Commissioners v. Harbine
| Decision Date | 12 June 1906 |
| Docket Number | 9585 |
| Citation | 78 N.E. 521,74 Ohio St. 318 |
| Parties | Commissioners Of Greene County v. Harbine. |
| Court | Ohio Supreme Court |
Word "watercourse" synonymous with word "drain," when - County commissioners without authority to convert stream into ditch, when.
The word "watercourse" as used in the county ditch law title 6, ch. 1, Revised Statutes, is synonymous with the word "drain," and the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a ditch.
Certain landowners filed a petition with the county auditor of Greene county praying for the construc- tion of a county ditch beginning at the head of a milldam in Beaver creek, and running thence up the stream to the boundary line between Beavercreek and Bath townships. The milldam is the property of the defendant in error and is used in connection with a feed mill. Such proceedings were thereupon had before the county commissioners as that they found in favor of the improvement and ordered the ditch constructed, although they changed the southern terminus of the ditch so as to run around the milldam instead of beginning at the head of the dam. The exhibit attached to the record fairly shows the course of the ditch as prayed for and as ordered to be constructed. Mr. Harbine then filed his petition in the common pleas court praying for a perpetual injunction, and upon his motion a temporary injunction was granted.
His petition states two grounds upon which reliance was had in support of an injunction.
First. That the county commissioners are without authority to convert a living stream of water, as Beaver creek is admittedly, into a county ditch.
Second. That the petition for a county ditch was an effort to get rid of the milldam without following sections 4567a, et seq Ohio Revised Statutes.
It is averred in the petition that the milldam had been in existence and continuous use for more than sixty years and that the plaintiff and those under whom he claims title had been the owners of the land above and below this milldam and on both sides and of the water rights and privileges connected therewith from time immemorial; and that until about the year 1888 there was a flouring and grist mill belonging to them on the bank of said creek in connection with said dam and by means of which and a head race said mill obtained its water supply; that in the year 1888 the grist mill was destroyed by fire and that the plaintiff subsequently built a feed mill on the site thereof which was then in operation and using said water power. It was denied in the answer that the object and purpose of the petition for the location and establishment of a ditch was to get rid of the milldam without a resort to the statutory methods specially provided in such cases; and it was admitted that in 1893 some of the same persons who had signed the petition for a ditch had filed a petition with the said commissioners praying for a removal of the milldam, and that the commissioners ordered a removal thereof, and that the execution of the order of removal was perpetually enjoined by the court of common pleas of said county in an action instituted therefor by the plaintiff.
The case was heard in the common pleas on a motion to dissolve the temporary injunction, and the evidence, the court overruling the motion, the board of county commissioners answered, to which a general demurrer was sustained. The defendant below not wishing to amend, the answer being insufficient in law, the injunction was made perpetual. The defendant appealed.
In the circuit court the case was heard upon the motion to dissolve the injunction and the evidence for and against the motion. The motion was overruled and thereupon the court passing upon the general demurrer to the answer sustained the same and the defendant, not wishing to amend, the injunction was made perpetual.
Error is prosecuted in this court.
Mr. W. L. Miller and Mr. H. L. Smith, for plaintiff in error, cited and commented upon the following authorities:
Chesborough v. Commissioners, 37 Ohio St. 508; Railway Co. v. Commissioners, 63 Ohio St. 32; Marsh v. Commissioners, 11 Dec. Re., 290; 26 W. L. B., 3; Endlich Interpretation of Statutes, sec. 211; Raudebaugh et al. v. Shelley et al., 6 Ohio St. 307; Pyle v. Richards, 17 Neb. 180; Van Orsdal v. Railway Co., 56 Ia. 470; Luther v. The Winnisimet Co., 64 Mass. 171; Hoyt v. Hudson, 27 Wis. 656; Haff v. Fuller, 45 Ohio St. 495; Frevert v. Finfrock, 31 Ohio St. 621; Lewis v. Laylin, 46 Ohio St. 663; Railway Co. v. Commissioners, 63 Ohio St. 23; secs. 4448 and 4567, Rev. Stat.
Messrs. McMahon & McMahon and Mr. Charles Darlington, for defendant in error, cited and commented upon the following authorities:
Commissioners v. Mighels, 7 Ohio St. 109; Treadwell v. Commissioners, 11 Ohio St. 190; State v. Yeatman, 22 Ohio St. 551; Village v. Commissioners, 71 Ohio St. 133; Woolever v. Stewart, 36 Ohio St. 151; Bliss v. Kraus, 16 Ohio St. 56; Thomas, Sheriff, v. Evans, 73 Ohio St. 140; 51 O. L. B., 7; Haff v. Fuller, 45 Ohio St. 497; Anderson v. Commissioners, 12 Ohio St. 640; Hays v. Jones, 27 Ohio St. 218; McQuigg v. Cullins, 56 Ohio St. 649; Lewis v. Laylin, 46 Ohio St. 663; Lowmiller v. Fouser et al., 52 Ohio St. 137; Musser v. Adair, 55 Ohio St. 476; secs. 4447, 4448, 4450, 4461, 4512, 4567, 4567a, 4567b and 4567c, Rev. Stat.
It is said that the circuit court ruled that the board of county commissioners is without power to locate a county ditch in or over a living stream of water, or, in other words, to convert a living stream of water into a county ditch.
The contention on the part of the defendant in error in support of this ruling is, in brief, that the board of commissioners has only such power as has been expressly conferred; that power had been conferred upon it to construct ditches or drains, and also to straighten, widen or deepen streams and to remove dams; that these powers are distinct so that one does not comprise the others; that the word "watercourse," when used in the statutes relating to ditches, is used as synonymous with drain, and does not include a stream, and that, therefore, the board of county commissioners may not, in the ditch proceeding, widen, straighten or deepen a stream, or convert it into a ditch.
The plaintiff in error contends that:
Attention is also directed to section 4448, Revised Statutes, in which it is provided: "The word 'ditch' as used in this chapter shall be held to include a drain or watercourse."
It does not follow that...
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