proper proceedings, for the increased burden caused by the use of te lands for the railroad. any taking of the lands consequent upon the for the purpose remanding of the cause stated should suggest ulterior questions, they do not arise there, and would not be concluded by an affirmance of the decree now before us for review.

The decree appealed from is therefore af firmed.

481-483

MICHAEL VOUGHT, Piff. in Err.,

COLUMBUS,

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HOCKING

VALLEY,
ATHENS RAILROAD COMPANY.

(See S. C. Reporter's ed. 481.)
[No. 92.]

Submitted December 13, 1899.
February 26, 1900.

ERROR to the Supreme Court
I State of Ohio.

of the

See same case below, 58 Ohio St. 123, 50 N. E. 442.

The facts are stated in the opinion. This case was argued and decided by the same counsel and at the same time as the preceding case.

Mr. Justice Brown delivered the opinion of the court:

for many years past operated by water power supplied by the canal; that such mill was & originally constructed before the location and construction of the Hocking canal, and was run and operated by water power from the Hocking river until the canal was constructed, when it became necessary to appropriate the Hocking river and the water power which had been used to supply his mill for the Decided purposes of the canal; that at that time the land and the mill were owned by one Worthington, who entered into a contract with the state, by which the latter agreed to enlarge and forever maintain the dam across the Hocking river above the grist mill, in order to afford an ample supply of water, in consideration of his granting to the state the right to construct the canal through his lands; that the canal was constructed and the dam built in pursuance of such contract, and that all the water power necessary to operate the mill has been supplied from the said canal and the Hocking river up to the present time; that the plaintiff is the present owner of the land by deeds from Worthington, and that the grist mill has been supplied by such power from the Hocking river and the canal from the date of the construction of the canal, a period of fifty-seven years; that, relying upon such contract, he has made improvements and repairs upon said mill, put the same in excellent condition, and is doing a large and profitable business; that if the defendant is permitted to enter upon the canal and construct its railroad the water power will be cut off and destroyed, and the property rendered of little value; & that he is also the owner of other lands on both sides of the canal for a long distance, to the amount of 1,000 acres, and that the[483] construction of the railroad will place increased burdens upon his lands, and cut off to parts of them and destroy his access through the highways, and that he will be deprived of watering privileges for his stock. A general demurrer was filed to this peItition, which was sustained by the court and the petition dismissed. Plaintiff appealed 1899. Decided to the circuit court, which also sustained the demurrer and dismissed the petition. Whereupon plaintiff appealed the case to the supreme court of the state, which affirmed

This was also a petition by a landowner for damages which he avers will be caused by the abandonment of the canal. The case took the same course as the case of Walsh, and the same judgment was rendered. So far as the constitutional question is concerned, the cases are precisely alike, and the judgment is accordingly affirmed.

ROBERT WRIGHT, Plff. in Err.,

v.

VALLEY, HOCKING COLUMBUS, ATHENS RAILROAD COMPANY. (See S. C. Reporter's ed. 481-483.) The Federal question set up in the assignment of errors in this case being precisely the same

as in the cases preceding, the decision is the

same as in those cases.

[No. 91.]

13, February 26, 1900.

Submitted December

N ERROR to the Supreme Court of the

I State of Ohiote

Court of firming a decision of the lower court sustaining a demurrer and dismissing the plaintiff's petition. Affirmed.

See same case below, 58 Ohio St. 123, 50 N. E. 442.

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Mr. J. B. Foraker submitted the cause Messrs. T. E. Powell for plaintiff in error. and D. J. Ryan were with him on the brief. Messrs. C. H. Grosvenor and D. L. Mr. John J. Stoddart was with Sleeper submitted the cause for defendants For contentions of counsel see briefs as them on the brief. reported in Walsh v. Columbus, H. Valley & A. R. Co. 176 U. S. 469, ante, 548, 20 Sup. Ct. Rep. 393.

Statement by Mr. Justice Brown: [482] *This was also a petition in the same court to enjoin the railroad company from enter-in error. ing upon or taking possession of the canal property and constructing a railroad thereon, but in certain particulars differs from the case already considered.

Plaintiff averred that he is the owner in fee simple of a certain tract of land in the county of Hocking, through and along which said canal passes; that he is also the owner of a mill located on said land on the south side of the canal, which is now and has been

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