# Binney v. Chesapeake and Ohio Canal Company

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United States Supreme Court
33 U.S. 201
Binney v. Chesapeake and Ohio Canal Company
ON appeal from the circuit court of the United States from the county of Washington in the District of Columbia.
The appellant, on the 5th day of December 1831, filed a bill in the circuit court of the county of Washington, against the appellees, by which he charged that he and those under whom he claims, held title to, and were in possession of three adjacent tracts of land on the shore of the river Potomac, and where the said river is innavigable, prior to the year 1784.
That these lands being situated on that part of the river called the Little Falls, were susceptible of being improved by applying the water of the river for manufacturing purposes; and were, prior to the year 1784, intended by the proprietors to be so improved.
That when the charter of the Potomac Company was granted, in 1784, by Maryland and Virginia, it was known that such improvement was intended;-and the charter expressly secured the rights of such proprietors by the thirteenth section of the act of incorporation, which is in these words:--
Sec. XIII. And, whereas some of the places through which it may be necessary to conduct the said canals may be convenient for erecting mills, forges, or other water works, and the persons possessors of such situation may design to improve the same, and it is the intention of this act not to interfere with private property, but for the purpose of improving and perfecting the said navigation, Be it enacted, That the water, or any part thereof, conveyed through any canal or cut, made by the said company, shall not be used for any purpose but navigation, unless the consent of the proprietors of the land through which the same shall be led be first had; and the said president and directors, or a majority of them, are hereby empowered and directed, if it can be conveniently done to answer both the purposes of navigation and water works aforesaid, to enter into reasonable agreements with the proprietors of such situation concerning the just proportion of the expenses of making large canals or cuts, capable of carrying such quantities of water as may be sufficient for the purposes of navigation, and also for any such water works as aforesaid.
In the year 1825, the Chesapeake and Ohio Canal Company obtained a charter, and by this charter and the proceedings under it this company has obtained a surrender from the Potomac Company of all its chartered rights and privileges and property, and now holds the same, 'in the same manner and to the same effect,' as they were before held by the Potomac Company.
The bill charges that in the year 1793, the Potomac Company made a condemnation under its charter of a portion of these lands for a canal, which is exhibited; and made a canal through the same, which was so constructed as to admit more water than was necessary for navigation; which surplus water was wasted on the lands of complainant, at four sluice gates, and three waste dams, and continued to be so wasted at such places, during the continuance of the words of said company.
The complainant further charges that, since their incorporation, and the surrender of the charter of the Potomac Company, the Chesapeake and Ohio Canal Company have taken possession of the canal of the former company, and of the land so condemned, and have also entered upon other parts of his said land not condemned, and have greatly enlarged and deepened the said canal, and constructed a part of it as a feeder for their main canal, and erected a permanent stone dam across the river, and introduced therein a large quantity of water, for the purpose, as appears, in their own reports, memorials and proceedings, of obtaining 'a large volume of surplus water to sell for manufacturing purposes, and to be applied to other canals to be hereafter authorized.'
The bill further charges that, these works may, if necessary in order to introduce more water into the canal, be enlarged; and though the complainant avers that the quantity of water now admitted, is abundant both for navigation and for manufacturing purposes, yet he declares that he has always been, and yet is willing, to make an equitable arrangement to pay a fair proportion of the expense of such enlargement, if the same should be adjudged necessary.
The complainant further charges, that by these works of the said two companies it has been made, if not impracticable, yet very expensive and difficult for him to apply the water of the river to works upon his lands, without taking the same out of the said canal and feeder. He contends that, under these charters, he is entitled to be allowed the use of the surplus water out of the canal and feeder, and complains that the defendants have wholly refused to admit him on any terms to use the said surplus water, or to make any equitable agreement for the enlargement of the works, if they shall contend that such enlargement is necessary; and that they avow their determination to take the water through his said lands without his being allowed in any manner or upon any terms the use of said water, and to dispose of the same, after passing through his lands, at such places as they are allowed by the present charter to waste the same, for their own benefit and profit, and also to sell the same wherever they may find it advantageous to do so, if they can obtain an amendment of their charter to authorize them so to do, for which amendment they are now making application.
