On Petition for a Eehearing.
Elliott, J.We have again examined the questions pre- • sented in this case, and w.e can find no reason for receding from our former opinion. It still seems clear .to us, that the lease under which the appellants claim did not convey any other right than that to use the surplus water not required for the purposes ‘of navigation. The changed circumstances of which counsel so often speak did not enlarge the subject *452of the demise. The grantees of the State are not in a different position from that of their grantor, so far as respects the subject of the lease. That was not expanded by anything done by them or any one else. As said by the Supreme Court of Pennsylvania, in Commonwealth v. Pennsylvania R. R. Co., 51 Pa. St. 351, “In determining the meaning of the contract, the subject of the grant is very material to be considered. It was surplus water.”
When the canal was abandoned, there was no subject upon which the lease could operate, and it ceased to be effective. This result, as the decisions referred to in the original opinion clearly show, the lessor was not bound to prevent. There was no obligation, express or implied, that water should always be supplied, nor that the canal should be so maintained as that the lease should remain operative. On the contrary, the clear implication is, that when the subject of the lease ceased to exist, the rights of the parties under it terminated fully and completely. If this be true, and we can see no reason for doubt, then it must be true that the State or its grantees had a right to do with the canal property what any owner might do. This is substantially the doctrine of Fox v. Cincinnati, 104 U. S. 783, where it, was said, in speaking of the canal: “ When it was no longer needed, it might be abandoned; and, if abandoned, the water might be withdrawn altogether.”
The appellants did not acquire any corporeal property; all that they acquired was an incorporeal right. Their right was to use the water, for they did not acquire any right to the corpus of the water, much less to any of the land. Angelí Watercourses, section 90. The incorporeal right which they acquired was to the use of the surplus water, and when the abandonment of the canal for the purposes of navigation made it impossible that there should be surplus water, the incorporeal property which formed the subject of the lease ceased to exist. If the subject of the lease—that is, the incorporeal right to the use of the surplus water—ceased to exist *453when the canal was abandoned, then the appellants had no longer any right in the canal or its appurtenances, because the only property on which their lease could operate was gone.
Filed Oct. 18, 1887.Petition overruled.