Foust v. Dreutlein

237 Pa. 108 | Pa. | 1912

Opinion by

Mr. Justice Brown,

In 1833 the canal commissioners of the Commonwealth dammed the outlet of Conneaut Lake for the purpose of storing a supply of water for the Erie division of the Pennsylvania canal. In thus raising the waters of the lake the land which is the subject of this issue was submerged. Subsequently the State sold the canal? and its use as a highway or means of transportation was abandoned. In 1872 the dam across the outlet of the lake was removed and the waters receded to their former level. Whatever title the Commonwealth acquired in the submerged land involved in this controversy has passed, by various conveyances, to Henry Dreutlein, the appellee.

The first contention of the appellants is that the State did not take the submerged land for permanent and continuous use in connection with the operation of the canal, and did not, therefore, acquire title to it in perpetuity. If it be true that the occupation of the land by the Commonwealth was not permanent and continuing, but only of temporary or limited duration, it reverted, upon the abandonment of the canal, to the original riparian owner, under whom the appellants claim. On the other hand, if the canal commissioners, by submerging the land, took it from the owner for the purpose of permanently increasing the water supply to be stored in the lake for the permanent use of the canal, the Commonwealth took a fee in the land, just as it did in the bed of the canal itself. This is to be regarded as settled by an unbroken line of cases, among which are Haldeman v. Penna. Central R. R. Co., 50 Pa. 425; Craig v. Allegheny, 53 Pa. 477; Robinson v. West Penna. R. R. Co., 72 Pa. 316, and Wyoming Coal and Trans. Co. v. Price, 81 Pa. 156. In Robinson v. West Penna. Railroad Company the question was whether the Commonwealth had acquired a fee in a certain tract of land or a mere easement in it, to be used as a basin in connection with the canal, which, upon the abandonment of the canal,, reverted to the original owners; and, in holding that it did not so revert, this court said: “Why should the Commonwealth consent to take and hold a less estate or interest in the basin than in the bed of the canal or towing-path? The basin was as necessary a part of the improvement as either, and its use Avas intended to be as permanent. There was then the same reason for taking an absolute estate in one as the other......There can be no doubt of the right of the Commonwealth, under the Acts of February 25, 1826, P. L. 55, and of April 9, 1827, P. L. 192, to take the land for the purpose of constructing the basin; nor of the owner’s right to have the damages which he sustained by reason thereof, assessed under the provision of the latter act. But the right of the Commonwealth to the land so taken, was an absolute estate in perpetuity; Commonwealth v. McAllister, 2 Watts 190; Haldeman v. Penna. Central R. R. Co., 50 Pa. 425; and could not be defeated or impaired by the owner’s neglect or refusal to make application for the assessment of his damages within the time limited by the act.” All of this applies to the present case. Another case in which it was held that the Commonwealth had taken an estate in perpetuity in a piece of land which it had appropriated for the purpose of constructing a reservoir to furnish a supply of water to a canal is Delosier, et al., v. Pennsylvania Canal Company, 11 Atl. Repr. 400. It was there contended that an estate in perpetuity had not been taken by the Commonwealth ; that it was the owner only of that portion of the land which formed the bed of the canal proper; that the statute expressly stipulated that nothing but an easement could be acquired to any other land taken, and, as the reservoir formed no part of the bed of the canal, on its abandonment the land reverted to the former owners. This contention was not sustained by our late Brother Dean, who presided at the trial of the case in the court below, and, in affirming the judgment upon a verdict directed by him, we said: “The boundaries of the land seized for the use of the State were sufficiently defined; and that the fee thereto vested in the Commonwealth is a matter now so well settled by previous decisions that discussion concerning it is unnecessary.”

When it was discovered by the canal comissioners that the waters of Conneaut Lake in its natural state would be insufficient for the purpose of supplying the canal, the dam was erected. This necessarily caused an overflow on the strip of land surrounding the lake, which included the part here in dispute. When it was submerged it was taken from the then owner by the Commonwealth for permanent use, and, therefore, in perpetuity, just as the land for the bed of the canal had been taken. The land taken for that bed would have been permanently useless unless water permanently flowed through it, and, that water might so flow through it, the canal commissioners took, not temporarily, but permanently, the strip of land surrounding the lake. The three acres claimed by the appellants are part of that land and were included in the strip of which we said, in Conneaut Lake Ice Company v. Quigley, 225 Pa. 605: “When the Commonwealth enlarged the lake, and raised its level, it overflowed a strip of ground all around the lake. After the abandonment of the canal and the return of the waters to the former level, the question of the ownership of the strip of land thus uncovered, arose, and it seems to have been decided, that the fee to this land had become vested in- the Commonwealth.”

A second contention of the appellants is that, even if the Commonwealth did acquire an absolute title to the land in dispute, they now have a title to it, as against the appellee, by adverse possession. In charging the jury, the learned trial judge below submitted to them the question of the sufficiency of the evidence to establish such title, but subsequently, upon being informed that they could not agree upon a verdict, he instructed them that the evidence was insufficient to establish title by adverse possession, and they were directed to find for the defendant. It would serve no useful purpose to review in detail the evidence upon which the appellants rely to establish title by adverse possession. It is sufficient to say that, tested by the well-known' rules as to the proof required to establish such a title, the ultimate conclusion of the learned trial judge was correct, that the appellants had failed to show such adverse, hostile, exclusive, continuoús and notorious possession as has ripened into a title in them.

The assignments of error are overruled and the judgment is affirmed.