Morrison Waite

“ The flow of water to the wheel will be regulated and controlled by a permanent regulating weir, to be constructed in the most substantial manner, with stone side and breast walls, agreeably to a plan to be furnished by the commissioner of the canal, to be built in every respect according to his directions, as not to endanger the safety of the canal in any manner whatever. ”

“ The prayer of the petition of Spears & Case is for alternative relief. If it shall be determined that their interest in the property passes by the sale, they ask to be paid its value from the proceeds. If it does not, then they seek to have their rights, as against the purchasers, specifically ascertained and determined; the rents which have accrued and which may hereafter accrue from the Delphi leases paid over to them, and the proper steps taken to make the unused power at that point available for the liquidation of what is still due on their certificate. ”

“ To this suit neither Spears & Case, nor Johns, nor any one representing their interests, was made a party. The trustees of the canal were the only defendants, and on the 24th of December, 1875, a decree was made 'that the Wabash and Erie Canal, including its banks, margins, tow-paths, side-cuts, feeders, basins, rights of way, locks, dams, water-powers, and structures, together with all its appurtenances; also all lands and lots . . . belonging to the trust and vested in the trustees of the Wabash and Erie Canal,' be sold. ”

“ The decree, as entered, is broad enough on its face to authorize a sale of the property free of all incumbrances. The purchasers, acting on the idea that they bought all the water-power in the canal, and that the rights of the several petitioners had been extinguished, claim the rents under the Delphi leases as their own, and threaten to cut off the supply of water to the assignees of Johns unless rent is paid for what is used. ”

“ The only substantial difference between his rights and those of the other lessees of power was, that they were to pay rent at stated periods for the water they used, while he was to draw without payment of rent, in consideration of his release of the damages he had sustained by the diversion of the water from the river to h e canal and draw water therefrom to his mill whenever on the canal and draw water therefrom to his mill whenever and so long as there was a surplus over what was wanted for navigation and the supply of the earlier leases. ”

“ Be it further enacted, that the said engineer, or person having charge of that part of the canal, shall cause the work to be estimated when the same is completed, and shall give to the person doing the same a draft or other evidence of indebtedness, specifying what the same was given for, and the amount due him as by the said contract, and for the purpose of paying for the said work, the rents that may be received by the State for water-powre created by this act shall be appropriated for that purpose, and to no other purpose ”

“ The State assumed no pecuniary obligation in the contract that was made, and Spears & Case agreed to look only to the rents for their pay. To this end, the State 'appropriated,' that is to say, set apart, the rents for the use of Spears & Case, and made itself a trustee to col ect and pay them over as fast as received. No other reasonable construction can be given to the language of the statute on which the rights of the parties depend. ”

“ That said water-power is of great value to your petitioner, as was the grant made by said Johns on the river for the same; that the annual value of said water-power is at least $1,500, nd the aggregate value of the same is not less than $25,000, and in the sale of said canal the water-power so granted to said Johns and now owned by petitioners added at least $20,000 to the price paid, and to the fund now in court. ”