3 Rawle 76 | Pa. | 1831
The opinion of the court was delivered by
The foundation of the licence mainly relied on at the trial, .was a supposed grant in the patent of 1689. The patent 'was issued to twenty-four grantees “ for the use of a mill;” and hence, as the land granted did not afford a sufficient water power for the purposes of the mill, which it appears was even then erected, it is supposed that this designation of the object in view, amounted by necessary implication to a grant of any additional power that was at the disposal of the proprietary. It might admit of a question, whether a grant by one, who acted in the capacity of a sovereign, could be extended by implication, without proof of knowledge, that such extension would be absolutely necessary to carry the main design into effect. Again, it seems the patent was not issued as evidence of an original grant, but to confirm the grantees in possessions guarrantied to them in the act of cession by which the Swedish colony passed to the British crown. If so, the grantees held by title paramount; and if the lands of the plaintiff were held by the same species of title, as is altogether probable from the circumstance that it lay in the heart of the Swedish settlement, and contiguous to what was called the governor’s palace on Tinicum Island, it could not be affected by any grant or reservation of the proprietary, as either would be in derogation of the treaty. The inclination of my mind, however, happened to be in favour of supporting the implication of a grant strengthened, as it seemed to be, by a long, and at one time an uninterrupted possession and use of the right. But evidence having been given of a
Judgment reversed, and a new trial awarded.