Harlan F. Stone

“ The large expenditures of the state were to furnish, not water-power, but a navigable highway for the transportation of persons and property. The authority of the board of public works to contract in respect to power was expressly confined to such water as remained after the wants of navigation had been supplied; and it never could have been intended in this way to impose on the state an obligation to keep up the canal, no matter what the cost, for the sole purpose of meeting the requirements of its water leases. ”

“ Even if it be assumed that there was a complete nonuse by the public of the canal for purposes of navigation as early as 1895, which seems to be in dispute, neither the court below nor the appellee points to any act or omission on the part of the state indicating abandonment of the canal by it as an instrument of navigation before the act of the Legislature of 1927, or any act devoting it to other purposes, other than the making of leases or grants which, as before, purported to deal only with surplus waters not required for navigation. ”

“ Some 16 miles from the inlet is a side cut through which water may be discharged into the river and so diverted from the rest of the canal. The section from the inlet to this side cut is described as 'lineal part 2.' Appellee's plant is located on lineal part 1, which extends from the side cut northeasterly to the outlet at Toledo, and is thus dependent for its supply of water on a continuous flow through lineal part 2. ”