An abstract of this testimony, so far as is deemed material, is here made, and arranged to the different points presented in the cause.

FIRST: The works erected by the complainants, before the location of the canal, was absolutely fixed.

Brabham testified, there was a merchant mill, with three run of stones, a waste wheel to drive from two to four grind stones, a fulling mill, with two water wheels, driving two setts of fulling hammers, a carding machine, with one water wheel, driving two carding machines, and one wool picker. A cotton factory, number of spindles not known, and a saw mill with two saws.

There was no controversy, but that the works here enumerated, were owned and kept in operation, by the complainants, before the canal was finally located. SECOND: The works erected after the canal was located, and before the sale of water power was proposed.

Amos A. Richards testified, that he had erected a cotton factory, on a cut from the head race of complainants to the basin. That he had taken a lease for the water, from complainants. That before he took it, complainants sent him to J. Farrer, principal engineer, to obtain permission to make the cut. That he went to Farrer, explained the object, and the quantity of water required, that Farrer assented: the race or cut, was dug by a person whom Farrer recommended, and that Farrer was present while the cut was digging, and approved of it.

The testimony of this witness was unimpeached.

J. Farrer testified the wheels were raised by complainants, at their own expense, for the accommodation of the canal commissioners, and at a loss of a considerable portion of their water power.

THIRD: The injury sustained by complainants, by the abstraction of the water of Mad river, into the canal feeder.

Upon his first examination, Brabham testified that he had kept the complainants' merchant mills for eight or nine years. That during the last year there was a deficiency of water, for about four months, in the latter part of summer and beginning of autumn. That a part of the time, all the water of Mad river was turned into the feeder, and the mills supplied by a waste way from the feeder, but all that could be spared from the canal was insufficient. In his latter deposition, he states that after the first of August, 1830, the saw-mill stopped from a deficiency of water-the fulling-mill was also stopped, and the merchant mill stopped after the sixth of August, except on nights and Sundays.

Shartle testified that he had attended the saw-mill, for several years, and that in 1829, the mill did not run for two months. In his second deposition, he stat ed that the saw-mill was stopped for want of water, that they had from a hundred and fifty to a hundred and sixty logs on hand; that if the saw-mill could go on, it would be worth from ten to twelve dollars for every twenty-four hours, and that Mad River was not then lower than usual at that season of the year. He further stated, that before the opening of the canal there was no deficiency of water, for all the works.

FOURTH: With respect to the connexion of the defendant with Seely's works, and the nature and character of the title to the land contracted for, by the State, where the sale of water power is proposed.

John W. Vancleve testified to the general correctness of the map produced. He also stated that the ground purchased by the Canal Commissioners was sold by H. Phillips to Seely, and by Scely to the State, that Barr and Lodwick held Phillips' bond to Seeiy, and were prosecuting a suit against Phillips for the title. Samuel Farrer testified that he had examined Secly's works, at the request of the defendant, after the proposition to sell to the State was made. He stated also, that defendant informed him his brother was once concerned, in a pur. chase of land connected with Seely's works: but that when he ascertained that Mr. Seely intended to sell the land to the State for water power, his brother, at his urgent request, relinquished his interest.

There was much testimony as to the waste of water, the opinion of witnes ses concerning the relative injury and benefit of the canal to the complainants' property, at Dayton, and with respect to the admeasurement of the water, its waste by absorption, and the effect of the sale of the proposed quantity of wa ter, upon the water works of the complainants, and upon their general interest. There was testimony, also, as to the capacity of the complainants' mill-race and other works to supply the canal with water, and the propriety of the State relying upon such supply.

Jas. H. Mitchel was the only witness examined by the defendant. His tes. timony applied to different views of the case. He stated distinctly, that should the water of Mad river be as low as in 1829, and the State take three thousand cubic feet per minute for the canal, Cooper's mills must stop. He also stated that no advantage would probably result to the State, by supplying, from the feeder, water for Seely's canal and basin, but the revenue from the sale of the water power. He stated, in addition to this, that the water power from the feeder could be as advantageously used on the complainant's lands, as at the point it was proposed to sell it.-The witness was the superintendant of the canal at Dayton.

Hammond, for complainants.

Mason, Kelly, Ewing, Corwin and Collet, contra.

Opinion of the Court, by Judge LANE.

