The opinion
Dissenting opinion.
Biddle, J.
I am constrained to dissent from the opinion of a majority of the court.
1. I deny that the State of Indiana took a fee simple in the bed, embankments and lands attached, for "the purposes of the Wabash and Erie Canal, or in any portion of them.
2. I hold, that the State took but an easement in said lands, and only for the purposes of said canal; and that, when the use of the canal was abandoned as a public work, the land reverted to the original owners, from whom it was taken.
*218 3. I hold, that, if the State did take a fee in said lands, it was only for the purposes and uses of the canal as a public work, and that the State never had any power, nor have her vendees any power, to convert it, or any part of it, to a private use.
4. I hold, that the State has no power, either directly or indirectly, to take the laud of one citizen, whether it be an easement or a fee, and transfer it, either directly or indirectly, to auother citizen, even on making full compensation therefor.
5. I hold, that the State has no power to take property against the will of the owner, whether an easement or a fee, and, if so taken, has no power to hold, it, except for a public use; and that the vendees of the State can stand in no better light than the State herself.
6. I hold, that neither the State nor her vendees ever had any power to divert the water from the canal for the purpose of supplying a city with water-works; nor to use the water for the purpose of producing ice for sale as merchandise. Because neither water-works nor ice ponds have any connection with the uses and purposes of a canal.
7. I hold, that, to adhere to the doctrine of the Burk-hart case, will produce incalculably greater injury than to overrule it.
In support of the first and second propositions, which may be treated together, I refer to my dissenting opinion in the case of Nelson v. Fleming, 56 Ind. 310 , and the authorities there cited, to which I wish to add something, as the cases are not the same. At the time that case was decided, the use of the canal as a public work was not known to have been abandoned; but since that time its abandonment has become an accomplished public fact, which the courts must judicially notice; nor was the question of fee or easement in the property necessary to the decision of that case; for, as long as the vendees of the *219 State kept up the canal for public use as a canal, their title would be good, whether they held a fee or merely an easement in the lands. Besides, there was no question in that case of diverting the water from the canal for the purpose of a water-works, nor of cutting and selling ice from its waters, as merchandise.
In the matter of Albany Street, in the city of New York, 11 Wend. 149 , it was held that the Legislature could not authorize the taking of more property or a greater estate therein than necessary, for the public use. See, also, In the matter of John and Cherry Streets, 19 Wend. 659 .
The language of the statute, under which the Wabash and Erie canal was constructed, is as follows:
“ That it shall and may be lawful for said canal commissioners, or each of them, or any of their agents, superintendents, engineers, or workmen acting under them, to enter upon and take possession of, and use all and singular, any lands, waters, streams and timber, stone or materials of any kind, necessary for the prosecution of the improvements contemplated by this act; and to make all such canals, feeders, dikes, locks, dams, and other works, as they may think proper in said prosecution, doing however no unnecessary damage.”
This specific language .would be wholly unnecessary, if the State intended to take a fee in the lands; and the concluding words, “ doing however no unnecessary damage,” if a fee was contemplated, would be not only useless but senseless. And, in assessing the damages to the owner by taking his land, the jury were “ faithfully, justly and impartially to estimate the loss or damage, if any, over and above the benefit accruing from the canal to such owner.” These words are wholly inconsistent with the intention of taking a fee in the lands; for, if a fee was intended to be taken, they would simply assess the value of the land, without deducting any benefit to the owner *220 that might arise from the construction of the canal. And, the State not needing any greater estate in the lands so taken for the purposes of constructing a canal than an easement, it can not be presumed that she intended to take any greater estate, unless the words of the act are so apt and controlling in defining a fee simple, that they would admit of no other construction. “ The improvements contemplated by this act ” did not require that the State should take a fee in the lands upon which the improvements were to he constructed. It appears plain, therefore, that the State neither took, nor intended to take, a fee in the lands. To call it a fee, when in fact and in law it is only an easement, has no force whatever.
