8 Watts 434 | Pa. | 1839
The opinion of the Court was delivered by
Some of the points presented are comparatively unimportant; and as it is intimated that the cause has not been brought here merely for reversal, we have turned our attention particularly to those which involve principles of right.
Over the surface of a public river, riparian owners have no peculiar right. Such is the principle of Carson v. Blazer and Shrunk v. The Schuylkill Navigation Company, which seem to have put the public rights of navigation and fishery on the same footing. The right of navigation, transverse or otherwise, being enjoyed in common, is susceptible of exclusive appropriation only by grant from the public, to whom it belongs; and we have, consequently, no such
Had the judge therefore charged, as it is.imputed to him, that an
The title to the locus in quo is in the defendant’s lessor, and a .material question was whether the plaintiff had not acquired an exclusive right to use it, by a presumptive grant of one of the lessor’s predecessors; as to which, the judge charged that a grant .presumed from exclusive enjoyment is also exclusive. The extent of the right is doubtless determinable by the nature of the use; and the principle admits of a ready application to positive enjoyment, in order to carry the right to the extent of it, the difficulty being to .know whether it may not be carried even further by a want of actual participation on the other side. There is a plain implication of exclusive right, where the full benefit of the supposed grant could not be had from a concurrent enjoyment of it; as in the case of a pew barely sufficient to accommodate the occupant’s family. In the case of a way, the right is not necessarily exclusive, as was admitted in Kirkham v. Sharp, 1 Whart. 333. The rule seems to be, that the grant shall not be extended beyond the purpose to be .answered by it; nor ought it in reason to be. The presumption being that there was an actual grant, there is no room to suppose the grantee paid for, or the grantor parted with, more than was adequate to the purpose. Accordingly, in Martin v. Goble, 2 Camp. 322, a plaintiff who prescribed for a window which admitted more light than was necessary for the business of a madhouse, of which it was part, was not allowed to maintain an action for the ¡erection of a wail which shut out the excess. The proper inquiry below, then, was whether the privilege to land passengers on the .defendant’s soil, would have been curtailed by a concurrent use of it; and it presented a question of fact which was, perhaps, not of easy solution. The place was used only at high, or very low water, and at irregular times of the day. A common landing might be alternately used without collision, by boats plying exactly at stated intervals, and even that is barely possible; but the difficulty is insurmountable where, as on our fresh water rivers, the ferry boat plies whenever a passenger presents himself. In all such cases, the jury ought to presume the right to be exclusive, whenever its value would be lessened, in the least degree, by participation. In
Another material question was whether the use of the easement had been so notorious as to give notice of it to subsequent pur-' chasers. At common law, ap innocent purchaser of a legal title' took it clear of trusts and equities, but not of legal conveyances,' whether known to him or not; but our recording acts, which designed to make all conveyances matter of record notice, put even1 legal conveyances on the footing of equities. An actual convey-' anee of a title to an easement is a legal one, which admits of registration, but a conjectural one does' not; and hence a necessity to affect a purchaser of thg soil, with notice of the latter through some other channel than the public register. By Billington v. Welsh, it was settled that possession, to have that effect, must be several,' distinct, and so notorious as to strike the eye. It was not said that it must be continuous and unceasing; nor could the enjoyment be so, in the case of an easement, for it could not be kept so uninterruptedly in use as to leave the notoriety of it without break or interval; and a rule so strict as to require it, would extinguish the’ title to it at the coming in of the first purchaser. The law, however, is not so unreasonable as not to allow of those ordinary intermissions that are incident to the business to which the easement is subservient. Moreover, it is sufficient, where it exists, that there is something in the aspect of the premises lo put a purchaser on his guard. In Alexander v. Kerr, 2 Rawle 83, a question was made whether the purchaser of a mill was bound to take notice that the darn sometimes flooded ihe land of an adjoining proprietor; and, as the probability of the fact was apparent to the eye, it was held that there was enough to lead hinrto an inquiry. In like manner, was there not enough to lead jhe defendant’s lessor and his-predecessor to the fact that the land líelow was occasionally used for the purposes of this ferry, when it is considered that the upper landing, with its road, was but a few yards above the plaintiff’s boundary? that it was obvious a boat could not reach it at high water? and that to meet such a contingency, there was a visible landina-place, with a road to i.t, at the locus in quo, the object of which must have been suggested by the aspect of the, premises?
It is argued, however, that the certificate of the commissioners in ISOS was the origin of a new grant which, supplanting the Connecticut title, purged the land of its incumbrances; and that it consequently extinguished any grant of the easement in question, which existed at the time. The act of 1799 and its supplements, however, were passed, not to extinguish, but to confirm the Connecticut title within a particular district. The primary one was treated as' confirmatory in Avery v. Dailey, 4 Serg. & Rawle 281; and that it was not styled so in the act itself, is probably because an obnoxious act bearing that, name had just been repealed. Its provi
It is scarce, necessary to add that the admissions by a grantor of the land; while he owned it, were competent evidence against the defendant claiming under him; or that the widow, from whom the plaintiff derives title, was a disinterested witness. She had conveyed her whole estate in the premises without warranty or covenant; and though there was a parol agreement by the plaintiff to pay her a yearly stipend, its continuance was not dependent on the enjoyment of the easement. The bills of exceptions are therefore groundless.
Judgment affirmed.