Raccoon River Navigation Co. v. Eagle

29 Ohio St. 238

Opinion

By the Court.

Does the record- show that the court of -common pleas erred in rejecting the testimony offered?

We do not know of any law of the State of Ohio, by which “ Big Raccoon river, from its mouth at the Ohio river in Gallia county, Ohio, to the town of Zaleski, in Vinton county, Ohio ” has been declared navigable. Our attention has been called to an act of 1834 (32 Ohio L. 184), which declares, “ That so much of Big Raccoon creek as lies in the county of Gallia is hereby declared a public high-way;” but we can not assume that “Big Raccoon creek’* is “ Big Raccoon river,” or that the stream, from its mouth at the Ohio river to the town of Zaleski in Vinton county, is only that part of the stream which is described in the act of 1834 as lying in Gallia county. And, unless both these propositions be true, it is clear that the attempted incorporation of the plaintiff was without authority of law. If they be true, the record should at least show that the plaintiff' offered testimony tending to prove them, otherwise it does not show that the party wTas prejudiced.

It is suggested that the rejected testimony tended to-prove, at least, a corporation de facto; and that the defendant was estopped, by subscribing to its stock, from denying-its legal existence. The case is not one wherein the doctrine of estoppel can be applied.

Judgment affirmed.