Coshocton County Appeals.

The plaintiff alleges that he is the owner of the real estate described in the petition; that the lands are farming lands of great value and adapted to the growing of corn, wheat, grass and other farm crops.

The defendant, Gilbert J. McKee, is the owner and in possession of the land described in said petition, and which land adjoins the lands of said plaintiff on the east and border on the Walhonding river hereinafter mentioned.

Plaintiff further avers that his said lands are bounded on the east by the land of said Gilbert J. McKee and on the south by the Walhonding river and Walhonding canal, which canal was abandoned by the state of Ohio about the year 1896.

The defendants, Henry Clark, J. C. Crile and J. H. Elder, are the duly qualified and acting county commissioners of Coshocton county, Ohio.

The said Walhonding river has an uninterrupted flow along its natural watercourse except for a dam in said river heretofore constructed and maintained by the state of Ohio and the department of public works of said state of Ohio. Said dam is known as the six mile dam in said Walhonding river. The abutments erected at each end of said dam as a protection and support therefor are several feet higher than the top of said dam, to-wit, about twelve feet, and the plaintiff's said land lies north and west of said dam; and said river flows in an easterly direction along said plaintiff's said land. The defendants, John I. Miller, as superintendent of the department of public works of the state of Ohio, and Ross Hamilton as superintendent of the construction of a certain levy, as officers of the department of public works of the state of Ohio, and Henry Clark, J. C. Crile and J. H. Elder, as commissioners of the county of Coshocton, Ohio, threaten and are about to erect and will build and construct a levy from the north abutment of said dam in a northwesterly direction across the lands of the said Gilbert J. McKee to a point on the southeast corner of the lands of said plaintiff, and will so construct said levee unless restrained by this court. Said levee so to be constructed by said defendants will extend to a height of four and three-tenths feet above the plaintiff's

Crawford v. Miller.

said lands at its lowest point; in case of a flood or sudden rise of the waters of said river it will cause said river or a part thereof to overflow plaintiff's said land before the same will flow over the levee erected by said defendants, and said levee will obstruct the natural flood channel of said river and cause said river to flow in a new and different flood channel on and over the lands of the plaintiff; that said defendants in constructing said levee are doing so without due process of law, without any license, sufferance, consent or agreement, contract or grant with or from the plaintiff, who is the owner in fee simple of said premises; and said defendants are so threatening to overflow and prepare said new flood channel without securing the right so to do by any process of law, and without making or paying to the owner thereof any compensation therefor by placing on it in the event of a flood in said river the burden of furnishing a channel for said flood water to pass through and over the land of said plaintiff, without said construction of said levee, which will improve the natural regular flow of said flood water, the land of the plaintiff would not be subject to said burden. A large part of said premises that are now well suited for the growing of said crops and which is and for a long time has been used therefor at great profit to the plaintiff, will by the erection of said levee be overflowed by the waters of said river and rendered unfit for growing corn, wheat, grass and other crops, and render said premises worthless for farm purposes; that the waters flow on in their natural course over the depression where defendants threaten to construct said levee, it spreads out over a large tract of one-half mile in width and again returns to the channel of said river without overflowing the lands of plaintiff; that said levee is permanent in its character and will obstruct the flow of the flood waters of said river in its natural flood channel and cause said waters to flow on and over said premises of plaintiff, to the irreparable damage of plaintiff; and plaintiff has no adequate remedy at law for the wrongs herein complained of.

The plaintiff prays that a temporary restraining order be allowed, etc., and upon the final hearing a perpetual injunction

Coshocton County Appeals.

be granted, etc. A temporary restraining order was granted by the probate judge of Coshocton as prayed for. Motion by defendants to the common pleas court to dissolve and set aside said temporary restraining order was granted and the plaintiff appeals to this court. Thereupon the defendants, the county commissioners of said Coshocton county, filed their answer in which they say in substance that they admit that plaintiff is the owner of the lands described in the petition; that a part of the Walhonding canal was abandoned as alleged in the petition; that they, Henry Clark, J. C. Crile and J. H. Elder, are the duly elected, qualified and acting commissioners of Coshocton county, Ohio. They further admit that a dam has been constructed and maintained by the state of Ohio as alleged in said petition, and they deny each and every other allegation.

