176 U.S.

469
20 S.Ct. 393
44 L.Ed. 548

JOHN J. WALSH, Plff. in Err.,

v.
COLUMBUS, HOCKING VALLEY, & ATHENS RAILROAD
COMPANY.
No. 90.
Submitted December 13, 1899.
1

This was a petition filed in the court of common pleas of Franklin county, Ohio,
by the plaintiff, Walsh, to enjoin the defendant railroad company from entering
upon the property of the Lancaster Lateral Canal Company, and upon plaintiff's
premises, and from constructing a railroad thereon, and for a decree Declaring a
certain act of the General Assembly of ohio giving it permission to do so to be
null and void.

The case was determined upon demurrer to the petition, which set forth
substantially the following facts: On February 4, 1825, the general assembly of
the state passed 'An Act to Provide for the Internal Improvement of the State of
Ohio, by Navigable Canals' (23 Ohio Stat. 50), among which was the Ohio
canal, extending from the mouth of the Scioto River, through the state of Ohio,
to Lake Erie, and passing through the village of Carroll, in the county of
Fairfield. On February 8, 1826, the Lancaster Lateral Canal Company was
incorporated by act of the general assembly (24 Ohio Laws, 71), and authorized
to construct and operate a cana 'from the town of Lancaster to such point of the
Ohio canal as shall be found most eligible.' The village of Carroll was fixed
upon as the terminus.

On May 24, 1828, Congress passed an act to aid the state of Ohio in the
construction of its canals (4 Stat. 305), by the 5th section of which act (printed
in full in the margin) Congress granted to the state 500,000 acres of land in that
state for this purpose with a proviso that 'the said canals, when completed or
used, shall be and forever remain public highways for the use of the
government of the United States, free from any toll or charge whatever, for any
property of the United States or persons in their service passing along the same.
The 7th section of the act declared that 'this act shall take effect, provided, the

legislature of ohio at the First session thereof, hereafter to commence, shall

express the assent of the state to the several provisions and conditions hereof;
and unless such expression of assent shall be made this act shall be wholly
inoperative.'
4

Pursuant to this act, the general assembly of the state of Ohio on December 22,
1828, passed an act expressly declaring the assent of the state, to the provisions
and conditions of the act of Congress. Under these acts the state received and
took possession of the 500,000 acres of land provided by the grant, and from
time to time sold and disposed of the same, and received from the proceeds of
such sale somewhat more than $2,200,000.

The Lancaster Lateral Canal Company, incorporated as above stated, proceeded

to construct and operate its canal under its charter until December 22, 1838,
when it sold and conveyed the same to the state of Ohio, under an authority
conferred upon the board of public works, by an act passed March 9, 1838, for
the sum of $61,241, which was paid to the company out of the funds realized
by the state from the sale of the congressional land grant. The canal was
subsequently, under an act of the legislature, extended from its terminus in
Lancaster to the town of Athens, in Athens county, was opened as a continuous
line of canal for navigation purposes prior to January 1, 1842, and this
extension was also paid for by moneys realized from the sale of the land grant.

The complaint further averred that 'ever since the construction of said canal,
which is and has been known as the Hocking canal, the same has been and still
is a public highway, which has been used for the use of the state of Ohio and
the government of the United States, in pursuance of the several acts of
Congress and of the general assembly of the state of Ohio, hereinbefore set
forth.'

On April 12, 1894, the Columbus, Hocking Valley, & athens Railroad
Company, defendant herein, was organized and incorporated for the purpose of
building a railroad from the city of Columbus, through the counties of Franklin,
Fairfield, Hocking, and Athens, to the city of Athens, and on the 18th day of
May, 1894, the general assembly of the state passed an act for the abandonment
of the Hocking canal for canal purposes, and for leasing the same to this
railroad company. 91 Ohio Laws, 327. The act is printed in full in the margin.
The 4th section of the act provided that the railroad company should have the
exclusive right during the term of the lease (ninety-nine years) 'to use and
occupy the property aforesaid, or so much thereof as may be necessary, for the
purpose of constructing, maintaining, and operating a railroad thereon. Said
company shall not disturb any vested rights or privileges of abutting property

holders along said canal, and shall hold the state harmless from all loss or
damage resulting to such property holders by reason of the construction and
operation of said railroad.'
8

The plaintiff further averred that the defendant was making preparations to
build its road upon the line of the canal, and was threatening to take possession
of his property without having acquired the rights and interests in the said lands
and tenements belonging to the plaintiff, whose lands are located on both sides
of the Hocking canal, about 5 miles north of the city of Lancaster, in Fairfield
county, and without having purchased or acquired by condemnation or
otherwise the right to enter upon said lands and to construct said railroad. That
such road will constitute a permanent trespass upon plaintiff's property, and will
place large additional burdens upon his lands, which will render the same
inconvenient and difficult of access; and great and irreparable injury will be
done in the premises unless the defendant be restrained by an order of the court
from taking possession of said canal and the said premises of plaintiff and
constructing this railroad thereon.

