Opinion of the court, by
Judge Lane :The proof in this case shows, that the plaintiffs are the proprietors of a tract of land on Mad river, near the town of Dayton, upon which a valuable water power exists, and is improved, and that a greater power may be created by diverting a greater quantity of water from the river. That it is necessary to take from the river three thousand cubic feet of water per minute to supply the Dayton canal, by which the value of the plaintiffs’ milling privileges is materially impaired. That the canal commissioners have erected a dam on the land of Findlay, which lies above, and have constructed a feeder which transmits the water from the river, first through Findlay’s land, next through a part of plaintiffs’ land, thence upon the land of another person, from which it again enters the plaintiffs’ land, and joins the canal. That, in the construction of this feeder, á new water power is created, which may be used either on the plaintiffs’, land, or on the intermediate land, and that the defendant, who is one of the canal commissioners, is about to sell the right of using two thousand cubic feet of water per minute, to be taken from the feeder at some point between the two portions of the plaintiffs’ land, and returned to the canal below. The bill prays general relief; but the pleadings direct the attention of the court to two points, which comprise the remedy he asks.
It is not an objection raised by the defendant that he is but *one of five commissioners, and that he only carries their acts into execution; nor is a decree resisted on the ground that the whole board of canal commissioners are not principals acting in their own rights, but agents of the state only. The case is discussed by the respective counsel on the merits, and the court will view it in no other aspect.
We are first called upon to restrain the defendant from the unnecessary consumption of water. If it be proper for us to institute this inquiry, the evidence shows that three thousand feet per *260minuto is necessary, for the ordinary supply of the canal, at this point, and that this is all intended to be taken. And, although some irregularities exist in the quantity introduced, that they arise, partly from the accidental influx from other sources, or, perhaps, partly from the inexperience or want of attention in the superintendent, yet they chiefly spring from the variable quantity flowing through the race of the saw-mill, a volume under the control of the defendant. The evidence, therefore, does not support the plaintiffs’ claim. But if it were otherwise, I am not sure it. would be within the proper duty of the court to control the commissioners in the manner of supplying the canal with water. The power to construct the canal is a high attribute of sovereignty; and in tracing the line — in selecting materials for its construction —in the introduction and management of the water — and in the-thousand subordinate operations, attending the execution of so vast a work, there is a necessity for the exercise of large discretionary powers. The board of canal commissioners are selected with special reference to their possessing capacities adapted to this-work, and although a case strong enough to justify our interposition may arise from corruption, from malicious intention, or caprice, yet, in the absence of these, the court would pause before it will assume to control the discretionary powers the law intends to confide to them. ' The security, for the faithful exercise of this discretion, is found, not in the superintendence of courts of justice, but in the individual reputations of the commissioners — in the tenure of their office — in their acting openly on the rights of others, in the face of a people vigilant to watch and acute to ^discern, and in their being exposed to the overwhelming force of public opinion.
The more important question in this suit is, whether the court will restrain the sale ’of the two thousand feet of water to be takon from the feeder, between the point where it emerges from the plaintiffs’ land and the point where it again enters upon it. The determination of this depends upon the nature of the plaintiffs’ interest in the water flowing down the feeder.
The interest of a riparian proprietor, where his rights are not limited by usage or convention, consists in an absolute right to-any use he can make of the water, while passing over his land. He is bound to transmit it by its natural channel to the next occupant, and he is permitted to exact the same “ servitude ” from *261the proprietor above him. The right thus acquired, is not a right to the water itself, but an interest in the manner of its flow; for, the water in a running stream, flowing in its natural channel, is not a subject of property. 2 Black. Com. 18. The right, therefore, to all advantage of the river in its channel, to all benefit of the present mill race, and the right to create any other mill seat, which would permit the water to be returned to its natural channel before it left their land, were all vested and absolute in the heirs of Cooper, at the time of the creation of the canal, and they could not be deprived of them, except in due course of law.
It is upon these rights the state has assumed to act, by virtue of its transcendent sovereignty (dominum eminens), a power to appropriate private property for public uses, for the purpose of promoting the general welfare. This power is inherent in every government; ■but it should be exercised in cases, and for objects strictly public ; and, in our country, the constitution of the United States, and of the State of Ohio, insure that principle of natural justice, which requires compensation to be made to the individual deprived of his property.
There is no doubt that a canal is such an object that private property may be subjected to its construction. By the act of 1825, St. 23, 56, 5, 8, the legislature have ^authorized the commissioners to use the water of streams for this purpose, and the means of compensation is provided for those who suffer by the exercise of this power. The commissioners have abducted a portion of the waters of Mad river, by this authority, and the plaintiffs are entitled to a compensation for every injury resulting from this act. For every infringement of their rights-^-for every injurious interference with the control of their own property — for all detriment to a form of their mill privilege, they have received, and may receive satisfaction. And when satisfaction is thus made, and offered, their rights, so far as encroached upon, are extinct.
It remains to consider whether any new rights ensue from the transit of the canal, or its feeder, over the plaintiffs’ lands, which entitle them to the relief they ask. In considering this question, it becomes important to ascertain the nature of the benefits, which •ensue from the construction of the canal. They may be classed under the names of general or accidental. The general advantages are the facilities of traveling, accessibility to market, re*262duction of the price of transportation, and the effect of these, in-enhancing the value of land. The accidental advantages consist of thej>eculiar benefit conferred upon specific tracts of land, by the-.opportunities of basins, warehouses, and other commercial advantages ; of all benefits of the water, consistent with its use for the canal, and for the means of navigation, etc., from waste gates, To attain the general advantages, was the precise end for which, the canal was constructed. They were designed for all — they belong to all, and may be claimed by all. But the accidental benefits, although often of the highest moment to the individual, are-of a nature so indefinite and uncertain, that no vested rights exist to exact them from the agents of the state.' The owner of land can not compel the commissioners to select black acre rather than white acre for the line of the canal; and although there ought to be an indemnity for injuries, there is no justice in a claim upon the. state to make compensation for profits which might have accrued under a different location. This view of the case seems decisive of the plaintiffs’ rights. They might exact from Findlay, the transmission *of the water to them through its ordinary channel; but this right, so far as it extends to the three thousand feet of water, is extinguished by the transcendent sovereignty of the state. The commissioners possessed the undoubted power to take it from the river, and to conduct it through the land of the plaintiffs, to the point where it is proposed to sell the two thousand feet; up to this point there is no cause of complaint; and in consequence of thus using the water, a right to full indemnity ensues to the plaintiffs, and they have no further right. The water of the river is not theirs; certainly not this water, which never touched their land, except through the feeder. We can recognize no greater claim in the plaintiffs than that which attaches to every proprietor of land through which the canal might be brought — no such vested right, in accidental benefits or expected profits, as give them authority to interfere with the discretion reposed in the public functionaries. No case of corrupt intention or of malicious design is shown ; and we can not regard, as an abuse-of power, an attempt to diminish the pecuniary burdens of the. people, by means, which, in our opinion, are no violation of any vested right.
Bill dismissed.