The Ohio Democrat. (Logan, O. [Ohio]) 1886-1906, 1895-03-20
CONSTITUTIONAL.
JUDGE PUGH SUSTAINS THE ACT
OF THE LEGISLATURE.
Granting the c., II. v. & A. Railroad
Right of Way Over the
Hooking Canal.

the suits brought by Thomas Shot
well, Robert Wright, Fred Horn
and Michael Vought, pa ties living
along the Hooking Canal, between
Carroll and athens, for the purpose
of preventing the construction Of
the Columbus, Hooking Valley &
Athens road from Columbus to
Athens.
May lS, 1894, the Legislature
passed n law, known as the Earn
hart act, giving the company the
right of way over the Hooking Ca
nal upon the payment of $4,000 rs
rental for five years in advance,
and $4,000 per year for 80 years,
beginning with 1900. "A Chicago
company hid for the franchise, but
failed to get it. Then these parties
brought suit to enjoin the building
of the road, claiming that the law
granting the right of way was un-
constitutional because it attempted
to- break II contract made years ago
between the State and the United
States when Congress granted II
| large lot of land to the State for ca
nal purposes. Congress granted
the land in 1923 to aid the State in
paying the debt incurred or to be
incurred for constructing the ca
mails exclusively, and it was stipu-
lated that the United States should
have a perpetual right to have
their property, and persons in
their service, to pass along the ca
nails as public highways.
Shotwell, one of the plaintiffs,
leased from the State the surplus
water from the canal to sprinkle
the streets of Logan. Judge Pugh
held against the plaintiffs in every
particular. In short the opinion of
the court was to the effect that the
parties who brought these suits
had no legal foothold in the courts,
because if anybody is the complain-
ant it is the Government of the
United States and not the plaintiffs.
Judge Pugh said sprinkling the
reefs in Logan might be the hy-
drolic use of water there, but it
could hardly be so construed else
where. Plaintiffs, as mere tax pay
ers, could not prosecute because of
an impairment of contract be-
tween the United States and the
State of Ohio. Each suit must stand
only for the property represented
by the party bringing it. No single
suit could tie up the entire right of
way along the entire canal. The
/ right of the State to abandon the
canals was now no longer any ques-
ton. Commerce had changed since
these land grants had been
made, and no single lessee could
stand before the great strides of
commerce.
The claim had been made that
the law granting the right of way
was a special act and therefore un-
constitutional. Judge Pugh held
that as all the people of Ohio had
an interest in the canals this was
general law. Then he held that be-
ing a general act, il it gave corpor.
ate power GAS the ohjectors claimed)
that it did not invaliIate it. But
the court said it did not give cor.
pofate power, IN fact.
1t has been urged that another
company, a corporation composed
of other capitalists, which had lar
ger capital, would have offered
more for the right of way and
would have built its road sooner
than the Columbus, Hooking Val.
ley & Athens company. The court
had nothing to do with this. 1t
would. be IA piece of audaciousness
for the courts to interfere with the
rights of the Legislature.
Part of the Hooking canal was
decided to the State by the Lancas-
ter Lateral Canal Company, which
acquired its title from the abutting
land owners. Plaintiffs claimed
that the Lateral Canal Company
only had and only gave the State
an easement, while the State now
sought to make fee simple title to
the railroad company. Judge Pugh
! said the State had II fee simple title
and plaintiffs were too late in max
ing this objection, AS fifty years had
elapsed since the State had received
their title by deed from the COM
pany.
Estoppel was also pleaded against
the road, but Judge Pugh said as
the plaintiffs could not plead estop.
pei against the State, they could not
p etd 1t against the States assignee.
Judge Pugh said that the injunc-
tion suits in this controversy, as
brought by the individual property
owners, could only relate to the
subject rs far as 1t affected the land
owned by the individual. In cas-. 8
of street injunction suits the citi-
zen eDjOins because he has ease
ment rights in the streets, but in u
canal he can have no such rights,
unless he is obliged to cross the ca
nal in order to get to his land, and
even then 1t was doubtful whether
he had such a right. The demurr-
ers were sustained, and unless the
petitions can he amended, the ef-
feet of this ruling will be that all
iDjunctiOns will he dissolved, and
unless the cases are taken to the
higher court, the building of the
road will go on.
All Wages Raised.