The gist of the complaint lies in the allegation that the act of May 18, 1894,
authorizing the abandonment of the canal, conflicts with that clause of the
Constitution which provides that 'no state shall pass any law impairing the
obligation of contracts,' and also with several provisions of the Constitution of
Ohio not necessary to be here enumerated.

10

A general demurrer was filed to this petition, which was sustained by the court,
and the petition dismissed. Plaintiff appealed the case to the circuit court,
which also sustained the demurrer, whereupon plaintiff appealed the case to the
supreme court of the state, which reversed the judgment of the circuit court, and
ordered that the railroad company be enjoined from entering upon the lands of
the plaintiff until it had condemned and paid for the additional burden of
constructing and operating the railroad on the land, according to law. 58 Ohio
St. 123, 50 N. E. 442.

11

Upon motion of the plaintiff the court certified that in the rendition of this
judgment it became material to determine whether the act of May 18, 1894, was
repugnant to the contract clause of the Constitution, and ordered it to be further
certified that the court adjudged that it was not in violation of or repugnant to
such clause, and that such act was valid and binding upon the plaintiff.
Whereupon plaintiff sued out a writ of error from this court.

12

Messrs. J. B. Foraker, T. E. Powell, and D. J. Ryan for plaintiffs in error.

13

Messrs. C. H. Grosvenor, D. L. Sleeper, and John J. Stoddart for defendant in

error.

14

Mr. Justice Brown delivered the opinion of the court: 1. Motion was made to
dismiss the writ of error in this case for want of a Federal question. The
decision of this motion was postponed to the merits, and we are now of opinion
that it must be denied.

15

The position of the plaintiff is that the act of Congress of May 24, 1828,
granting to the state of Ohio 500,000 acres of land for the construction of
canals, and providing that such canals, 'when completed or used shall be and
forever remain public highways for the use of the government of the United
States,' and the acceptance thereof by the general assembly, constitute a
contract by the state for the perpetual maintenance of such canals as public
highways, at least until they were given up by consent of the United States, and
that the subsequent act of the general assembly of May 18, 1894, providing for
the abandonment of such canals without such consent being given, was
obnoxious to that provision of the Federal Constitution declaring that no state
shall pass a law impairing the obligation of contracts.

16

The main question, then, is whether the acceptance of this act of Congress of
1828 by the general assembly of Ohio should be interpreted as raising a
contract by the state for the perpetual maintenance of these canals as public
highways. We have repeatedly held that, where the plaintiff relies for his
recovery upon the impairment of a contract by subscquent legislation, it is for
this court to determine whether such contract existed, as well as the question
whether the subsequent legislation has impaired it. Piqua Branch of State Bank
v. Knoop, 16 How. 369, 14 L. ed. 977; Proprietors of Bridges v. Hoboken Land
& Improv. Co. 1 Wall. 116, 17 L. ed. 571. This rule also applies to a contract
alleged to be raised by a state statute, although the general principle is
undoubted that the construction put by state courts upon their own statutes will
be followed here. Jefferson Branch Bank v. Skelly, 1 Black, 436, 17 L. ed. 173;
McGahey v. Virginia, 135 U. S. 662, 34 L. ed. 304, 10 Sup. Ct. Rep. 972;
Douglas v. Kentucky, 168 U. S. 488, 42 L. ed. 553, 18 Sup. Ct. Rep. 199;
McCullough v. Virginia, 172 U. S. 102, 43 L. ed. 382, 19 Sup. Ct. Rep. 134.