Said commissioners further answering say that they have entered upon their journal an entry to the effect that $1,000 be paid to the state of Ohio, and the state of Ohio is to take care of a right of way for the levee proposed to be constructed by the state of Ohio; that said $1,000 be paid when the levee is completed; that said participation in the construction of said levee is considered by the commissioners of public importance, and that if said levee is not constructed that portion of the highway leading from Warsaw to Coshocton and beginning on the Wilson lands and running south toward Coshocton will be greatly damaged. They ask that said action as to them may be dismissed and that they be permitted to carry out their part of the construction of said levee.

The defendants, J. I. Miller and Ross Hamilton, on October 13, 1913, filed their joint answer alleging in substance that they admit the ownership of the lands by the plaintiff described in the petition. They say that a part of the Walhonding canal was abandoned by act of the legislature of the state of Ohio about the year 1896, and the remaining part of said canal is still maintained as a part of the public works of the state of Ohio. They admit that the said defendants, Clark, Crile and J. H. Elder, are the commissioners of Coshocton county; that the state of Ohio has constructed a dam in the Walhonding river

Crawford v. Miller.

in the vicinity of plaintiff's lands; that said dam is a part of the public works of the state of Ohio and is maintained to secure a supply of water for the Walhonding canal, which is owned and maintained by the state of Ohio; said dam has been constructed, used and maintained by the state of Ohio for such purposes for more than twenty-one years last past. They admit the abutments of said dam are several feet higher than the top of said dam. They deny each and every allegation in said petition not herein admitted to be true.

The defendant, John I. Miller, is the duly appointed, acting and qualified superintendent of the public works of Ohio, and as such superintendent has the charge and control of the maintenance and management of the dam mentioned in the petition; and as such superintendent as the agent of the state of Ohio and to protect and maintain said public works of Ohio, he is proposing to construct, to repair a certain levy on the north bank of the Walhonding river extending from the north abutment of said dam in a northwest direction for a distance of about 1695 feet. In such construction said John I. Miller is not acting in his individual capacity but as an official of the state of Ohio and under direction and authority of the general assembly and of the constitution of the state of Ohio. Said defendant, Ross Hamilton, is in the employ of the state of Ohio as superintendent of the construction of said levee. Defendants say for more than twenty-one years last past the state of Ohio has constructed, used and maintained a levee as a part of the public works along the north shore of said Walhonding river from the north abutment of said dam in a northwesterly direction; that a part of this levee was destroyed and washed away by the extraordinary flood of March, 1913; that by reason of this damage of said flood to said levee a large amount of the property of the state of Ohio, a large part of the public roads of Coshocton county, Ohio, and a large amount of farming lands situated north and northeasterly from said levee have been placed in jeopardy; that if this levee is not repaired before spring the property will be placed in danger and particularly by a sudden rise of the Walhonding river, which usually occurs

Coshocton County Appeals.

in the spring months of each year, and said Walhonding river will ultimately cut a new channel through said farming land.

Defendants say that said proposed new levee proposed to be constructed is to be so placed that the new channel of said river at this point will be greatly widened and the width of said river will be at least doubled. That the top of the proposed levee and the top of the former levee are of about the same level. The defendants specifically deny that said proposed levy will cut off the flood channel of said river and cause said river to seek a new channel over plaintiff's lands.

Plaintiff has an adequate remedy at law. They say that the floods of March, 1913, caused a large amount of damage of the public works of the state of Ohio throughout the state; that the department of public works was taxed to its utmost capacity to make such repairs as were immediately necessary; that it was necessary to secure a specific appropriation of money from the legislature to repair the levy herein mentioned; that the legislature appropriated the sum of $10,000 to repair said levee; that in order to estimate the amount of money needed measurements and surveys had to be made and were made; that after said appropriation was allowed it was necessary to make plans and specifications to reconstruct said levee and a complete survey of the ground was made; that after said plans and specifications were proposed and approved advertisements for bids were inserted in newspapers as required by law and bids received; that the bids so received were irregular and exceeded the appropriation and were rejected; that thereupon new bids were asked for and said bids also exceeded the appropriation and were therefore rejected.

Said measurements, sounding and surveys were made upon the land in question and were known to plaintiff and he made no objection thereto. Bids were advertised for in newspapers of general circulation in Coshocton county, Ohio, for said construction and it was generally known that said proposed levee was to be constructed, and plaintiff made no objection; that plaintiff has been guilty of laches and should not have the relief sought and prayed for in his petition.