The complainant prays to be relieved against these wrongs, to be allowed to use the surplus water now admitted into the canal and feeder, which he avers is abundant both for navigation and manufacturing purposes, and if found insufficient, then to be allowed to have the works enlarged upon equitable terms to admit a sufficient supply of water for both purposes-and also prays for general relief.
The answer denies the right of complainant to the relief sought, or to any relief; denies that he, or those under whom he claims, had any right to use the water of the river on their lands for manufacturing purposes, prior to the charter to the Potomac Company in 1784; denies that such right, if he has it, has been affected by the works of either company; denies his right to any use of the water under the charter of that company, and under the charter of the present company; admits that they have enlarged the canal and feeder, so as to receive more water than is necessary for navigation; and 'that a considerable quantity of surplus water might be used and expended on that part of the canal adjacent to the lands claimed by complainant, and through said lands, without injury to the navigation of said canal;' and 'claims the said water as their sole and exclusive property,' and insists that 'they possess the same right, in disposing of the same, to determine where it shall be vented from the canal, and in what quantities, and upon what terms it shall be enjoyed by others, as they have in exercising similar acts of ownership over any other description of property to which their title is absolute and unconditional.'
It was agreed, that the complainant has title to the lands set forth in the bill; and the location of the said lands, and their susceptibility of improvement for manufacturing purposes, were admitted to be as set forth in the bill.
The appellant made the following points.
1. That the complainant, and those under whom he claims, had the right to apply the water of the river to manufacturing purposes on the said lands, prior to the act of 1784, incorporating the Potomac Company.
2. That this right was affirmed and secured by that act, and the terms and manner of exercising it provided for.
3. That the charter of the Chesapeake and Ohio Canal Company does not impair this right.
4. The lands owned by the complainant having the entire and sole command of the falls, and no proprietor of lands below him being able to get the water without taking it through his land, the Chesapeake and Ohio Canal Company cannot condemn his land, and construct their works so as to take the water through his land, and dispose of it on lands below him, without his consent.
5. The company have no right to take his land, or construct their works so as to admit more water into their canal than was necessary for the purposes of navigation; and this, the evidence, and their own reports and proceedings, show they have done.
6. The Potomac Company, having constructed their canal, and established slucices and waste dams for the discharge of surplus water on the complainant's lands for more than twenty-five years, which surplus water could have been applied to manufacturing purposes, (as proved by the evidence of Payne, Pierce and Thompson) the present company are bound to allow the complainant the use of an equal quantity of the surplus water on his said land.
7. The company, having purposely introduced more water than was necessary for navigation, with a view to dispose of it for their own benefit, cannot take it through the complainant's land, and dispose of it under their charter, even at places where it may be necessary to waste what was thus introduced.
8. That the said company have no right to enter upon, or condemn any lands of the complainant, not included in the condemnation of the Potomac Company; congress not having given any such power of entry or condemnation, and congress having no right under the constitution and acts of cession of Maryland and Virginia to give such power.
The case was argued by Mr Key and Mr Webster, for the appellant; and by Mr Swann and Mr Coxe, for the appellees.
The court gave no opinion upon any of the questions argued in the case, other than those arising out of the thirteenth section of the act incorporating the Chesapeake and Ohio Canal Company, as to the power and obligation of the company to enter into arrangements with the owners of the lands adjacent to the canal, respecting the use of the water introduced into the canal 'for the purpose of carrying on water works of various descriptions, when it could be done conveniently.' The counsel for the appellees denied, that under the charter of the company, they were compelled to make agreements for the use of the surplus water; or that the owners of land, through which the canal passed, claiming as riparian proprietors, could oblige the company to enlarge the canal, or to permit it to be enlarged so as to introduced a surplus quantity or water to be used for the supply of manufacturing power.
Mr Justice THOMPSON delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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