Kirk v. Maumee Valley Elec. Co., 279 U.S. 797 (1929)

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Kirk v. Maumee Valley Elec. Co.

No. 674

Argued April 25, 26, 1929
Decided June 3, 1929
279 U.S. 797

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF OHIO

Syllabus

The State of Ohio constructed and owned a canal for the primary purpose of navigation and for the incidental and subordinate purpose of permitting use of its surplus water for hydraulic power. An Act of March 23, 1840, authorized the leasing of such surplus water for hydraulic purposes when not required for navigation, and subject to resumption of use by the state whenever its use for hydraulic purposes should injuriously affect navigation. Having acquired leases under the Act and improved the canal at large expense under a contract with the state, the plaintiff employed the water leased in the business of generating and selling electricity. Later, an Act of May 11, 1927, directed that a section of the canal above the plaintiff’s intake and upon which plaintiff was dependent for its water, should be abandoned for both canal and hydraulic purposes and be held by the state for the purpose of constructing a highway upon the lands occupied by the canal.

Held:

1. That such abandonment did not impair the obligation of the contracts in the leases or deprive the lessee of property without due process, the leases being only incidental to the use and maintenance of the canal for purposes of navigation and imposing no obligation on the state to maintain the canal for any purpose. P. 802.

2. The making of such leases by administrative officers under the granting act after the canal had ceased to be used by the public for navigation, but before the passage of the Act providing for its abandonment, did not constitute an abandonment of the navigation purpose by the state and a devotion of the canal by the State to the sale of water rights free from reserved power to abandon the canal and devote it to other uses. P. 804.

33 F.2d 318 reversed.

Appeal from a final decree of a district court of three judges enjoining the appellants from interfering with the flow of water in part of a canal in such manner as to infringe certain water rights claimed by the appellee.