As to the third proposition — that neither the State nor her vendees can convert the canal to any other use than for the purposes of -a canal — we have legislation upon the subject. The act of March 9th, 1859, providing for the incorporation of canal companies, 1 R. S. 1876, p. 249, provides as follows:
“ Sec. 14. That any company or companies organized under this act, and obtaining possession of any canal or part thereof, heretofore built within this State, under a grant, lease, or gift of the same, from the parties who built the same, or were the owners, legal or equitable, of the same at the time of said grant, lease, or gift, shall not be allowed or permitted to change or divert the same to any other use or purpose from that for which said canal was originally built and constructed, but the same shall for all time to come, except when undergoing repairs, be kept navigable, a public highway, free to all persons whatever to pass and repass with their boats or other water crafts, and with their produce, goods and chattels, wares and merchandise, such persons conforming to such rules and regulations as the company may prescribe, and to the payment of such tolls as may be established and required for the *221 navigation of the same; and any such company or companies changing or diverting said canal to any other purpose than navigating the same with boats and other water craft, in the transportation of persons or property along said canal, shall forfeit all rights, privileges and immunities granted under this act; and the change and diversion of said canal to any other purpose than as provided in this section, to wit, a navigable canal for boats and other water craft, in the transportation of persons and property along the same, shall work as a forfeiture of any grant, lease, or gift made under the provisions of this act.
“ Sec. 15. All canal companies now in existence in this State, or which shall hereafter be organized, may have and possess all the benefits of this act, by complying with the conditions herein contained.”
Ye need not enquire whether the Wabash and Erie Canal, or the company which now claims it, comes under the provisions of this act; it declared the policy of the State in reference to all her canals, before the present owners purchased the Wabash and Erie Canal, and has been in force ever since. They are bound by the act, though they may not be a company organized under it. We can not suppose that the State intended to have one law to govern one canal, and another law to govern another canal; indeed, such an act would be unconstitutional. The State and the public have no interest in canals except as canals, and it is not for the courts, by their decisions, to take any one of them out of the operation of the general law. By the legislation of 1846 and 1847, known as the “ Butler Bill,” by which the canal was transferred to the appellees, they were bound to complete it to Evansville, and to maintain it as a canal, throughout its entire length; subject, however, to the control of the State in regulating its navigation and tolls; the appellees are bound, therefore, *222 by this act, as much as if they were named therein. The acts must be construed in pari materia, and the intention of the Legislature must govern ; and surely that intention never was, to allow its system of public improvements to end in supplying private companies with water for waterworks, and producing ice for individuals as merchandise.
And we have judicial decisions directly in point upon this question, namely, that neither a canal, its water, nor any thing else necessary to its use, can be diverted from its legitimate purpose. In the case of Cooper v. Williams, 4 Ohio, 253, Williams, as canal commissioner, undertook to divert a portion of the water from Mad river through the canal, without returning it again for use in the river or canal, and it was held that he could not so divert the water to the injury of a riparian owner. This case was sought to be reviewed (Cooper v. Williams, 5 Ohio, 392,) and the court used the following language:
“ Although the law authorizes them” (the canal commissioners) “ in some cases, to dispose of the water, for hydraulic purposes, with a view to raise a revenue, to aid in defraying the expenses of this work, still this relates only to the water which is necessary for the navigation of the canal, and which can be used for these other purposes without inter-, fering with that navigation. It does not authorize them to receive a surplus quantity of water into the canal, that they may dispose of it; especially when an injury should be thereby done to an individual. * * * A riparian proprietor possesses the same right to the use of water flowing through his land, that he does to the land itself. The water itself is not his. It is the use. And in this use he cannot be disturbed by an adjoining proprietor, either above or below him. * * * But as the public welfare does not require that any more should be withdrawn from the river than is necessary for the navigation of the canal, no more can be taken; and should an attempt *223 be made to take more, this court might prevent it by injunction.”
In the case of Buckingham v. Smith, 10 Ohio, 288. it was held that the canal commissioners are authorized by law to take water enough from a stream for canal navigation, but not for the purpose of creating hydraulic power to sell or lease on behalf of the State. In this case the court stated its conclusions as follows:
“ The State, notwithstanding the sovereignty of her character, can take only sufficient water, from private streams, for the purposes of the canal. So far the law authorizes the commissioners to invade private right, as to take what may be necessary for canal navigation, and to this extent authority is conferred by the constitution, provided a compensation be paid in money to the owner. * * * "We know of no instances in which it has, or can be taken, even by State authority, for the mere purpose of raising a revenue by resale, or otherwise; and the exercise of such a power would be utterly destructive of individual right, and break down all the distinctions between meum et tuum, and annihilate them forever, at the pleasure of the State.”
