Commonwealth v. Foster

36 Pa. Super. 433 | Pa. Super. Ct. | 1908

Opinion by

Rice, P. J.,

■ This case came into the court below by appeal by the defendant from a summary conviction by a justice of the peace for a violation of the provisions of the Act of April 14,. 1905, P,' L. 169, entitled, “An act making it unlawful to trespass upon land posted as private property, and providing a penalty therefor,” As an appeal from the judgment of the quarter sessions in such a case- does not bring up the evidence, the case is not before us for review upon any question of fact. We must presume, therefore, that all of the essentials to a conviction, as set forth in the judgment, were established by competent and sufficient evidence, and, amongst these, the facts that the defendant willfully entered upon the land of David Hopkins, the relator, without his consent, that printed notices that it was private land and warning all persons against trespassing thereon had been previously posted by the owner in the manner prescribed by the act, and that the notices remained so posted at-the time of the alleged trespass. Nowhere in the record proper is it expressly stated that the land upon which the defendant entered was the bed of Lack-awaxen creek. It is conceded, however, on all hands that such is the fact. But neither that fact nor any other fact upon which the court based its judgment qualifies in any degree the relator's ownership of the land. But although his ownership is undisputed, it is contended that he cannot claim the protection of the act of 1905 (and if so he could not maintain the common-law action of trespass) as against one going upon that part of his land for the purpose of fishing, because by the prior act of 1901 the legislature declared that “public fishing shall exist” in certain waters, and amongst them “all waters or parts of waters that have been or may be declared navigable by acts of assembly,” in which class of waters, it is claimed, the part of Lackawaxen creek where this alleged trespass was committed was placed by the act of 1814. It is not seriously claimed, at least, it cannot be successfully claimed, that this asserted right of the public to go upon the land in question for the purpose of fishing is a common-law right, nor that it was reserved by the commonwealth in its. grant of the land to the relator’s predecessors in title, nor that it was conferred by the act of 1814. Therefore, to sustain appellant’s contention that he, as well as every other member of the general public, has this right, these propositions must be established: first, that the legislature intended by the act of 1901 (a) to include in the designation "all waters and parts of waters that have been or may be declared navigable by acts of assembly” every stream, large or • small, navigable or unnavigable, that had been declared a “ public highway for the passage of rafts, bo.ats and vessels,” (b) to give to every member of the public the right to go upon the land over which any such stream flows for the purpose of fishing, and to that extent to deprive the owner of his dominion over the same; second, that this right still continues notwithstanding the generality of the words of the act of 1905; and, third, that it was within the power of the legislature to give the public such right, and to thus restrict the dominion over land which appertains to private ownership,, without providing for just compensation being made or secured to the owner, and that, too, although the stream be not in fact navigable by nature, and has never been in fact, or been declared by the legislature, a public highway except for a limited purpose. Before adopting a construction of the twenty-third section of the act of 1901, which would be so far reaching in its effect upon the right of the owner of land to control its use, so long as such use does not injuriously affect others, it ought to be clear that the very words of the act require such construction. To say the least, there is room for argument that the words of the twenty-third section, particularly when read in connection with the preceding section, do not require the construction which the appellant’s counsel claim for them. But be that as it may, and assuming that the legislature intended all that is claimed, we cannot agree with the appellant’s counsel that the legislation can be sustained as a legitimate exercise of the police power, upon the ground — and we must so construe their printed argument— that the public health and comfort will be subserved thereby. No case cited by the learned counsel goes to the extent, or anywhere near the point, of holding that it is within the power of the legislature to provide for the public the means of healthful recreation upon private land, and for that purpose to deprive the owner of this right to control the use of it, without compensating him for such partial or total destruction of his dominion’ over it. If the legislature may do it in the manner and‘for the purpose here claimed, it would be difficult to draw the- line beyond which it may not go for that purpose. In the case of Vermont v. Theriault, 43 L. R. A. 290, which .goes as far as any- in asserting the jurisdiction of the state over such streams as this, it was carefully noted in the opinion of the majority of the court that by providing that such waters should be waters over which the state has jurisdiction the legislature did not take away the riparian owner’s right to maintain' trespass against everyone who should enter without his license upon his premises and catch fish from the nonboatable stream thereon. But we need not prolong the discussion. Our purpose in what we have said has been to state the question for decision and our conclusion thereon. The nature of this creek, and the uses to which it is adapted, and has'been -put, as well as the legislation pertaining to it and similar streams,- have been fully set forth in the opinion of the learned judge below. He has also discussed the legal questions as fully as is profitable, and has sustained his conclusion by reasoning and citation of authority which make -it unnecessary for us to add anything further to what he has so well said.

The judgment is affirmed.