17

We cannot say that it is so clear that the statute in question is not open to the
construction claimed that we ought to dismiss the writ as frivolous, within the
meaning of the cases which hold that, where the question is not of the validity
but of the existence of an authority, and we are satisfied that there was, and
could have been no decision by the state court against any authority of the
United States, the writ of error will be dismissed. Millingar v. Hartupee, 6

Wall. 258, 18 L. ed. 829; New Orleans v. New Orleans Waterworks Co. 142 U.
S. 79, 87, 35 L. ed. 943, 946, 12 Sup. Ct. Rep. 142; Hamblin v. Western Land
Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353. If the statute were
given the construction claimed by the plaintiff, it would be difficult to avoid
the conclusion that the abandonment of the canal under the act of 1894, and its
lease to the defendant railroad company, were a repudiation of the duty of the
state to maintain it as a public highway; though the question would still remain
whether the plaintiff would be in a position to take advantage of such default.
18

2. In disposing of this case the supreme court of the state of Ohio held (1) that
the defendant railroad corporation had the power to build a railroad between
the termini named, and to acquire by purchase or condemnation a right of way
for its road, and other property necessary for its operation; (2) that the act of
Congress of 1828, donating land to the state for the construction of canals, and
the act of the general assembly of the state accepting the same, did not
constitute a contract for the perpetual maintenance of such canals; (3) that if
such a contract existed, the plaintiffs in these suits were not parties to it; (4) that
the Lancaster Lateral Canal Company did not acquire a fee simple in the lands,
but a title for the uses and purposes of the canal, and the company could not,
when the use ended, sell them to others, but the lands reverted to the owners of
the freehold; (5) that by leasing the lands for the purposes of a railroad the
original easement in the lands was not extinguished, but passed to the
purchaser, who took it subject to the duty of making compensation to the owner
of the freehold for the additional burden imposed on the land, and such
damages as might result to him from the new use.

19

We are concerned only with the second and third of these conclusions, which
turn upon the construction to be given to the act of Congress of 1828. If by the
acceptance of this act by the general assembly of the state of Ohio, the state
became irrevocably bound to keep up the canals for all time, for the use, not
only of the government, but of everyone who incidentally profited by their
preservation, it is impossible to escape the conclusion that their subsequent
abandonment impaired the obligation of such contract. But we think the
supreme court of Ohio was clearly right in its interpretation of the statute. The
principal object of the act was a donation of lands to aid the state in works of
internal improvement, which were then being extensively contemplated in the
newer states of the west. Canals, at that time, embodied the most advanced
theories upon the subject of internal transportation. Congress annexed as a
condition to the grant that the canals built by its aid should, 'when completed or
used, be and forever remain public highways for the use of the government.'
Counsel for the defendant insists that, under the terms of the proviso, the
obligation to maintain these canals as public highways existed only so long as

they were 'used' as such, and this was evidently the opinion of the supreme
court of Ohio. Counsel for plaintiff insists, upon the other hand, with much
reason, that the proviso, that 'the said canals, when completed or used, shall be
and forever remain public highways,' marks the beginning of the time when the
obligation was intended to operate; that is, if the canals were completed, or,
without being completed, were so far completed as to be capable of use, and
were used, the obligation to maintain them in perpetuity attached. Whatever be
the proper interpretation of these words,and they are by no means free from
ambiguity,the dominant idea of the proviso was evidently to compel the state
to maintain the canals as public highways, and to allow the government free use
of them 'for any property of the United States or persons in their service passing
along the same.' Whether the canals should be maintained forever as such, or
should give place to more modern methods of transportation, was a matter of
much less moment to the United States than to the state. The general
government was only interested in securing their use for the public and the free
transportation of its own servants and Property. The object of the act was to
facilitate and encourage public improvements, but not to stand in the way of the
adoption of more perfect methods of transportation which might thereafter be
discovered. Had the question of internal improvements arisen ten or fifteen
years later, when railways began to be constructed, it is quite improbable that
the state would have embarked upon this system of canals, or that Congress
would have aided it in the enterprise. Waiving the question whether the state
could have abandoned the lands upon which these canals were built, as public
highways, we think it entirely clear that Congress could not have intended to tie
the state down to a particular method of using them, when subsequent
experience has pointed out a much more practicable method, which has
supplanted nearly all the canals then in use. There was no undertaking to keep
up the canals for all time, and we think the proper construction of the proviso is
that the government should be entitled to the free use of the canals so long as,
and no longer than, they were maintained as public highways, and that the act
of 1894, leasing these lands to the defendant for an analogous purpose, does no
violence to the contract clause of the Constitution.
20

Were the question one of doubt, we should hesitate long before refusing to
defer to the many opinions of the supreme court of Ohio, through several
changes in its personnel, holding it to be within the power of the state to
abandon the canal for other public purposes, and that such abandonment gave
no right of action to private parties incidentally affected or damnified by it
(Hubbard v. Toledo, 21 Ohio St. 379; Little Miami Elevator Co. v. Cincinnati,
30 Ohio St. 629; Fox v. Cincinnati, 33 Ohio St. 492, affirmed by this court, 104
U. S. 783, 26 L. ed. 928; Hatch v. Cincinnati & I. R. Co. 18 Ohio St. 92;
Malone v. Toledo, 28 Ohio St. 643; State ex rel. Fanger v. Board of Public

