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.'
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.'