State of Ohio v. Snook et al.

sembly entitled "An act to provide for the increase of the canal fund by the purchase and sale of real estate for and on behalf of said state," passed February 7, 1826." It is admitted that by the mesne conveyances put in evidence, Mrs. Snook established her claim to the title conveyed by said deeds to May and Kirkum.

The canal, including the basin, the embankment and the substituted channel of Wolf Run, was constructed after the execution of the deed of Williams to the state, and before the execution of the deeds from the state to May and Kirkum. Other facts material to the points decided are stated in the opinion.

The court gave, among others, the following instructions to the jury:

"Now, as to this Williams deed, I say to you that its effect was to convey to the state, lots 233 and 234, not for the purpose of constituting its canal, but in aid of the canal funds of said state; which implied that the lots might be converted into money by sale; and unless you shall find from the evidence that subsequent to accepting this deed the state altered the boundaries of the lots with respect to the basin front, I will limit it to the basin front now; they are to be considered by you as extending to the water of the basin as it existed, for lot 233 at the date of the Kirkum deed, and as to lot 234 at the date of the T. P. May deed, as you shall find it to have been from the evidence, so as to give said purchasers, their heirs and assigns, the privilege of building wharves and warehouses thereon convenient for commerce, by extending the lines of said lots straight forward to the water where the same then was of sufficient depth for the purpose aforesaid. But, it being conceded by

State of Ohio v. Snook et al.

the plaintiff that this land does not extend beyond the piling, you need not go further west for the westerly line of said lots.

"Whether the state appropriated any of the lands in contention, and if any, how much, by eminent domain, is a fact for you to find from the evidence; and this you must find, if you so find the fact to be, from other evidence than the simple fact of the occupancy of the lands for the purpose of constructing and maintaining the lower basin, or the ditch for passing the waters of Wolf Run.

"Whatever lands you find were embraced in lots 233 and 234, as conveyed by the state to T. P. May and Kirkum, you may presume to have been such lands as the state had a right to sell for the purpose of increasing the canal fund, and not such lands as the state appropriated by eminent domain, from the fact that the state conveyed the same, and from the recitals in the Williams deed, and the two deeds to May and Kirkum, notwithstanding the fact that the raceway was then, or since has become the substitute or bed of Wolf Run, and the use of the basin for canal purposes. We hold that it was then competent for the state to determine whether it owned the lands embraced in those lots for canal purposes alone, or not, and that its determination in that respect cannot at this late day be questioned by the defendant Jackson, or the state."

The following instruction requested by the state was refused.

"Seventh Request-If you find that prior to the construction of the Ohio canal, Paul Williams deeded to the state of Ohio, lots 233 and 234 of the town plat of South Akron, and that after receiving

State of Ohio v. Snook et al.

said deed, the state constructed upon a portion of said lots a canal basin, embankment and race as a permanent part of the said canal, and that after constructing the same and filling the said basin with water in such a manner that the actual occupancy of the state with said canal basin, embankment and race was apparent and plainly visible, the state deeded the said lots to Kirkum and May, respectively, then in that case, Kirkum and May would not, by said deeds, obtain title to so much of said land as had been actually taken by the state for canal construction."

In the common pleas there was a verdict in favor of the plaintiff against both defendants for the possession of the premises and against Jackson for rents and profits. Their motions for a new trial was overruled, and judgment rendered on the verdict. Both defendants filed petitions in error in the circuit court, where the judgment of the common pleas was affirmed, and that affirmance they assign as error here.

J. K. Richards, Attorney General, and R. W. Sadler, for plaintiff in error.

We contend for the state:

First-That the plaintiff below does not own, and the state does own, the land in dispute.

Second-That, even if this were otherwise, the state has such interest and rights therein as should defeat this action of ejectment.

The plaintiff below claims the premises in question as the owner of lots 233 and 234, and to apply certain portions of the charge of the court below, to which exception is taken, it becomes necessary to examine her chain of title.

State of Ohio v. Snook et al.

On May 13, 1826, Paul Williams and wife (he having succeeded to the rights of Simon Perkins), deeded to the state of Ohio numerous lots including said lots 233 and 234. The consideration named in the deed is, "the benefits which will result to the community in general and to myself in particular, from the construction of the Ohio canal, and from the foundation of a convenient basin in the village of Akron, in said township and county, which works are now in a state of progression."

The deed contains also the following language, upon which plaintiff below relies: "The water lots, or those laid out next to the contemplated basin, are in all cases to be considered as extending to the water in said basin, so as to give owners thereof the privilege of building wharves or warehouses thereon convenient for commerce, by extending the lines of said lots straight forward to the water where the same is of sufficient depth for the purposes aforesaid, whether the water in the basin be raised to the level of the summit pond or be only raised to the level of the canal below the first lock."

Having received the said deed, the state constructed the canal, basin, embankment and race, as above stated, and thereafter, on January 10, 1834, the governor of the state deeded lot 234 to Thomas P. May, and on February 2, 1835, the governor of the state deeded lot 233 to George Kirkum.

But if the deeds were valid as to their execution, what passed by them?

First Our construction of the language quoted from the deed by Williams to the state is that the lots only extended to the water in the basin, i. e., to the water's edge, with a recital that the reason

State of Ohio v. Snook et al.

for their extending to the water's edge was that thereby the owners of the lots might in the usual way, the canal authorities consenting, build wharves out beyond the lot line and over the shallow water, for the loading and unloading of boats. Second-It will be noticed that the deeds from the state by the governor omit the very language found in the deed from Williams to the state, upon which the plaintiff below predicated all her rights. The mission is significant. Between the time of the conveyance by Williams to the state and the conveyances from the state, the canal and basin, embankment and probably the race, had been constructed. It has been adjudicated by this court that all the land appropriated by the state for the canal and its appurtenances became the property of the state in fee simple. Here we have a conveyance to the state in fee simple. Malone v. Toledo, 34 Ohio St., 541.

Let it be conceded that the deed from Williams was a grant for the benefit of the canal fund. Still it can hardly be denied that the state was as much entitled to construct the canal upon lands so conveyed to it as upon the lands which it took by appropriation. It will be remembered that the appropriation made by the state in those early times was not an appropriation by legal proceedings, but simply an actual taking of the land. Does it not follow that, when the state constructed this basin, embankment and race, it owned the fee of all the land covered by the basin, embankment and race, not simply as a part of its canal fund, but as a part of the canal itself? If so, the governor, was wholly without authority to convey away any portion of the basin, the embankment and the race, though included in these lots. The