The proof in this case shows, that the plaintiffs are the proprietors of a tract of land on Mad river, near the town of Dayton, upon which a valuable water power exists, and is improved, and that a greater power may be created by diverting a greater quantity of water from the river. That it is necessary to take from the river three thousand cubic feet of water per minute, to supply the Dayton canal, by which the value of the plaintiffs' milling privileges is materially impaired. That the Canal Commissioners have erected a dam on the land of Findlay, which lies above, and have constructed a feeder, which transmits the water from the river, first through Findlay's land, next through a part of plaintiffs' land, thence upon the land of another person, from which it again enters the plaintiffs' land, and joins the canal. That, in the construction of this feeder, a new water power is created, which may be used either on the plaintiffs' land, or on the intermediate land, and that the defendant, who is one of the Canal Commissioners, is about to sell the right of using two thousand cubic

feet of water per minute, to be taken from the feeder at some point between the two portions of the plaintiffs' land, and returned to the canal below. The bill prays general relief; but the pleadings direct the attention of the court to two points, which comprises the remedy he asks.

It is not an objection raised by the defendant that he is but one of five Commissioners, and that he only carries their acts into execution: ner is a decree resisted on the ground that the whole board of Canal Commissioners are not principals acting in their own rights, but agents of the State only. The case

is discussed by the respective counsel on the merits, and the court will view it in no other aspect.

We are first called upon to restrain the defendant from the unnecessary consumption of water. If it be proper for us to institute this enquiry, the evidence shows that three thousand feet per minute is necessary, for the ordinary sup ply of the canal, at this point, and that this is all intended to be taken. And, although some irregularities exist in the quantity introduced, that they arise, partly from the accidental influx from other sources, or, perhaps, partly from the inexperience or want of attention, in the superintendent, yet they chiefly spring from the variable quantity flowing through the race of the saw-mill, a volume under the controul of the defendant. The evidence therefore does not support the plaintiffs' claim. But if it were otherwise, I am not sure it would be within the proper duty of the court to controul the Commissioners, in the manner of supplying the canal with water. The power to construct the canal is an high attribute of sovereignty; and in tracing the line,-in selecting materials for its construction,-in the introduction and management of the water,— and in the thousand subordinate operations, attending the execution of so vast a work, there is a necessity for the exercise of large discretionary powers. The board of Canal Commissioners are selected with special reference to their possessing capacities adapted to this work, and although a case strong enough to justify our interposition inay arise from corruption, from malicious intention, or caprice, yet, in the absence of these, the court would pause, before it will assume to controul the discretionary powers the law intends to confide to them. The security, for the faithful exercise of this discretion, is found, not in the superintendence of courts of justice, but in the individual reputations of the Commissioners--in the tenure of their office,-in their acting openly on the rights of others, in the face of a people, vigilant to watch and acute to discern, and in their being exposed to the overwhelming force of public opinion.

The more important question in this suit is, whether the court will restrain the sale of the 2000 feet of water to be taken from the feeder, between the point where it emerges from the plaintiffs' land, and the point where it again eaters upon it. The determination of this, depends upon the nature of the plaintiffs' interest, in the water flowing down the feeder.

The interest of a riparian proprietor, where his rights are not limited by usage or convention, consists in an absolute right to any use he can make of the water, while passing over his land. He is bound to transmit it by its natural channel to the next occupant, and he is permitted to exact the same "servitude" from the proprietor above him. The right thus acquired, is not a right to the water itself, but an interest in the manner of its flow; for the water in a running stream, flowing in its natural channel, is not a subject of property. (2 Black.

4 HAMMOND, 253.

Comm. 18.) The right, therefore, to all advantage of the river, in its channel, to all benefit of the present mill race, and the right to create any other mill seat, which would permit the water to be returned to its natural channel before it left their land, were all vested and absolute in the heirs of Cooper, at the time of the creation of the canal, and they could not not be deprived of them, except in due course of law.

It is upon these rights, the State has assumed to act, by virtue of its transcendent sovereignty,* a power to appropriate private property for public uses, for the purpose of promoting the general welfare. This power is inherent in every government; but it should be exercised in cases, and for objects strictly public; and, in our country, the constitution of the United States, and of the State of Ohio, ensure that principle of natural justice, which requires compensation be made to the individual deprived of his property.