Works, 42 Ohio St. 607; Pennsylvania & O. Canal Co. v. Portage County
Comrs. 27 Ohio St. 14; McCombs v. Stewart, 40 Ohio St. 647; State v. Snook,
53 Ohio St. 531, 42 N. E. 544); but the state of Ohio does not stand alone in
affirming this principle. People v. Kerr, 27 M. Y. 188; Lexington & O. R. Co.
v. Applegate, 8 Dana, 289, 33 Am. Dec. 497; West v. Bancroft, 32 Vt. 367;
Haldeman v. Pennsylvania C. R. Co. 50 Pa. 425; Chase v. Sutton Mfg. Co. 4
Cush. 152.
21

In addition to this, however, the plaintiff stands in no position to take advantage

of a default of the state in this particular. He was not a party to the contract
between the state and the Federal government; his rights were entirely
subsidiary to those of the government; and if the latter chose to acquiesce in the
abandonment of the canals, as it seems to have done, he has no right to
complain. He can only sustain this bill upon the theory that his rights are equal
to those of the government, and that he can call upon the state to maintain the
canal for his benefit.

22

The case of Grinnell v. Chicago, R. I. & P. R. Co. 103 U. S. 739, 26 L. ed. 456,
is pertinent in this connection. That was an action in ejectment brought by a
railroad company to recover certain parcels of its land grant, upon which the
defendants had settled and asserted rights under the homestead and preemption
laws of the United States. Their defense was that the company had no title,
because it had lost whatever right it had to the lands by a change in the location
of the road, and because locating the road as it was completed did not bring
these lands within the limits of the land grant act. The court held that, the lands
being within the limits of the first location, the construction of the road on the
new line did not annul or defeat, without further action on the part of the
United States, the title thus vested; that Congress had consented to the change
without any declaration affecting the title already vested in the company by the
first location, and that defendants were bound thereby. In delivering the opinion
of the court Mr. Justice Miller observed: 'Another point equally fatal to the
plaintiffs in error is that the assertion of a right by the United States to the lands
in controversy was wholly a matter between the government and the railroad
company, or its grantors. The legal title remains where it was placed before the
act of 1864. If the government desires to be reinvested with it, it must be done
by some judicial proceeding, or by some act of the government asserting its
right. It does not lie in the mouth of everyone who chooses to settle on these
lands to set up a title which the government itself can only assert by some direct
proceeding. These plaintiffs had no right to stir up a litigation which the parties
interested did not desire to be started. It might be otherwise if the legal title was
in the government. Then the land would be subject to homestead or pre-emption
rights.'

23

A similar case is that of Van Wyck v. Knevals, 106 U. S. 360, 27 L. ed. 201, 1
Sup. Ct. Rep. 336. In that case the railroad company had filed a map of definite
location, and the Land Department had withdrawn the odd-numbered sections
appropriate thereto; but in constructing the road the company departed from the
line indicated. The lands in dispute were within 10 miles of the road as built
and of the line delineated on the map. They were entered by Van Wyck, who
received a patent for them, and Knevals, who had acquired his rights from the
railroad company, filed a bill against Van Wyck seeking to charge him as
trustee for the lands, and the court decreed a conveyance accordingly. The
defendant attacked the right of the company to the grant, alleging that it never
completed the construction of the entire road for which the grant was made;
that after filing its map with the Secretary of the Interior it changed the route of
the road for a part of the distance. The court held, however, that the company
had constructed a portion of the proposed road, and that portion was accepted
as completed in the manner required by the act of Congress; that if the whole of
the proposed road had not been completed any forfeiture consequent thereon
could only be asserted by the United States through judicial proceedings or
through the action of Congress. 'a third party cannot take upon himself to
enforce conditions attached to the grant when the government does not
complain of their breach. The holder of an invalid title does not strengthen his
position by showing how badly the government has been treated with respect to
the property.'

24

The only contract in this case was between the state of Ohio and the United
States. Plaintiff was neither party nor privy to such contract. It was within the
power of the government to prosecute the state for a breach of it, or to condone
such breach, if it saw fit. As it adopted the latter course, and has deemed it
proper to acquiesce in the abandonment of the canals and in the state turning
them over to the railroad company, it does not lie in the mouth of the plaintiff
to complain. This disposes of every question called to our attention in the briefs
of counsel.

