French v. Gapen Spears v. Gapen

• Decision Date: 01 October 1881
• Citation: 26 L.Ed. 951,105 U.S. 509
• Parties: FRENCH v. GAPEN. SPEARS v. GAPEN
• Court: U.S. Supreme Court

105 U.S. 509

105 U.S. 509

26 L.Ed. 951

FRENCH v. GAPEN.

SPEARS

v. GAPEN.

October Term, 1881

APPEALS from the Circuit Court of the United States for the District of Indiana.

The facts are fully stated in the opinion of the court.

The cases were argued by Mr. John Morris, Mr. Ralph Hill, and Mr. Samuel Shellabarger for the appellants, and by Mr. Solomon Claypool and Mr. R. S. Taylor for the appellees.

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

The State of Indiana constructed the Wabash and Erie Canal from La Fayette, on the Wabash River, through Delphi and Fort Wayne, to the Ohio State line. To meet the expense of this undertaking a large bonded debt was created, and secured in a general way by statutory provisions of a character similar to those contained in sect. 5 of an act of Jan. 9, 1832, authorizing the first issus of bonds, and which is as follows:——

'That for the payment of the interest, and the redemption of the principal of the sums of money which may be borrowed undr the authority of the General Assembly, for the construction of said canal, to the extent of the estimated cost thereof, in the first section of this act stated, there shall be, and are hereby, irrevocably pledged and appropriated all the moneys in any manner arising from the lands donated by the United States t this State for the construction of said section of canal, the canal itself, with the said portion of land thereto appertaining, or as much thereof as will realize by sale the sum borrowed, and all privileges thereby created, and the rents and profits thereof belonging to the State, and the net proceeds of tolls collected on said canal, or any part thereof as finished; the sufficiency of which, for the purposes aforesaid, as above allowed and provided for, the State of Indiana doth hereby irrevocably guarantee.' Acts 1832, p. 2.

From the beginning, the use of water for hydraulic purposes, when not needed for navigation, seems to have been contemplated, and ample provision was made by statute for acquiring the necessary land and effecting leases of power. With a view to this end, the following 'Act relative to water-power at the town of Delphi' was passed and approved Jan. 9, 1842:——

'SECT. 1. Be it enacted by the General Assembly of the State of Indiana, that it shall be the duty of the engineer, or other person having charge of the Wabash & Erie Canal, on or before the first day of May next, to let by contract, to the lowest bidder, the clearing out and removing all obstructions from the bayon which extends from the canal, at the said town, to the Wabash River, for the purpose of creating water-power upon the said canal at that place.

'SECT. 2. Be it further enacted, that said engineer or other person, before letting the said work, shall give public notice of the terms, conditions, and also the time of the said letting, by publishing the same in the newspapers printed in the said county, for two months, at least, previous to the time of said letting: Provided, that the said works shall be finished within six months from the time of said letting.

'SECT. 3. 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; and the person or persons doing the said work shall look to the said rents for their pay, and to no other source whatever; and as fast as the said rents may be due or received, they shall be expended in paying for the said work until the whole amount is paid.

'SECT. 4. Be it further enacted, that so soon as the said work is let to some responsible person, it shall be the duty of the said engineer, or other person, to lease out a portion of the water-power by this act created, not exceeding in all what would be sufficient to propel thirty run of stones, at the same prices and upon the same terms and conditions as water-power under similar advantages is leased at other places upon the said canal, and it is made the duty of the said engineer, or other person, before leasing the same, to give at least two months' notice of the time, terms, and conditions upon which the same will be leased, in the newspapers published in the said county.

'SECT. 5. Be it further enacted, that it shall be the duty of the said engineer, or other person, as the agent on behalf of the State, for the purpose of securing to the State the advantages by this act contemplated, to purchase of the owner or owners of land lying adjacent to the place where said water-power is to be located, such real estate, not exceeding in all four acres, as may be necessary to carry into effect the provisions of this act, at such reao nable prices as may be agreed upon by the said agent and the owner or owners thereof; and in case of disagreement at such prices as may be fixed by persons chosen by the said agent and the said owners: Provided, that in no case shall the prices paid by the State for such land exceed what has heretofore been paid for such property under the same or similar advantages, and for such real estate so purchased the said agent shall take a conveyance to the State by deed in feesimple:

And Provided further, that nothing in this act contained shall be so construed as to authorize any interference whatever with the navigation of said canal.

