80 Pa. 118 | Pa. | 1876
delivered the opinion of the court,
The action in this case was an ejectment, and the question was one of title only. If the plaintiffs exhibited a valid title, and the city of Allegheny showed none in itself or its citizens, the municipal power of the city over its highways, or its possession of the rights of the state between the lines of high and low water, were no defence to a recovery. The title to Killbuck or Smoky island was therefore the only question. There was no title to this island in any one before the passage of the Act of 28th April 1873. Killbuck, the original claimant, had none, and his assigns were in no better condition. Unless the state had granted a title to the lot owners, or to the city of Allegheny, there was nothing in her way to prevent the passage of the Act of 1873. The fact that the island had been washed away, prevented a grant of the stony or sandy bottom on which it had rested under the ordinary land laws of the state or usages of the Land Office: Allegheny City v. Reed, 12 Harris 39; Poor et al. v. McClure, 27 P. F. Smith 214. But this was no barrier to an express grant by special law.
The Act of 28th of April 1873 was entitled “An Act to perfect the title to Killbuck island, at the head of the Ohio river, north and west of the point in the city of Pittsburg, authorizing and directing the surveyor-general to issue a patent therefor.” The court below construed this act to embrace Killbuck island only, and not all of it, for the judge limited the survey to the natural low-water line of the island on its north side, as it was in 1806; and on the south side of it, to the low-water line fixed by the commissioners under the Act of 1858, which leaves out a part of the south side of the island as it stood in 1806. The verdict was rendered accordingly, limiting the plaintiff’s recovery to the natural low-water line of the island on the north side, that is, on the side next to the main land. If there were any error in this instruction, upon which we give no opinion, it was one of which the city can not complain. The question of discrepancy between the title of the Act of 1873 and its body, is therefore not before us. The Act is good to the extent of the recovery: Dorsey’s Appeal, 22 P. F. Smith 192; Allegheny County Home’s Case, 27 P. F. Smith 77.
The plaintiffs having shown a good title to the land embraced in the verdict, what title was shown in the defence ? There is no
On the other hand, the old channel between the former island and the main land has not been obliterated, much of it remaining in the form of a muddy slough or pond; in time of low water, useless as a highway by land or water, and covered with water in ordinary high stages of the river. That the land lying between the natural low-water line of the former island and the main land, or South avenue, belongs to the state, must, therefore, be conceded,
Nor can the operation of the Act of 1858 be extended by the act of the commissioners in running out the low-water line of the northern shore of the river to include a part of what was Kill-buck island. It was not the purpose of the commissioners to transfer titles, but to mark the boundaries of riparian rights, so as to make them certain and permanent in their extent. So it was not the intention of the framers of the Act of 1858 to pass titles to lands, or to ascertain boundaries between individuals; but it was their purpose to regulate the right of navigation along the shores of these rivers by establishing high- and low-water lines, which
Judgment affirmed.