Little Miami Elevator Co. v. City of Cincinnati

There are two propositions involved in this case, either of which, we think, is sufficient to dispose of the plaintiff’s claim, ás made in the petition.

It appears that on October 29, 1863, the hoard of public works approved and accepted the plans of improvement submitted to it, and expressly accepted them without condition so far as they related to that part of the improvement below Third street, and directed the commencement of the work accordingly. Yet, on June 26, 1869, without the consent of the city, the board of public works not only conveyed to the plaintiff the water power it claims, releasing it from all rent, but also assumed to convey the privilege of transferring and using said power on the lot of the plaintiff, on the southeast corner of Front street and Fggleston avenue, and to secure the use at that point, which was confirmed by the order of September 18, 1869. This, we think, that board had no power to do. There is nothing in the act of the legislature granting to the city the canal, conferring such a power, or providing in any way for its exercise in favor of lessees. And inasmuch as thei’e is no averment that the city did or has consented to it, she can not be hound by this incumbrance of a property granted to her by the state, attempted to be put on it subsequently.

Again, an examination of the act granting the canal to the city, provides that the city “ shall not obstruct-the flow of water through said canal, nor destroy nor injure the present supply of water for milling purposes.” This is the full extent of her obligation in this respect. Now, the plaintiff is not a milling corporation, nor does it claim the use of its water power for “ milling purposes,” but to operate an elevator for the purposes named in the petition. The original lease of all these water powers clearly appears to be for milling purposes only; but still we have no doubt they might have been used for other purposes. We think, however, that by the act of the legislature granting the canal to the city, the state abandoned the water power for all other purposes than “ milling purposes,” or it was in-*366eluded in the grant, to the city. This view excludes the plaintiff’s claim from any consideration whatever by the city; and as no claim could be sustained for damages, by reason of such abandonment, against the state, no liability was cast upon the city by the act ceding it to her. And it is not averred that the city is a party to the conveyance to the plaintiff of the water power which it claims. Indeed, the plaintiff took no title to any water power for the purpose of an elevator at all, for it had been abandoned for such a purpose by the state before the conveyance of June 26, 1869, or was ceded to the city. The use of the water, to which it is put by plaintiff, however proper before the grant to the city, was revocable at the pleasure of the state, and being revoked by the grant, could not be revived after it; or, if it was granted to the city, the board of public works had no title to convey.

The case of Hubbard v. City of Toledo, 21 Ohio St. 379, seems to us decisive of this case; and the demurrer will be sustained, and if the parties desire it, the cause will be remanded to Special Term for further proceedings.