The same principle is recognized, illustrated and elaborately stated by the Chancellor, in the case of Gardner v. The Trustees of Newburgh, 2 Johns. Ch. 162 , decided in 1816. See also Varick v. Smith, 5 Paige, 137 .
If the State can not grant authority to draw water from a canal for hydraulic purposes, without returning it to the canal for the purposes of navigation, it certainly can not sell water to a water-works company, nor fill ponds for ice merchants; for, in such instances, the water can not be returned to the canal for any purpose.
The fourth proposition is supported by a long line of authorities. The taking and use must be for the public; and, if the thing taken be transferred to a private use, it *224 will revert. Beekman v. The Saratoga, etc., R. R. Co., 3 Paige, 45 ; Hepburn’s Case, 3 Bland, 95 ; Pittsburgh v. Scott, 1 Pa. St. 309; Bankhead v. Brown, 25 Iowa, 540 ; Nesbitt v. Trumbo, 39 Ill. 110 ; Osborn v. Hart, 24 Wis. 89 ; Harding v. Goodlett, 3 Yerg. 40 ; Norman v. Heist, 5 Watts & S. 171 ; Embury v. Conner, 3 N. Y. 511 ; The L. C. § C. R. R. Co. v. Chappell, 1 Rice, 383 ; Rubottom v. McClure, 4 Blackf. 505 .
Having established this principle beyond controversy, as I think, let us apply it to the case before us. If the Legislature were to directly pass an act authorizing lands to be taken from the owner against his consent, providing means to pay him the full value of the fee, declaring that it shall be used to construct a canal for the purpose of furnishing water to a private corporation to supply a city, or to make ice ponds for a private person to produce ice to sell as merchandise, no one would contend for a moment that the act was constitutional; yet to this we have indirectly come by the decision of the Burkhart case, and the present decision based upon it.
The same argument and the same authorities support the sixth proposition.
These principles are not of to-day merely; they are founded in nature, and recognized by every civilized nation where the rights of property are respected. The old publicists, Grotius, Puffendorff, Montesquieu, Yattel, have adopted them as the basis of the law of property, and modern commentators explain and illustrate their application.
Blackstone, in speaking of the right of property, says :
“ The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. * * * * And by a variety of ancient statutes *225 it is enacted, that no man’s lands or goods shall be seized into the king’s hands, against the great charter, and the law of the land. * * *
“ So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides the public good is in nothing more essentially interested, than in the protection of every’ individual’s private rights, as modelled by the municipal law. In this and similar cases, the Legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel ? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the Legislature does is to oblige the owner to alienate his possessions for a reasonable 'price; and even this is an exertion of power, which the Legislature indulges with caution, and which nothing but the Legislature can perform.” 1 Cooley’s' Bl. Com. 189.
In a note to the above, by the American editor, we find the following:
“ It is well settled that government has no right to take *226 the property of one citizen and transfer it to another, even on the making of full compensation.”
Chancellor Kent, upon the same subject, uses the following language:
“The right of eminent domain, or inherent sovereign power, gives to the Legislature the control of private property for public uses, and for public uses only. * * * So lands adjoining the New Yoi’k canals were made liable to be assumed for the public use, áo far as was necessary for the great object of the canals. * * *
“It undoubtedly must rest, as a general rule, in the wisdom of the Legislature, to determine when public uses require the assumption of private property; but if they should take it for a purpose not of a public nature, as if the Legislature should take the property of A. and give it to B., or if they should vacate a grant of property, or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would be clearly unconstitutional and void.” 2 Kent Com. 839, 340.
In the case before us, the appellants have vacated a grant of property and a franchise, which, according to the language of Kent, is a gross abuse of their discretion, and a fraudulent attack upon private property; and that such a law would be clearly unconstitutional.
