Freeland v. Pennsylvania Railroad
47 A. 745
Pa.
1901
Check Treatment

Opinion by

Mb. Justice Brown,

The plaintiffs are riparian owners along the Juniata river, in Perry county. Their land, consisting of a farm of about 100 acres, is located on the north bank of the river, which naturally approaches it in a sort of semicircle form. The flow of the water, as it comes down towards this land, is southeast, until it reaches the apex of the bend, where, before the wrong complained of, it was deflected to the northeast, and then passed eastward along plaintiffs’ property. Before the construction of the embankment by the appellant on the south bank of the river, which caused the injury to appellees, as found by the *537jury, there came, from immemorial time, with the flowing of the river and the swelling of its waters, deposits of valuable sand on plaintiffs’ shore between high and low watermarks. As certainly as “ seed time and harvest, and cold and heat ” did “ not cease, ” these deposits never ceased in season, so long as the stream flowed as was its wont. Its dashing current, in times of high water, after having passed the lowest point of the bend at Trimmer’s rock, became a gentle flow when it reached the shore of plaintiffs, from which the grains of sand settled and imperceptibly formed the alluvium at the bottom. In 1896 the Pennsylvania Railroad Company, in straightening its tracks at Trimmer’s rock, built an embankment, which occupies not only the bank of the river, but extends out over and beyond low watermark. Since its completion, the waters of the river, in the reeurringfloods, no longer flow past plaintiffs’ property in a gentle stream, but, encountering this artificial obstruction, are abruptly turned towards the north bank, and, instead of flowing, as from time out of mind before, along plaintiffs’ shore, depositing the sand with which they had come freighted, they dash wildly on. The deposits have ceased, and with the current of the stream so changed, it is now insisted, as found by the jury, that they will never return. With the loss of this sand, the plaintiffs are deprived of a revenue from the sale of it, which was as regular as the return from their crops, and the question on this appeal is, whether the railroad company, having, by its obstruction of the natural flow of the river, deprived the owners of the farm of what they claim was its most valuable incident, must compensate them for the loss. In April, 1896, after the embankment had been built, there was the usual spring flood, and a large quantity of sand that had been deposited was swept away. The verdict of the jury in favor of the plaintiffs was not only for it, but for the loss of future deposits, their finding having been: “ For sand bank carried away $1,382.50, for destruction of the habit of the farm to gather future sand, $1,117.50. ”

The Juniata is a navigable river. From the original survey of April 28, 1765, down to the deed of March 9,1829 to the father of appellees, who derive their title from him, every description of their farm gives the river, with its several courses, as a boundary; and their lands, therefore, run to its low water*538mark. This has been so long settled and is so generally known that it is hardly necessary to cite the following: “Ever since the case of Carson v. Blazer, 2 Binney, 475, decided in 1810, it has been held in many cases that a survey, returned as bounded by a large navigable river, vests in the owner the right of soil to ordinary low watermark of the stream, subject to the pub-lie right of passage for navigation, fishing, etc., in the stream, between ordinary high and ordinary low watermark. Variety, in the language of the return matters little, so that the intention to make the stream a boundary appears sufficiently in the description and diagram. In determining this both are taken together. The variety of expression in the decided cases is very great. . . . The result of the cases is, that when a return of survey calls for a stream as its boundary, or to run by, along, up or down it, the title will run to the stream, and the marking of trees on the bank or margin of the stream to identify the lines run to the river, as well as the return of courses and distances measured along the margin, necessarily to ascertain the quantity of land in the survey, will not restrain the title to the bank or margin only. As was said in Klingensmith v. Ground, supra, a comer tree is not always to be had where it is wanted, and then the next most convenient must be taken; or as in Ball v. Stark, supra, a surveyor cannot run a curved line with compass; but if a creek is returned as the line there can be no mistake as to it, and the courses and distances along it are to be disregarded:” Wood v. Appal, 68 Pa. 210. “Where a running stream is called for, it is always understood that the ownership extends to low watermark, and so far has this been held in Pennsylvania, that a traverse line has been held, technically to pursue the meanders, so as to include the points that would otherwise be thrown out by it. Though the words ‘ near the creek, ’ strictly speaking, imply the existence of space betwixt the object immediately expressed, and the object of reference beyond it, they indicate, in popular meaning, no more than the whereabout. Such is the general rule, and what is there to take the case out of it ? If the words 6 thence up the creek north,’ do not call for the creek as a boundary, why was the creek mentioned at all? ” Klingensmith v. Ground, 5 W. 458. “ In Pennsylvania, wherever a stream is navigable, and it is made the boundary of a grant by the state, the title passes to *539low watermark, but no farther: ” Johns v. Davidson, 16 Pa. 512.