25

The plaintiff is amply protected by the decree of the supreme court enjoining
the railroad company from entering upon his lands until payment has been
made, after proper proceedings, for the increased burden caused by the use of
the lands for the railroad. If any taking of the lands consequent upon the
remanding of the cause for the purpose stated should suggest ulterior questions,
they do not arise there, and would not be concluded by an affirmance of the
decree now before us for review.

26

The decree appealed from is therefore affirmed.

Sec. 5. And be it further enacted, That there be, and hereby is, granted to the
State of Ohio five hundred thousand acres of the lands owned by the United
States, within the said state, to be selected as hereinafter directed, for the
purpose of aiding the state of Ohio in the payment of the debt, or the interest
thereon, which has heretofore been, or which may hereafter be, contracted by
said state in the construction of the canals within the same, undertaken under
the authority of the laws of the said state, now in force, or that may hereafter be
enacted, for the extensions of canals now making; which land, when selected,
shall be disposed of by the legislature of Ohio, for that purpose, and no other:
Provided, The said canals, when completed or used, shall be and forever remain
public highways for the use of the government of the United States, free from
any toll or charge whatever, for any property of the United States or persons in
their service passing along the same: And provided further, That the said
canals, already commenced, shall be completed in seven years from the
approval of this act; otherwise the state of Ohio shall stand bound to pay over to
the United States the amount which any lands sold by her, within that time,
may have brought; but the validity of the titles derived from the state by such
sales shall not be affected by that failure.
An Act to Provide for the Abandonment of the Hocking Canal for Canal
Purposes and for Leasing the Same to the Colombus. Hocking Valley, &
Athens Railroad Company.
Sec. 1. Be it enacted by the general assembly of the state of Ohio, that the
Hocking Canal, from its junction with the Ohio canal in the village of Carroll,
Fairfield county, to its southeastern terminus in the village of Nelsonville,
Athens county, be and the same hereby is abandoned for canal purposes, and
the same shall not be used for canal purposes during the pending of the lease
provided in the next section of this act.
Sec. 2. There is hereby granted the right, franchise, and privilege of
constructing, maintaining, and operating over, upon, and along the Hocking
canal and property of the state of Ohio adjacent thereto, a railroad with single or
double tracks, side tracks, switches, bridges, stations, and other structures usual
and incidental to the operation of a railroad, to the Columbus, Hocking Valley,
& Athens Railroad Company, its successors and assigns, for the term of ninetynine years, renewable forever, for and in consideration of the payment by said
company, its successors or assigns, to the treasurer of the state of Ohio, on the
1st day of July, 1894, of the sum of $50,000, and on the 1st day of January,
1900, and of each and every year thereafter, during the term of this lease, of the
sum of $10,000 annual rental.

Sec. 3. Said instalment of $50,000 shall be paid into the state treasury before
the construction of said railroad is begun, and for the remaining instalments of
rental the state of Ohio shall have a first lien upon said railroad, together with
its switches, side tracks, bridges, and other structures erected on said property
of the state of Ohio, which shall be superior to any and all other liens of every
kind upon the same. The said Columbus, Hocking Valley, & Athens Railroad
Company shall further execute unto the state of Ohio, to be approved by the
auditor of the state, secretary of state, and attorney general, or any two of them,
a good and sufficient bond in the sum of $100,000, conditioned that said
company will faithfully build said railroad in compliance with the condition
and terms of this act, and upon failure to build said road within the time herein
specified, they shall be liable to the state of Ohio in the full sum of $100,000 as
stipulated damages. Said bond
shall be executed and filed with the secretary of state within ten days after the
passage of this act.
Sec. 4. In consideration of the payments aforesaid, said railroad company, its
successors and assigns, shall have the exclusive right during the term aforesaid
to use and occupy the property aforesaid, or so much thereof as may be
necessary, for the purpose of constructing, maintaining, and operating a railroad
thereon. Said company shall not disturb any vested rights or privileges of
abutting property holders along said canal, and shall hold the state harmless
from all loss or damage resulting to such property holders by reason of the
construction and operation of said railroad: Provided, That when said railroad,
its successors and assigns, cease to use said canal for railroad purposes, said
canal property shall revert to the state for canal purposes.
Sec. 5. This act shall not be construed to prevent the levying and collecting of
taxes on said railroad in the same manner as they are levied and collected on
other railroad property in this state.
Sec. 6. The work of constructing said railroad shall be commenced within six
months after the passage of this act, and the same shall be completed within
two years thereafter.
Sec. 7. This act shall take effect and be in force from and after its passage.