Page:Federal Reporter, 1st Series, Volume 1.djvu/720

 712 FEDERAL REPORTER. Mason v. The Lake Erie, Evansville & South-western Railway Company. (Circuit Court, D. Indiana. Jaauiir/ 23, 1880.) Wabash & Ebie Canal — Tow-Path— Absolutb Titlb of Btate — Cosvetance to Trustees — Abandonment. — The state of Indiana, under various acts of the legislature, acquired the absolute title to the tow-path of the Wabash & Brie Cana], and the mere fact that the land ceased to be used for that purpose did not re-vest the same ia the orie- inal owners, where the property in controversy had been transferred to trustees for the beneflt of creditors of the state. DfiTJMMOND, J. Under various acts of the legislature of this Btate there had heen constructed and operated, prior to 1847, a canal called the Wabash & Erie Canal, extending from Evansville, on the Ohio river, to Toledo, on Lake Erie, The Btate became very much embarrassed, and owed to many per- Bons debts incurred for moneys advanced for the construction of the canal, and, by virtue of different statutes, on thethirty- firstof July, 1847, conveyed the canal, with ail its appendages, to the board of trustees of the Wabash & Erie Canal, for the benefit of the creditors of the state. The creditors, by virtue of a decree of this court of Deeember 24, 1875, souglit to enforce their rights against the property conveyed to the trustees, and under its order the property was sold in differ- ent parcels. Under the sale, Dukes, the petitioner in this case, became the purchaser of ail that portion of the canal and its appendages in Vanderburgh and Warrick counties, except -what was within the territorial limits of the city of Evansville, for the sum of |3,250.

In 1872, while the conveyance of 1847 was thus operating upon the canal and its appendages, the defendant railway company took possession of about nine and one-third miles of the tow-path of the canal, being a portion of that purchased by the petitioner, and constructed its railroad upon that part. So far as we know, from the records of this case, this was done by the railway company without any authority from the state, or from the board of trustees, nor was it by virtue of any proceeding under any law of the state. The railway com-