As to the seventh proposition : I understand the majority of the court to appi’ove of this decision mainly because the principle laid down in the Burkhart case has become a rule of property, and that to overrule it would disturb rights acquired upon the faith of that decision. The learned judge who wrote this opinion thinks it is supported by the cases of Wyoming Coal, etc., Co. v. Price, 81 Pa. St. 156, and Malone v. The City of Toledo, 34 Ohio 541 ; but I do not see wherein these cases aid the opinion *227 before us. The question involved in the Pennsylvania case was whether the State acquired a fee in the lands taken for a canal, when it was so provided and paid .for; and whether the vendee of the State owned the coal under the bed of the canal. There was no question of abandonment in the case, nor of furnishing water-works, nor of selling ice. If the State'took a fee in the lands, it d.oes not follow that she can sell water from the canal to supply water-works or fill ice ponds, because these are not the purposes for which canals are constructed. The general public that builds and owns the canal has no interest in private water-works, nor in the ice traffic; and the State has no power to use the canal for any such purposes. It is a power not contemplated by the constitution or the acts under which the canal was constructed ; and when such power is used, or attempted to be used, the courts will interfere and redress or prevent the wrong.
In the Ohio case, the simple question was, whether the State acquired a fee in certain lands taken for canal purposes or not. There was no question of abandonment, water, or ice involved; and the court says, that “ Where the property is confessedly unnecessary for the purpose for which it was taken, or is for a mere private use, no doubt the courts may interfere.”
In the case we are considering, certainly the cutting of the ice was for a private use, which in no way subserved the purposes of the canal; and in this it seems to me, the case is rather against the decision in this case than in its favor.
I feel as firmly bound by the doctrine of stare decisis as any of my honored brothers. I admit that when a question has once been decided, and maintained through a long course of time, whereby it has become a rule of property, it should not be overruled, though wrong, unless overruling it would be a lesser evil than that of main *228 taining it. But is the Burkhart case of this character ? It does not seem to me that it is. It was never accepted as settled law, but has been in dispute during the eight years since it was decided and the, principle in the Huff case, which it overruled — namely, that the owner had a reversionary interest in the lands taken without his consent, for public improvements — has been recognized since that decision by this court in three cases : The Indianapolis, etc., R. R. Co. v. Ross, 47 Ind. 25 ; Cox v. The Louisville, etc., R. R. Co., 48 Ind. 178 ; and Sharpe v. The St. Louis and S. E. R. W. Co., 49 Ind. 296 . It is clear that the Burkhart case can not be sustained on principle; must grounds of policy then uphold it?
I confess that I can foresee no serious evil that will be likely to occur upon overruling the Burkhart case. Those who have acquired rights under that decision, which have been adjudicated, could not be disturbed in their property, because the question as to that is settled forever; and it is not likely that many investments of property have been made upon the faith of that case. While to overrule the case and restore the law to a basis of principle, where it stood before that decision was made, would give security to the rights acquired during forty years before it was rendered.
Row let us see what evils must necessarily follow, if the rule of property in the Burkhart case is maintained. It decides that the State took a fee simple in the bed and embankments of the Central Canal, running, perhaps, some hundred miles, more or less, the greater portion of which has reverted to the owners of the land, from whom it was taken, has been filled up and fields extended over it, and perhaps buildings erected upon it, all of which have been enjoyed more than thirty years without hindrance from any one, or any claim on the part of the State. If the principles of the Burkhart ease are to be maintained as *229 the law of property in the grounds of this canal, I do not see why any of these proprietors, numbering hundreds doubtless, may not be ejected from their premises, whenever the State or her vendees see proper to assert their claims. And. if the Wabash and Erie Canal, some three hundred miles in length, with its thousand claimants to its bed and embankments, who have enjoyed their property in peace for nearly half a century, supposing that it was subject only to the easement of the canal, is to be put under the rule of property laid down in the Burkhart ease, then the evil will be great indeed. I can not consent to any such a rule.
Niblack, C. J.
If the question as to the kind of title which the State acquired by the appropriation of the lands necessary for the location and construction of the Wabash and Erie Canal were an entirely open one, I would hesitate to consent that the title thus acquired amounted to any thing more than an easement; but I concur in holding that the ease of The Water- Works Co. of Indianapolis v. Burkhart, supra, maintaining a different doctrine, has become a rule of property in this State, and ought not now to be overruled.
Scott, J., concurs in what is said by Niblack, C. J. as above.
Petition for a rehearing overruled.