Railroad Company v. Platt et al. Kamlah, 28 A. & E. R. R. Cases, 250; Lawrence v. R. T., 30 A. & E. R. R. Cases, 309; Railroad v. McBroom, 33 A. & E. R. R. Cases, 90; Railroad v. Nye, 113 Ind., 223; Railroad v. Redick, 17 A. & E. R. R. Cases, 107; Cincinnati v. Kemper, 2 W. L. B., 5. All the owners of lot 11 were also all the owners of lot 13, and they ought not to be permitted to reap the benefit of Platt's act or deed and then turn around and seek to avoid the effect of it. That the retention or reaping the benefits of a transaction by the principals, constitutes an acquiescence as effectual as the most formal authorization in advance or the most formal ratification afterwards. A different result would be a reproach to our jurisprudence. People's Bank v. National Bank, 101 U. S., 181; Bigelow on Estoppel, 423; 7 Wallace, 592; 69 Pa. St.. 426; Weeden v. Railroad, 14 Ohio, 563; Winponny v. French, 18 Ohio St., 469. Frank H. Hurd, for defendants in error. Assuming that Hall owned lot 11, bounded on the west by the Maumee river, what is the exact boundary line which the call of a river for such a purpose in a conveyance fixed? It is well settled that such a call carries the boundary to the centre of the river, where it is not a navigable stream, at common law. But this is only in those cases where the river eo nomine is made the boundary. It is based upon the presumption that such was the intention of the parties to the conveyance-the ground that the grantors, ordinarily, would not care to retain the bed of the river, having parted with the upland-with its riparian rights, and that the grantee would naturally desire all the rights Railroad Company v. Platt et al. which would come to him as the owner of the soil over which the water flows. But this is a mere presumption, which may be rebutted by any circumstances showing a contrary intent. It therefore resolves itself in each case into a question of the interpretation of the conveyance, in order that the intention of the parties may be ascertained. Boston v. Richardson, 13, Allen, 134; Luce v. Carley, 24 Wendell, 453; Mott v Mott, 68 N. Y., 254; Bank v. Nichols, 64 N. Y., 70; Kingsland v. Chittenden, 6 Lansing, 20; Cove v. White, 20 Wis., 454; Walker v. Board of Public Works, 16 Ohio, 540. In the late case of June v. Purcell, 36 Ohio St., 397, the doctrine is stated as well settled in Ohio that a grantee taking land bounded by a river takes usque ad filum. Where any one who is the owner of the soil under the water by virtue of his grant being extended to the centre of the channel, when it is bounded by the river, he can dispose of this land under the water just as any other land he owns. He may divide it into water lots and sell them. He may convey it separately from the upland or he may sell part of it with the upland, and retain the balance, or convey it to a third party. What he has done is a question of interpretation of the conveyance from which the intention is to be derived. Gould on Waters, 45; Bradford v. Cressy, 45 Me., 13; Hatch v. Dwight, 17 Mass., 298; Storer v. Freeman, 6 Mass., 440; Tuler v. Hammond, 11 Pick., 213; Child v. Starr, 4 Hill, 374; Bradish, Pres., 4 Hill, 382; 3 Kent's Commentaries, 434; Den v. Wright et al., 1 Peters, C. C., 69; 26 Mich,, 617; Chicago v. Rumsey, 87 Ill., 351; Jackson v. Hathaway, 15 Johns., 453; Trustees v. Schroll, 120 Ill., 321; The Text in Tyler on Boundaries, 123; Hall Railroad Company v. Platt et al. on Seashore, 155; Moses v. The Eagle & Phænix Mfg. Co., 62 Georgia, 456; Rivas et al. v. Solary, 18 Fla., 124. A riparian owner in Ohio owns to the centre of the river to which his lands are adjacent. The submerged land to that centre he owns in fee, as he does the upland. He can convey the soil under water just as he can any other land he owns; what he has conveyed in any given case is a question of interpretation of the conveyance. If he bounds the land by the river eo nomine the grantee takes to the thread; if he conveys by metes and bounds the title of the grantee is limited by the boundaries fixed. His grant cannot be construed to extend beyond the boundaries, any more than if the land conveyed was dry land. Having definitely determined the boundaries so that any man can ascertain them, there is no room for construction or legal