CANAL. An artificial cut or trench in the earth, for conducting and confining wa ter to be used transportation. See Bish op v. Seeley, 18 Conn. 394.
Public canals originate under statutes and charters enacted to authorize their construc tion and to protect and regulate their use. They are in this country constructed and managed either by the state itself or by com panies incorporated for the purpose. These commissioners and companies are armed with authority to appropriate private property for the construction of their canals, in exercis ing which they are bound to a strict com pliance with the statutes by which it is con ferred. Where private property is thus tak en, it must be paid for in gold and silver ; State v. Beacknio, 8 Blackf. (Ind.) 246. Such payment need not precede or be cotempo raneous with the taking ; Rogers v. Brad shaw, 20 Johns. (N. Y.) 735 ; Hankins v. Lawrence, 8 Blackf. (Ind.) 266; though, if postponed, the proprietor of the land taken is entitled to interest ; People v. Canal 'Confrs, 5 Denio (N. Y.) 401; Harness v. Canal Co., 1 Md. Ch. Dec. 248. A city through which a canal passes cannot construct levees along its banks and recover the cost thereof from the canal company ; City of New Or leans v. Canal & 'Nay. Co., 42 La. Ann. 6, 7 South. 63.
After the appropriation of land for a canal, duly made under statute authority, though the title remains in the original own er until he is paid therefor, he cannot sus tain an action against the party taking the same for any injury thereto ; Turrell v. Nor man, 19 Barb. (N. Y.) 263 ; Ligat v. Com., 19 Pa. 456. But if there be a deviation from the statute authority, the statute is no pro tection against suits by persons injured by such deviation; Lynch v. Stone, 4 Denio (N. Y.) 356 ; Farnum v. Canal Corp., 1 Sumn. 46, Fed. Cas. No. 4,675 ; 2 Dow. 519. Though a special remedy for damages be given by a statute authorizing the construction of a canal, the party injured thereby is not bar red of hls common-law action ; Denslow v.
New Haven & N Co., 16 Conn. 98. But see, to the contrary, Stevens v. Canal, 12 Mass. 466 ; Town of Lebanon v. Olcott, 1 N. H. 339. The legislature has the exclusive power to determine when land may be taken for a canal or other public use, and the courts can not review its determination in that respect; Harris v. Thompson, 9 Barb. (N. Y.) 350;
Hankins v. Lawrence, 8 Blackf. (Incl.) 206.
In navigating canals, it is the duty of the canal-boats to exercise due care -in avoiding collisions, and in affording each other mu tual accommodation ; and for any injury re sulting from the neglect of such care the proprietors of the boats are liable in dam ages ; 1 Sher. & Redf. Neg. 404 ; Rathbun v. Payne, 19 Wend. (N. Y.) 399 ; Sheerer v. Kis singer, 1 Pa. 44. The proprietors of the canal will be liable for any injury to canal boats occasioned by a neglect on their part to keep the canal in proper repair and free from obstructions ; Riddle v. Proprietors, 7 Mass. 169, 5 Am. Dec. 35; James River & Kanawha Co. v. Early, 13 Gratt. (Va.) 541; Muir v. Canal Co., 8 Dana (Ky.) 161; Moore v. Canal, 7 Ind. 462 ; Griffith v. Follett, 20 Barb. (N. Y.) 620; 11 A. & E. 223. Where a state exercises control over a canal, it is lia ble for injuries caused by an officer's negli gence in failing to repair bridges over it; Woodman v. People, 127 N. Y. 397, 28 N. B. 20.
In regard to the right of the proprietors of canals to tolls, the rule is that they are only entitled to take them as authorized by stat ute, and that any ambiguity in the terms of the statute must operate in favor of the public ; 2 B. & Ad. 792 ; Perrin v. Canal Co., 9 How. (U. S.) 172, 13 L. Ed. 92; Myers v. Foster, 6 Cow. (N. Y.) 567 ; Delaware & H. Canal Co. v. Coal Co., 21 Pa. 131. A stat utory authority to charge tolls upon boats, etc., used for transportation along it gives no authority to charge tolls on tugs while towing vessels through the canal or on the return trip ; Sturgeon Bay Harbor Co. v. Leatham, 164 Ill. 239, 45 N. E. 422.
A canal constructed and maintained at private expense is like a private highway over which the public is permitted to travel, but in which it obtains no vested right; Pot ter v. Ry. Co., 95 Mich. 389, 54 N. W. 956.
An easement in the waters of state canals cannot be acquired by prescription; Bur bank v. Fay, 65 N. Y. 57.