Fox v. Cincinnati

Decision Date01 October 1881
Citation104 U.S. 783,26 L.Ed. 928
CourtU.S. Supreme Court

ERROR to the Supreme Court of the State of Ohio.

The facts are stated in the opinion of the Court.

Submitted by Mr. Timothy D. Lincoln and Mr. Charles Fox for the plaintiff.

There was no opposing counsel.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

By the laws of Ohio the board of public works was authorized to sell or lease, for hydraulic purposes, the surplus water in the canals of the State not required for the purposes of navigation. This included water passing round the locks from one level to another; but it was expressly provided that no power should be leased or sold, except such as should accrue from surplus water, 'after supplying the full quantity necessary for the purposes of navigation.' The laws also required that every lease or grant of power should contain a reservation of the right to resume the privilege, in whole or in part, whenever it might be deemed necessary for the purposes of navigation. In case of resumption, the rents reserved were to be remitted or correspondingly REDUCED. REV. stat. 1880, sectS. 7775-7778; act of march 23, 1840, Laws of 1840, p. 174, sects. 20, 21, 22, 23.

The State owned, among others, the Miami and Erie Canal, having one of its termini at the city of Cincinnati, where it connected with the Ohio River through a series of locks, beginning on the east side of Broadway, a street in the city. A lease was made by the board of public works of the water which passed around one of these locks, known as lock No. 8, for hydraulic purposes. Provision was made, in accordance with the requirements of the law, for a resumption of the privilege, if deemed necessary for the purposes of navigation, &c. Fox became the owner of this lease as early as 1855.

On the 24th of March, 1863, a statute was enacted, under which a grant was made to the city of that part of the canal between Broadway and the river, for a public highway and sewerage purposes, but subject to all outstanding rights or claims, if any, with which the grant might conflict. No work could be done by the city upon the granted premises until its plan of improvement should be approved by the board of public works. Sect. 2 of the statute authorizing this grant is as follows:——

'The said grant shall not extend to the revenues derived from the water privileges in said canal, which are hereby expressly reserved; and the said grant shall be made upon the further condition that the said city, in the use as aforesaid of all or any of said portion of said canal, shall not obstruct the flow of water through said canal, nor destroy nor injure the present supply of said water for milling purposes, and that said city shall be liable for all damages that may accrue from such obstruction or injury; but it is not intended hereby to relieve the lessees of said canal, or their assignees, from any responsibilities imposed upon them by 'An act to provide for leasing the public works of the State,' passed May 8, 1861, or by the instrument of lease executed in pursuance of said act, except as and to the extent that they may be interfered with, as said city may from time to time, enter upon, improve, and occupy any part of said...

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21 cases
  • Reichelderfer v. Quinn
    • United States
    • U.S. Supreme Court
    • December 5, 1932
    ... ... The beneficial use and hence the value of abutting property is decreased when a public street or canal is closed or obstructed by public authority, Meyer v. Richmond, 172 U.S. 82, 95, 19 S.Ct. 106, 43 L.Ed. 374; cf. Whitney v. New York, 96 N.Y. 240; Fox v. Cincinnati, 104 U.S. 783, 26 L.Ed. 928; Kirk v. Maumee Valley Co., 279 U.S. 797, 802, 803, 49 S.Ct. 507, 73 L.Ed. 963; Smith v. City of Boston, 7 Cush.(Mass.) 254; Stanwood v. Malden, 157 Mass. 17, 31 N.E. 702, 16 L.R.A. 591; or a street grade is raised, Smith to Use of Cushing v. Washington, 20 How. 135, 15 ... ...
  • Bannon v. Town Court Nursing Ctr.
    • United States
    • U.S. Supreme Court
    • June 23, 1980
    ... ... , 18 How. 272, 276, 15 L.Ed. 372 (1856) (Fifth Amendment "cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will") ... 6. This common-sense motion is supported by the Court's holding nearly a century ago in Fox v. Cincinnati , 104 U.S. 783, 26 L.Ed. 928 (1882). Ohio had dredged the Miami and Erie Canal which had one of its termini at the Ohio River in Cincinnati. Pursuant to statutory authority, the State entered into contracts with owners of land bordering the canal. Under these contracts, the State provided the ... ...
  • Colorado Soc. of Community and Institutional Psychologists, Inc. v. Lamm
    • United States
    • Colorado Supreme Court
    • July 20, 1987
    ...legitimate expectation or entitlement to practice psychology under repealed exemptions to the Act. Cf. Fox v. Cincinnati, 104 U.S. (14 Otto) 783, 26 L.Ed. 928 (1881) (where a state leased surplus water in a public canal to private parties, but reserved the right to resume using it for a pub......
  • Locke v. Bowman
    • United States
    • Missouri Court of Appeals
    • November 12, 1912
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