intendment. Section 9 of the act of February 11, 1848, confers the power of appropriation which the railroad company had in this case. Iron Railroad Co. v. Ironton, 19 Ohio St., 299; Walsh v. Barton, 24 Ohio St., 28; Platt v. Railroad Co., 47 Ohio St., 336; Gilbert on Tenures, 75; 1 Redfield on Railways, 240; Mott v. Mott, 68 N. Y., 254. We will consider the American authorities upon the subject of rights in waters, and, first, of the right to build wharves on soil owned by the state or public. (1) This is a franchise which the adjacent owner enjoys from the state, subject to the public right of navigation. East Haven v. Hemingway, 7 Con., 202; Cohen v. Anton Awl, 52 Cal., 398; Hamlin v. Fairport Mfg. Co., 141 Mass., 37; Parker v. Rogers, 9 Oregon, 189; Houck on Rivers, 187; Railroad Company v. Platt et al. Wharf Case, 3 Bland, 373; Grant v. Davenport, 18 Iowa, 340; Negle v. Ingersol, 7 Pa. St., 201. (2) The rule in Ohio: The question has never been determined in this state. Sloan v. Benmiller, 34 Ohio St., 512; Dutton v. Strong; 1 Black, 31; Austin v. Rutland Railroad Co., 45 Vt., 242. (3) Consider now the ground on which it is held that the adjacent owner may build wharves where he holds the title to the soil to the centre of the river. The doctrine seems to be well established that his right depends upon the ownership of the soil, which he may exercise by carrying out the wharves to the point of navigability, subject to the supervision of the state or municipality and without making obstruction to navigation. Houck on Rivers, 188; Wood on Nuisances, sec. 490; Attorney Gen. v. Lonsdale, 9 Eq., 389; 6 Wait's Actions and Defenses, 367; Jeffersonville v. Railroad Co., 27 Ind., 100; 1 Dillon on Mun. Corp., (3d ed.) 1155; Nicoll v. Gardner, 13 Wend., 289; Hogan v. Campbell, 8 Porter, 34; Norfolk v. City, 27 Grattan, 435; Del. & Hudson Co. v. Lawrence, 2 Hun., 186; Middleton v. Pritchard, 3 Scammon, 521; Chicago v. Laflin, 49 Ills., 176; Rice v. Huddiman, 10 Mich., 141; Ryan v. Brown, 18 Mich., 207; Walker v. Board of Public Works, 16 Ohio, 544: Hickok v. Hine, 23 Ohio St., 528. But there is no authority for asserting this as a principle in cases where the owner of the land takes to the thread of the river which bounds it. The only authorities referred to are four, in the state of Wisconsin. Deitrick v. Railroad Co. 42 Wis., 265; Delaplain v. Railroad Co. 42 Wis., 226; Stevens v. Reiley, 44 Wis., 305; S. C., 46 Wis., 231; Cohn v. The Wausea Boom Co., 47 Wis., 322. Railroad Company v. Platt et al. We remark of the case (1), the question was not involved of the ground upon which the right to erect wharves rests; (2), it was not a case where the owner of the adjacent lands held to the thread of the river; (3), if presented, the question as to an undisputed riparian right, viz.: the right to enjoy the flow of the river, which, it is not disputed in this case, is in the plaintiff in error; (4), the point urged in the argument was that there was a difference between these natural rights, in a bank bounded upon tidal waters where the owner took to high water mark, and in a bank on a river above the tide where the proprietor owned the soil to the thread of the river. The case simply holds that owners of the bank on tidal waters are not deprived of riparian rights, because they do not own the soil beyond the margin of the shore. Our conclusions are supported by the recent case of Lembeck v. Nye, 47 Ohio St., 336, where the exact question presented here arose. It is true that the case grew out of a dispute between parties who owned land bounding upon a non-navigable inland lake, and those who claim to own the bed of the lake. But the supreme court applied to the conveyances, bounded by such lake, the same rule which had been applied to navigable and non-navigable streams by the supreme court of the state, viz., that where one of the calls is a bounded land upon such stream, it carried the ownership of such land to the middle of the stream. So far, therefore, as the right of one owning lands bounded by the Maumee river is concerned, it is the same as that of one owning land bounded by Chippewa Lake. People ex rel. v. Jones, 112 N. Y., 603. It is cbjected that an action of ejectment will not lie against the defendant, because it is a railroad |