'SECT. 6. Be it further enacted, that this law shall be in force from and after its passage.'

Under the authority of this act, James Spears and Reed Case entered into a contract with the State to do the work required upon the terms proposed, and before the 1st of December, 1843, had it all done. On the 19th of January, 1846, another act was passed, by which it was made the duty of the officer having charge of the canal east of Tippecanoe to settle as soon as possible with the contractors, and give them a certificate for the amount found their due, to be paid out of the rents derived from the power created by what had been done, and also providing that the certificate should draw interest from the time the contract was completed until paid.

The settlement contemplated by this act was effected on the 29th of September, 1847, and the following certificate issued:——

'DELPHI, Sep. 29, 1847.

'I hereby certify that Spears & Case have performed work to the value of $10,354 20/100 in cleaning out the bayou which extends from the canal at Delphi to the Wabash River, estimating according to the terms of a contract between said Spears & Case and S. Fisher, commissioner of the W. & E. Canal, dated May 1, 1842, made in pursuance of an act entitled 'An Act relative to waterpower at the town of Delphi, in Carroll County, approved January 20, 1842.' And according to the provisions of an act entitled 'An Act authorizing a settlement with Spears & Case for work done on the side cut at Delphi, in Carroll County, approved January 19, 1846,' the said Spears & Case are entitled to receive interest on said sum until paid. And I certify also that said work was performed prior to the first day of December, 1843.

'S. FISHER,

'Gen'l Sup't W. & E. Canal.'

On the twenty-ninth day of May, 1846, the State leased to George Robertson, at an agreed rent, a sufficient amount of power made available by the work done by Spears & Case to propel three run of stone. Of this lease Enoch Rheinhart is the present assignee and owner. He still uses the water. All the rents derived from this lease down to Nov. 1, 1875, have been paid and accounted for to Spears & Case.

In the construction of the canal it became necessary to take the water from the St. Joseph River, near Fort Wayne. In doing this the power which supplied certain mills that had been erected on that river by Henry Johns was taken away, and on the 11th of February, 1843, the following statute was passed for his relief:——

'AN ACT for the relief of Henry Johns.

'WHEREAS, Henry Johns, of the county of Allen, previous to the commencement of the Wabash & Erie Canal, was the owner of a valuable mill privilege or water-power on the St. Joseph River, and had erected valuable mills thereon; and whereas, the State of Indiana did afterwards erect a feeder-dam, to supply with water the summit level of the Wabash and Erie Canal, above the mills erected by said Johns, on the St. Joseph River, thereby abstracting from the mills aforesaid about 5,000 cubic feet of water per minute, which, in low stages of water, is all the water contained in the said river St. Joseph, and renders wholly useless the mills erected by said Johns; therefore——

'SECT. 1. Be it enacted by the General Assembly of the State of Indiana, that the commissioner of the Wabash and Erie Canal be, and is hereby, directed to cause to be supplied t the said Henry Johns, his heirs and assigns forever, from the Wabash and Erie Canal, at the town of Fort Wayne, in the county of Allen, on land now owned or to be purchased by said Johns, a sufficient quantity of water to propel three pair of burr millstones free of any toll or water-rent, and continue to supply the same for the use of said Johns, his heirs and assigns forever, at all times when the same shall not be needed to fill the contracts heretofore made with Samuel Edsall and Hamilton & Williams, or required for the purpose of navigating said canal: Provided, that the said Johns shall, for himself, his heirs and assigns, release to the State of Indiana all claims against the State for the abstraction of water from the St. Joseph River to supply the Wabash and Erie Canal, and shall also credit in full any or all awards or judgments that shall have been recovered by said Johns against ...