Hoagland v. New York, C. & St. L. Ry. Co.

• Decision Date: 18 October 1887
• Citation: 13 N.E. 572,111 Ind. 443
• Court: Indiana Supreme Court
• Parties: Hoagland and others v. New York, C. & St. L. Ry. Co.

111 Ind. 443

13 N.E. 572

Hoagland and others

v.New York, C. & St. L. Ry. Co.

Supreme Court of Indiana.

October 18, 1887.

Appeal from superior court, Allen county.

On petition for rehearing. See 12 N. E. Rep. 83.

L. M. Nuide, for appellants. R. C. Bell, for appellee.

Elliott, J.

We have again examined the questions presented in this case, and we can find no reason for receding from our former opinion. It still seems clear to us that the lease under which the appellant claims did not convey any other right than that to use the surplus water not required for the purposes of navigation. The changed circumstances of which counsel so often speak, did not enlarge the subject of the demise. The grantees of the state are not in a different position from that of their grantor, so far as respects the subject of the lease. That was not expanded by anything done by them or any one else. As said by the supreme court of Pennsylvania in Com. v. Pennsylvania, 51 Pa. St. 351: “In determining the meaning of the contract the subject of the grant is very material to be considered; it was surplus water.” When the canal was abandoned, there was no subject upon which the lease could operate, and it ceased to be effective. This result, as the decisions referred to in the original opinion clearly show, the lessor was not bound to prevent. There was no obligation, express or implied, that water should always be supplied, nor that the canal should be so maintained as that the lease should remain operative. On the contrary, the clear implication is that, when the subject of the lease ceased to exist, the rights of the parties under it terminated fully and completely. If this be true, and we can see no reason for doubt, then it must be true that the state or its grantee had a right to do with the canal property what any owner might do. This is substantially the doctrine of Fox v. Cincinnati, etc., 104 U. S. 783, where it was said, in speaking of the canal: “When it was no longer needed, it might be abandoned, and, if abandoned, the water might altogether be withdrawn.”

The appellant did not acquire any corporeal property; all that he acquired was an incorporeal right,-his right was to use the water; for he did not acquire any right to the corpus of the water, much less to any of the land. Ang. Water-Courses, § 90. The incorporeal right which he acquired was to the use of the surplus water; and when the abandonment of the canal for the purposes of navigation made...