317 Pa. 395 | Pa. | 1935
Opinion by
TMs appeal is from a decree restraining defendant from dredging in certain parts of tbe 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.
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, 70 Conn. 685, 697, 40 A. 1058, 1062; Lewis Oyster Co. v. Briggs, 229 U. S. 82.) It also applied to and ob
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,
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, 188 U. S. 445, 468, 470; U. S. v. Cress, 243 U. S. 316; cf. Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 612. The same divestiture must also result from the permanent additional flooding of land formerly submerged (and now navigable), even though the owners’ title to the submerged land theretofore was absolute. The determination of plaintiffs’ right to interfere by the desired injunction, therefore, does not turn on the navigability of the stream before the improvement, though that point was elaborately dealt with at the
Decree reversed and bill dismissed at appellee’s costs.
“The effect of this was to canalize tbe Obio River to some distance above tbe moutb of said creek. It raised tbe level of tbe pool in tbe Obio River to 655 feet 8% inches [above sea level]; and by backwater in Little Beaver Creek, extending about four-tentbs of one mile from its moutb, raised tbe surface of tbe water in tbe creek to tbe same level.” '(Eighteenth conclusion of law.)
It is unnecessary to refer to tbe strips occupied by tbe state highway and by tbe traction company bridge and approach.
Part o£ plaintiffs’ land was acquired by deed in fee and part by condemnation; for the purposes of this review, it is unnecessary to distinguish between them.