Page:Federal Reporter, 1st Series, Volume 1.djvu/722

 714 FEDERAL REPORTER. �forced by the decree of this court in the sale of the canal and its appendages, it had been abandoned as such, and bad eeased to be used for several years. �As the case originally stood I had some difficulty in sus- taining any equity which the petitioner might have, in conse- quence of the partieular situation of the property at the time it was taken possession of by the railway company, and because of the purchase made many years afterwards by the petitioner; but I think that difficulty bas been obviated by a stipulation made between ail the parties to the controversy, in which it is agreed that the railway company, being in pos- session of the property, and the petitioner only claiming com- pensation for what may be his interest, he shall make an absolute conveyance to the railway company of ail his interest, upon the payment of such sum as shaU be ultimately decided by this court or by the supreme court of the United States. �I think I must hold in this case, and so affirm the ruling of the master, that in view of ail the legislation on the sub- ject by thia state, and the later decisions of the supreme court of the state thereon, the state acquired an absolute title to the property in controversy in this case. The Water-Works Co. V. Burkhardt, 31 Ind. 36e; Fleming v. Nelson, 56 Ind. 310. This is not like the case of Kennedy v. City of Indian- apolis, decided in this court in March, 1878. In that case the canal had never been completed or operated as a canal, and it was through a public street of the town that the canal was xntended to be constructed. It was, therefore, a case of an attempt to construct a canal which was abandoned before completion. It was a case where the right to land, if any existed, was abandoned before use. In this case it is differ- ent. The land for the canal throughout its whole length, so far as this case is coucerned, was taken. The canal wa,a constructed and operated for many years. There was thus acquired by the state the title to the land occupied by the canal, and its necessary appendages, and because the canal, after being used for a series of years, was abandoned, and the land eeased to be occupied as a canal, it did not cease to be the property of the state. This was one of the great Systems ��� �