109 Pa. 600 | Pa. | 1885
delivered the opinion of the court,
It is well settled law in Pennsylvania that the common law of England which deems a river a public highway only so far up from its mouth as the tide flows, does not apply to our large streams, such, among others, as the Susquehanna and its north and west branches. One reason given for so declaring the law was said in Carson v. Blazer, 2 Binn., 475, to be tbe fact that in England the streams in which the tide does not ebb and flow are small, while in this state they are large. The law thus announced in 2 Binn. has been approved and affirmed in Shrunk v. Schuylkill Nav. Co., 14 S. &. R., 71; Johns v. Davidson, 4 Harris, 512; Barclay Railroad and Coal Co. v. Ingham, 12 Casey, 194; Zimmerman v. Union Cana. Co., 1 W. & S., 346. These and other cases have also settled the law that when a navigable river, which is held to he a public highway under the common law of this state, is made the boundary of a grant by the commonwealth, the title passes to low-water mark, but no further. It is to small streams not navigable that the principle of usque ad filum aquae applies : Ball v. Slack, 2 Whart., 538; Coovert v. O’Conner, 8 Watts, 470; Johns v. Davidson, supra; Flanagan v. City of Philadelphia et al., 6 Wr., 219.
Turning then to the able report of tbe Master confirmed by tbe court, it appears that tbe borough of Wilkes-Barre was bounded on tbe northwest by the Susquehanna river at low-water mark. When the city was afterwards incorporated its boundary went no further into tbe river. The township, out of which the borough and the city were carved, was bounded by the river. In like manner the townships situate on tbe opposite side of the river were bounded by the river. The land covered by water situate between the two boundaries was not so granted as to be within any of the municipalities named. The coal underlying the same has since been granted by tbe commonwealth, but it has not been attached to the city of Wilkes-Barre, nor have the boundaries of the city been extended so as to bring it within the limits thereof. Whether this body of coal ought to be subject to taxation, or whether the legislature may not at any time declare it shall be, and provide by what authority it shall be taxed, are questions not before us now. We merely bold, under existing laws the city
Decree affirmed and appeal dismissed at the cost of the appellant.