Though the title of a riparian owner to the soil extends to low watermark, it is absolute only to high, and qualified as to what intervenes. Between high and low water he can use the land for his own private purposes, provided that, in such use of it, he does not interfere with the public rights of navigation, fishery and improvement of the stream. “ This being the navigable character of the stream, [Allegheny] the rights of the riparian owners are settled by numerous decisions, a few of which may be referred to: Carson v. Blazer, supra; Shrunk v. Schuylkill Nav. Co., supra; Ball v. Slack, 2 Wh. 508 ; Zimmerman v. Union Canal Co., 1 W. & S. 346; Bailey v. Miltenberger, 7 Casey, 37; McKeen v. Delaware Div. Canal Co., 13 Wr. 424; Tinicum Fishing Co. v. Carter, 11 P. F. Smith, 21, opinion by Siiaiiswood, J., decided last winter at Philadelphia. From these and other cases, it will appear that the absolute title of the riparian proprietor extends to high watermark only, and that between ordinary high and ordinary low watermark, his title to the soil is qualified, it being subject to the public rights of navigation over it, and of improvement of the stream as a highway. He cannot occupy to the prejudice of navigation or cause obstructions to be placed upon the shore between these lines, without express authority of the state:” Wainwright v. McCullough, 63 Pa. 66. “ As between themselves, riparian owners are owners of the soil, and are bound to observe the obligations that grow out of their ownership and their proximity.” In Zug v. The Commonwealth, 70 Pa. 138, it was held that “ an owner of the soil might use the river bed between high and low watermarks for his own private purposes, if he did not interfere with the rights of the public: ” Fulmer v. Williams, 122 Pa. 191. In the Coregoing is found the clearly defined right of the appellees in the river bed between the high and low watermarks. We are hext led to the consideration of what the right was in the sand deposited there, which was swept away by the act of the defendant in changing the current of the stream.

Alluvion has been defined to be those accumulations of sand, earth and loose stones or gravel brought down by rivers, which when spread out to any extent, form what is called alluvial *540land. It is the addition made to land by the washing of the seas or rivers; and its characteristic is its imperceptible increase, so that it cannot be perceived how much is added in each moment of time: Angelí on Watercourses (7th ed.), sec. 53. This is practically the definition of the sand, or alluvium, deposited on the plaintiffs’ shore, and the right to it can be no less than that to alluvion, which is ownership in the owner of the land increased: Gould on Waters, sec. 155 ; Lovingston v. St. Clair County, 23 Wall. 46; Kinzie v. Winston, 56 Ill. 56. That these deposits had not been allowed to accumulate and become a visible portion of the land of the appellees abutting on the river, but had been a valuable sediment on the shore between high and low watermarks, cannot affect the rule that the accretions belong to the owner of the land. The owners here owned it to low watermark, the only qualification upon their right to the use of it between high and low water, being that no public right of navigation, fishery or improvement should be interfered with. In removing the sand no such public right was affected, and the appellees took simply what belonged to them, as rightfully as the crops from their fields, the only difference being that, in the one case they harvested after sowing, whilst, in the other, nature without their aid, brought them increase. This right to the sand was not only to it in situ, bu.t, with the clearly defined ownership of the ajjpellees between high and low watermarks, extended, as the learned trial judge properly held in his charge to the jury, to future deposits. “ The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of .the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim ‘qui sentit onus debet sentiré commodum’ lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if a gradual gain, it is his. The principle applies alike to streams that do, and to those that do not overflow their banks, and where dikes and other defenses are, and where they are not, necessary to keep the water within its proper limits: ” Lovingston v. St. *541Clair County, 23 Wall. 46. Nothing need be added to these words of Mr. Justice S wayne.

The loss of the sand washed away and of the right to future alluvium having been caused by the defendant, it must compensate the appellees in damages. This liability cannot be evaded, whether the loss resulted from the appellant’s exercise of the right of eminent domain, or from its act as a riparian owner. The construction of the embankment by the railroad company was for the improvement of its own highway and not of the Juniata river; and, if it was constructed under the right of eminent domain, liability to the party injured follows such exercise, to be enforced in trespass: Northern Cent. Ry. Co. v. Holland, 117 Pa. 613; County of Chester v. Brower, 117 Pa. 647 ; Delaware County’s Appeal, 119 Pa. 159. If it acted simply as a riparian owner, it was bound by the rule, “ sic utere tuo ut alienum non lsed as,” disregard of which generally means, not only injury to another, but liability for the wrong committed. “ If a riparian owner places a structure upon his own land between high and low watermarks that impedes navigation, he infringes the public right, and subjects himself to liability therefor. His ownership of the land over which the water flows along the shore will not relieve him from the consequences of his act, for his title to the shore is subject to the right of the public in the stream. If he places the structure in such manner as to throw the current against his neighbor’s shore at such an angle as to wear it away and undermine and wash out his land, he inflicts a private injury upon his neighbor for which a right to compensation exists. In the case of a private stream, no one would doubt the right of an injured owner to maintain an action for the damages suffered by him by reason of a change in the current. But one has no more right to injure another with the water of a navigable stream than with that of a nonnavigable, private stream. It is not the character of the stream, but the character and consequences of the act of the owner of the shore that determines the right of the injured party to compensation. As between themselves, riparian owners are owners of the soil, and are bound to observe the obligations that grow out of their ownership and their proximity. In Zug v. The Commonwealth, 70 Pa. 138, it was held that an owner of the soil might use the *542river bed between high and low watermarks for his own private purposes, if he did not interfere with the rights of the public. This declaration is, however, to be understood as qualified by the rule we have just considered, that he must not, in the exercise of his right as a riparian owner, inflict injury upon his neighbors. This rule sets limits to the manner in which property of every description may be used, and is unaffected by the. accident of location: ” Fulmer v. Williams, 122 Pa. 191.

The damage done to the land of appellees is permanent. Their sand has been washed away and its value destroyed. The river no longer brings, nor will bring, alluvium to the shore, and the farm has lost its most valuable incident. The instruction of the court as to the measure of damages was correct. It is true that, as to future alluvium, the finding of the jury was conjectural. It could not have been otherwise. But the plaintiffs’ claim for it was substantial, and the verdict, which cannot be said to be unreasonable, is their compensation for it.

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