88 Pa. Super. 71 | Pa. Super. Ct. | 1926
Argued March 1, 1926. The plaintiff, claiming that the defendant corporation *75 had unlawfully constructed a dock and float on Sawkill Pond, a commercially non-navigable natural pond in Pike County, having an area of about eighty acres, and that its members and guests were unlawfully using the pond for boating and bathing, brought this action in trespass. The parties agreed upon a case stated which, exclusive of the exhibits, will be printed by the Reporter. The court below entered judgment for the plaintiff and defendant appeals.
Defendant attempts to justify the alleged trespass on two grounds: (1) That ownership of its tract of 100 acres carries implied title to the centre or middle of the pond; (2) that a clause in its deed — and present in the chain of title since 1848 —, securing to the owner of the land "the privilege of going to the pond with cattle either at high or low water mark," gives it the right to do the acts complained of.
(1) As respects the first position, it would seem that the defendant in agreeing to the facts of the case stated — (see paragraph one) — has cut the ground from under its feet; for it admits that the plaintiff on August 1, 1924 "was the owner in fee and in peaceful possession of a certain tract of land adjoining defendant's land hereinafter mentioned, covered by the waters of Sawkill Pond, the plaintiff's title papers calling to high water mark as a boundary"; and the description of the premises in plaintiff's deed, which is made a part of the case stated, embraces "All the land covered by the waters of a certain pond known as Sawkill Pond or Cox Pond to high water mark, being about eighty acres of land, more or less." If plaintiff was the owner in fee of all the land covered by the waters of the pond to high water mark, defendant could not successfully claim an implied title to the centre of the pond merely by reason of the ownership of land bordering on the pond. But, assuming, for the sake of argument, that the defendant inadvertently admitted more than it intended by the *76 case stated, we are still of opinion that the learned court below correctly determined that the defendant's title did not extend to the centre of the pond.
It seems to be accepted by both parties that the exhibits attached to the case stated show that John H. Wallace was the common source of title of both plaintiff and defendant; that he had title to all the land affected by this litigation, including the pond; and that whatever remained in him after the grant to Wainwright [defendant's predecessor in title] became vested in the plaintiff. Defendant's first point raises the question whether the deed to Wainwright, which is identical in form with the defendant's deed, passed title to the grantee to the centre of the pond.
The case of Conneaut Lake Ice Co. v. Quigley,
The appellee contends, and rightly so, in our opinion, that the deed from Wallace to Wainwright under which defendant claims title, clearly shows the intent of the parties to retain in the grantor the title to the bed and waters of the pond and only to convey the land up to the line described as running along the east bank of the pond. The description of the premises conveyed supports this contention. It reads, (italics ours), "Beginning at a heap of stones by side of a rock on the east bank of Sawkill Pond; thence [after several courses away from the pond], by other lands of said John H. Wallace [plaintiff's predecessor in title] ...... north 53 degrees west 107 perches to stones; thence by same [that is, by other lands of Wallace] and along the east bankof Sawkill Pond, as follows, north 12 degrees east 72 perches, ...... north 17 1/2 degrees east 16 perches to the place of beginning. Containing 100 acres strict measure, be the same more or less." It will be noted that the deed does not call for the pond as a boundary. The starting point of the survey is not the pond, but "a heap of stones by side of a rock on the east bank of Sawkill Pond." The course *78
leading towards the pond does not call for the pond as the terminal or boundary, but reads "107 perches to stones." And the subsequent courses are not described as "along said pond," etc., but "thence by same [that is, by other lands of Wallace] andalong the east bank of Sawkill Pond," etc., showing the intention that the line of the property conveyed should only run up to and along the edge of the bank and be bounded there by lands of Wallace, the owner of the pond. The description in the present deed is strikingly similar to the description in the deeds considered in Smoulter v. Boyd, supra (p. 148), and Fuller v. Cole, supra (p. 566), in both of which it was held that the deed did not call for the pond as a boundary, nor show an intention to convey to the centre of the pond or grant any rights beyond the fee in the land as described in the deed. Furthermore the very fact that the deed from Wallace to Wainwright specifically provided that the grantee should have "the privilege of going to the pond with cattle either at high or low water mark" is persuasive evidence that the deed did not purport to grant him title to the land covered by the waters of the pond nor confer any rights in it except such as were expressly granted. The grant of an easement implies two tenements; the dominant to which the privilege is attached; the servient, upon which it is imposed: Bradley v. Am. T. T. Co.,
Appellant urges upon us with much insistence the case of Gouveneur v. National Ice Co.,
(2) Nor do we have any doubts as respects the defendant's second point. The grant from Wallace to Wainwright limiting the premises conveyed to the boundary line therein set forth, reserved to the grantor, Wallace, "the privilege of flowing to the top of the bank," once again recognizing in Wallace the continued ownership of the pond and the land under it; but provided that "Wainwright is to have the privilege of going to the pond with cattle either at high or low water mark." The right thus granted is clear and unambiguous. It is limited to the purpose defined in the grant: Bell v. R.R.
The assignment of error is overruled and the judgment affirmed.