There is no doubt that a canal is such an object, that private property may be subjected to its construction. By the act of 1825, (St. 23, 56, 5. 8.) the legislature have authorized the commissioners to use the water of streams for this purpose, and the means of compensation is provided for those who suffer by the exercise of this power. The commissioners have abducted a portion of the waters of Mad river, by this authority, and the plaintiffs are entitled to a compensation for every injury, resulting from this act. For every infringement of their rights-for every injurious interference with the control of their own property for all detriment to a form of their mill privilege, they have received, and may receive satisfaction. And when satisfaction is thus made, and offered, their rights, so far as encroached upon, are extinct.

It remains to consider whether any new rights ensue from the transit of the canal, or its feeder, over the plaintiff's land, which entitle them to the relief they ask. In considering this question, it becomes important to ascertain the nature of the benefits, which ensue from the construction of the canal. They may be classed under the names of general or accidental. The general advantages are the facilities of travelling, accessibility to market, reduction of the price of transportation, and the effect of these, in enhancing the value of land. The accidental advantages consist of the peculir benefit conferred upon specific tracts of land, by the opportunities of basins, warehouses, and other commercial advantages; of all benefits of the water, consistent with its use for the canal, and for the means of irrigation, &c. from waste gates. To attain the gcneral advantages, was the precise end for which the canal was constructed.They were designed for all,-they belong to all; and may be claimed by all. But the accidental benefits, although often, of the highest moment to the individual, are of a nature so indefinite and uncertain, that no vested rights exist to exact them from the agents of the State.

The owner of land, cannot compel the commissioners to select black acre rather than white acre for the dne of the canel and, although there ought to be an indemnity for injuries, there is no justice in a claim upon the State to make compensation for profits which might have accrued under a different location. This view of the case seems decisive of the plaintiff's rights. They might exact from Findlay, the transmission of the water to them through its

*Dominus crainens.

ordinary channel; but this right, so far as it extends to the 3000 feet of water, is extinguished by the transcendent sovereignty of the State. The commissioners possessed the undoubted power to take it from the river and to conduct it through the land of the plaintiffs, to the point where it is proposed to sell the 2000 feet; up to this point there is no cause of complaint; and in consequence of thus using the water, a right to full indemnity ensues to the plaintiffs, and they have no further right. The water of the river is not theirs; certainly not this water, which never touched their land, except through a feeder. We can recognize no greater claim in the plaintiffs, than that which attaches to every proprietor of land, through which the canal might be brought;-no such vested right, in accidental benefits, or expected profits, as give them authority to interfere with the discretion reposed in the public functionaries. No case of corrupt intention, or of malicious design is shown; and we cannot regard, as an abuse of power, an attempt to diminish the pecuniary burthens of the people, by means, which, in our opinion, are no violation of any vested right. Bill dismissed.

Judge BRUSH dissented.

A majority of the court are of opinion that the complainants have not made a case, that warrants the interference of the court, in their behalf, to restrain the action and discretion of the agent of the State, in the matter complained of. My mind has been conducted to a different conclusion. In assigning the reasons which influence my judgment, I do not purpose to answer the positions taken in support of the opposite opinion. I shall content myself with stating the case, as I understand it, and with explaining the principles of law, by which, I conceive, the rights and the remedy of the complainants ought to be gov erned.

The material facts are,

FIRST: The Miami canal has been constructed under the authority of law, from Dayton, on the Great Miami, to Cincinnati.

SECOND: The complainants, by descent from their father, at the time of the construction of the canal, owned a body of land adjoining the town of Dayton, through a part of which Mad river flowed, the water of which had been appropriated and employed, by the proprietor, for many years, in propelling grist and saw mills, and factories of different descriptions, which were owned and continued to be carried on, by complainants.

THIRD: In February, 1825, the Canal was located. The plan required the water to be supplied from Mad River, by a feeder, the course of which, with that of the canal and a basin, was settled upon and decided. Upon this plan the whole work was subsequently constructed and completed. The water was taken from Mad river, into the feeder, above the lands of the complainants, upon the lands of the next adjacent proprietor, and above the dam from which they took the water for their own use. It was conducted through the adjacent tract, into the lands of the complainants, and into the vicinity of their different water works, and in such position as to be conveniently and safely used, in aid of those works, and returned into the basin, at the head of the canal.

FOURTH: Before the water of Mad River was taken for the feeder, there was an abundant supply for all the establishments of the complainants, then in oper.