176 A. 7 | Pa. | 1934
This appeal is from a decree restraining defendant from dredging in certain parts of the bed of Little Beaver River which plaintiffs claim to own. The decree was based on the learned court's conclusion that the dredging proposed, and required in the future, would constitute a restrainable trespass on their land.
Little Beaver River flows into the Ohio River from the north, a short distance east of the Ohio state line. In 1911, the federal government, to improve navigation, constructed Dam No. 8 in the Ohio River, at a point in the State of West Virginia 5 miles below the Little Beaver. The dam raised the water in the Ohio and its contributing streams.1 With the exception of a strip about 540 feet wide owned by plaintiffs,2 intersecting the defendant's land at a point about 600 feet from the Ohio River shore, defendant owns all the land on the east shore of the Little Beaver, from the north shore of the Ohio River to the Ohio state line. On this land, plaintiffs constructed and maintain their tracks and bridge structures. About *397
1,400 feet from the Ohio River, on the east shore of the Little Beaver, defendant has constructed a coal dock with a present capacity of 4,000 tons a day, which is used as a retail coal yard and terminal for defendant's private railroad. Since 1932, its coal has been floated from its mines in this Commonwealth, down the Monongahela and the Ohio Rivers, and into the Little Beaver to this coal dock in barges which, defendant says in its brief, are 175 feet by 26 feet and capable of carrying 900 tons, although, in the present condition of the stream, defendant may only half load its barges. A stream carrying such traffic is navigable. "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water": The Daniel Ball, 10 Wall. 557, 563; The Montello, 20 Wall. 430, 439; U.S. v. Holt State Bank,
Between periods when the stream is naturally scoured out by its own current, sand, gravel and silt collect on the bottom and interfere with navigation. To clear the channel, defendant applied to the war department, pursuant to the River and Harbor Act of June 13, 1902, 33 USCA, section 565, page 512, and to the Act of March 3, 1899, 33 USCA, section 403, page 397, for and received permission to dredge "the channel of said river to a depth of 9 feet below pool level in the Ohio River for a distance of 0.4 of a mile from the junction of Little Beaver Creek with the Ohio River." (See Lane v. Harbor Commissioners,
While defendant was engaged pursuant to those permits, plaintiffs filed their bill contending (so far as now necessary to state the contention) that plaintiff owned in fee a portion of the river bed being dredged, and that the dredging was a continuing trespass producing irreparable injury. Defendant answered. Voluminous testimony was taken. An exhaustive and very helpful adjudication was filed by the learned chancellor, which, after consideration in banc, became the basis of the decree.
Their ownership,3 it was thought, gave plaintiffs standing to prevent clearing the channel. They traced title out of the Commonwealth, prior to 1911, by warrants including the bed of the stream, and contended the stream was not navigable in its natural state before that year, and that, accordingly, their title was absolute. Defendant contended that the river was, and always had been, navigable, and that plaintiffs' land was subject to the resulting servitude, the dominant right of navigation.
If an improvement in navigation, lawfully made by the United States, permanently floods a riparian owner's fast land, his title is thereby divested for public use (improvement of navigation): Pumpelly v. Green Bay Co., 13 Wall. 166; U.S. v. Lynah,
Decree reversed and bill dismissed at appellee's costs.