State v. Snook

• Decision Date: 17 December 1895
• Citation: 53 Ohio St. 521,42 N.E. 544
• Parties: STATE et al. v. SNOOK.
• Court: Ohio Supreme Court

42 N.E. 544

53 Ohio St. 521

STATE et al. v. SNOOK.

Supreme Court of Ohio.

December 17, 1895

Error to circuit court, Summit county.

Action by Frances Snook against the state of Ohio and Andrew Jackson. From a verdict for plaintiff, defendants bring error. Reversed.

Frances Snook (the general assembly having authorized the joining of the state as a party defendant) brought suit against the state and Jackson, as its lessee, to recover possession of real estate described in her petition; it being a portion of lots 233 and 234 on the plat of Akron, lying between the navigable portion of the canal and a portion of said lots which, as the parties agree, she owns and occupies. The portion of said lots in controversy is occupied in part by a basin of the canal, in part by a dike whereby the waters of Wolf run are prevented from entering the basin at that point as they naturally would, and in part by a substituted channel of said run, through which its waters are carried alongside said basin to the second lock below, where they are used to feed the waters of the canal for locking boats to and from the next lower level, the surplus being used for hydraulic purposes. The petition and answer joined issue on the title in fee. On the trial the plaintiff introduced a survey and plat of Akron, showing that these lots, among others, ‘ as marked on the map, have not yet been surveyed or staked out on the ground, the survey of which is to be deferred until the canal is made, and may be enlarged or diminished in size as may be found convenient when the ground is prepared for their actual location.’ This plat was made in November, 1825. She also introduced a deed from Williams and wife (under which both parties claim title) to the state dated May 13, 1826, whereby the whole of lots 233 and 234 were conveyed to the state in fee, ‘ in aid of the canal funds of said state,’ and two deeds from Gov Lucas, one dated January 10, 1834, and the other February 2 1835, the former conveying lot 234 to Thomas May in fee, and the latter conveying lot 233 to George Kirkum in fee. Both deeds recite that they are executed in pursuance of an act of the general assembly, entitled ‘ An act to provide for the increase of the canal fund by the purchase and sale of real estate for and on behalf of said state,’ passed February 7, 1826. It is admitted that, by the mesne conveyances put in evidence, Mrs. Snook established her claim to the title conveyed by said deeds to May and Kirkum. The canal, including the basin, the embankment, and the substituted channel of Wolf run, was constructed after the execution of the deed of Williams to the state, and before the execution of the deeds from the state to May and Kirkum. Other facts material to the points decided are stated in the opinion.

The court gave, among others, the following instructions to the jury: ‘ Now, as to this Williams deed, I say to you that its effect was to convey to the state lots 233 and 234 not for the purpose of constituting its canal, but in aid of the canal funds of said state, which implied that the lots might be converted into money by sale; and unless you shall find from the evidence that, subsequent to accepting this deed, the state altered the boundaries of the lots with respect to the basin front, I will limit it to the basin front now. They are to the considered by you as extending to the water of the basin as it existed, for lot 233, at the date of the Kirkum deed, and, as to lot 234, at the date of the T. P. May deed, as you shall find it to have been from the evidence,-so as to give said purchasers, their heirs and assigns, the privilege of building wharves and warehouses thereon convenient for commerce, by extending the lines of said lots straightforward to the water, where the same then was of sufficient depth for the purpose aforesaid. But, it being conceded by the plaintiff that this land does not extend beyond the piling, you need not go further west for the westerly line of said lots. Whether the state appropriated any of the lands in contention, and, if any, how much, by eminent domain, is a fact for you to find from the evidence; and this you must find, if you so find the fact to be, from other evidence than the simple fact of the occupancy of the lands for the purpose of constructing and maintaining the lower basin, or the ditch for passing the waters of Wolf run. * * * Whatever lands you find were embraced in lots 233 and 234, as conveyed by the state to T. P. May and Kirkum, you may presume to have been such lands as the state had a right to sell for the purpose of increasing the canal fund, and not such lands as the state appropriated by eminent domain, from the fact that the state conveyed the same, and from the recitals in the Williams deed, and the two deeds to May and Kirkum, notwithstanding the fact that the raceway was then, or since has become, the substitute or bed of Wolf run, and the use of the basin for canal purposes. We hold that it was then competent for the state to determine whether it owned the lands embraced in those lots for canal purposes alone, or not, and that its determination in that respect cannot at this late day be questioned by the defendant Jackson or the state.’ The following instruction requested by the state was refused. ‘ Seventh request: If you find that, prior to the construction of the Ohio Canal, Paul Williams deeded to the state of Ohio lots 233 and 234 of the town plat of South Akron, and that after receiving said deed the state constructed upon a portion of said lots a canal basin, embankment, and race, as a premanent part of the said canal, and that after constructing the same, and filling the said basin with water, in...