Maumee express. [volume] (Maumee City, Ohio) 1837-1838, 1838-02-10

80 Sn AOA 'coi tiio ldUlittH6HtS VIII PARK
at the knees, and exhibit more Of his fair
proportions than he is willing to exhibit
Tor nothingl iii tell you, nv friend. /
mean to write book Yes sir. book
But till my friend Gamaliel writes a
book, / shall leave the matter.
Report of the Committee on the Judiciary. on
the subject Of taking water for Hydraulic
Purposes.
4 SENATE, January 10.
Mr.. Green, from the Standing COM
mittce on the Judiciary, made the fol-
lowing 5s
~ si6 8aa REPORT.
The Standing Committee on the Judi
ciary. TO which was referred memorials
Of sundry freeholders Of the Counties Of
Wood, Henry, Lucas and Hancock,
praying the passage Of law combining
the Board Of Public Works to&he con-
struction Of the Canal along the valley
OF the Maumee river, for the purposes
Of navigation only, have had the subject
under consideration, and now report
That the memorialists set forth in sub
stance, that the Counties named are gen.
orally destitute ofwater power, except
on toe rapids of the Maumee River,
which when improved will supply no
more to those counties, than is necessary
for mills and other manufactures. That
they purchase their lands with reference
to these natural advantages, and have To-
Gated themselves, confident that they
could not be deprived Of them. That
they are informed, and believe, that the
Board Of Public Works are about 10 take
the water Of that river from its natural
channel, for the purpose Of creating hy-
draulic power, at distance from the
the natural falls; and pray the passage
Of a law to restrain the Board from Ia
king more water than may be necessary
10 supply the contemplated Canal for
navigation.
The proprietor of lands upon water
course, before the location Of Canal by
the State, has complete and perfect
right to the use of the water, as il flows
through and over his lands, subject to the
restriction, that he shall transmit it by
lis natural channel to the occupant below
him, and shall not flow the lands of the
proprietor above him. II the stream be
declared navlgable, the public have an
easement OF navigation, which imposes
the further duty so to use the water as
not to obstruct that easement. This
right is not property in the water itself.
but to the use OF it flowing in its natu-
raj channel; but it is, nevertheless. such
an interest as can only be divestcd or Ia
ken away, as the soil of the banks NAV
G, and upon the same principle; ana
his, whether the same .5e a navigable
river or not.
By the ord n,nce of I7S7,'t is stipula-
ted that the navigable waters leading
into the Mississippi and St. Lawrence,
and the carrying places between the
same, shall be common highways, and
forever free, as well to the inhabitants Of
said territory as to the citizens of the
United States, &C." Whether the Mau-
NEE river be navigable stream or not,
1t is unnecessary, perhaps, here to in
quire; if so, it must be in a practical
sense, and so the framer Of The ordi.
nance must have so considered il.
Conceding, however, that ii is so, it
does not chang e the rights of the owners
OF the lands. They own, each, 10 the
centre of the stream, subject to the lease.
mea: Of navigation in the public. Ia The
case Of Gavit VS.. Chambers, Sd Ohio
Reports, 495, the Supreme Court Of Ohio
have clearly and correctly stated the
doctrine. They say" it was not the in.
tention Of the United States to reserve
any interest in the bed, banks or water
OF the rivers in the State, other than the
use for navigation to the public, which IS
distinctly, in The nature Of an easement.
and all grants oflanis upon such waters,
are subject to the rule Of common law
ihls rule OF common law, referred 10 by
The Court, is plain rule of common
sense It is, q that he who owns the lands
upon both banks, owns the entire river.
subject only to the easement OF naviga-
ton; and ne who owns the land upon
one bank only, owns the land to the mid
die OF the river, subject to the same ease
nent.
The rule laid down by the Supreme
Court OF Ohio is recognised in England,
and in several of the sister States.
The right to the use Of the waters of
the Maumee river and its tributaries.
as they flow over and through the lands
which bound them, is then private