81 Pa. 80 | Pa. | 1876
delivered the opinion of the court,
The argument in this case took an extended range of discussion upon the pow'ers of the state, of eminent domain and police. In their leading features, these powers are plainly different, the latter reaching even to destruction of property, as in tearing down a house to prevent the spread of a conflagration, or to removal at the expense of the owner, as in the case of a nuisance tending to breed disease. In the first instance, the community proceeds on the ground of overwhelming calamity; and in the second, because of the fault of the owner of the thing; and in either case compensa
What then are the relations of the state and the owner of the flats or cripple land lying between high- and low-water lines, and over which the waters of the stream ordinarily come and go? When by the grant of the state the owner has acquired title to such lands in a state of nature, it is clearly qualified, being subject to public use, and the right to improve the shores for useful public purposes; yet no duty lies' on the owner to shut out the stream, or by making banks to exclude the natural flow of the water. On the contrary, the owner cannot limit the public right of passage in ordinary high water, by structures or deposits on or near, to the low-water line: Wainwright v. McCullough, 13 P. F. Smith 66; and even occupancy by means of wharves is subject to the public right of regulation. That the state can bank out the water is not denied, for this flows from the right to protect the public right of navigation. In this respect the owner’s right is subordinate or qualified between the two lines, and he cannot demand compensation, and on the other hand, the state cannot improve at his expense. The influx of the water either from the tide or the natural' l’ise of the river is an existing fact, and comes from no fault on his part, while the state conveyed to him only a qualified title in the soil. In her patent she has burthened her grant with no reservation, except that of a proportion of the minerals. By no contract relation can she impose on him the burthen of the public duty of banking out the stream for public purposes. It is no exercise of the police power of the state on the ground, of his fault, whereby
But we have been referred to the case of Crowley v. Copley, 2 La. Ann. 390, as a precedent. It is not, however, in point. The question of the power of the state to levee the Mississippi at the expense of the owner of the land was not made in that case. The question made by the owner was, whether the laAV of Louisiana compelling the owners of lands along the Mississippi to bear the expense of levees, to prevent the overfloAv of the river in high floods, was a tax contrary to the Act of Congress forbidding the imposition of taxes within five years after his purchase of the land from' the United States. The court held that the assessment for levees was not a tax within the meaning and intent of the Act of Congress. No question was made whether the state Act of 1842 Avas constitutional on other grounds. It seems to have been taken for granted that it Avas. Besides the case is not parallel to this. The overflow of the Mississippi in high floods is attended with great destruction of property far inland, as Avell as along the river banks, OAving to the low grade of the whole country. The case is one of great public calamity, where the property of the owner may have to be destroyed, as in the case of a great conflagration, to save the mischief from spreading to the dire injury of the public. This could be the only justification for the private injury. Yet even this is doubtful. The reason why a private building may be demolished to prevent the spread of fire is, that it is called for by the immediate necessity of the case. It must be done on the instant, and because of an actual necessity. But could the state, in a time of security, when no fire is present, pull down buildings without compensation at certain points, where it might be supposed the public interest Avould be served if a fire should happen ? No one would concede this monstrous proposition. The state may open or widen streets, and do many things for public convenience and security, but in doing so she exercises her poAver
A sudden breach and instant danger might change the rule. Mr. Cooley, in his Constitutional Limitations, states the case as a general principle, on the authority of Crowley v. Copley, but without any reference to the precise question decided, or the ground of the exercise of the power. It would seem probable he attributed it to the exercise of the power of eminent domain, as he begins the next sentence with these words: “ And the right of eminent domain is sometimes exercised in order to drain considerable tracts of country.” But if it be this power, the condition of its exercise would certainly be compensation in some form, benefits it might be. A better view of the relations of the owners of land on the Mississippi, it seems to me, is that of Chief Justice Shaw, in the Commonwealth v. Alger, 7 Cushing 86-7, when discussing the power of the state to prevent an owner of tide-water land from removing a natural embankment, to the prejudice of the public. “Principles,” he says, “ are tested by taking extreme cases. Take the case of the river Mississippi, where large tracts of country, with cities and villages, depend for their protection upon the natural river bank, which is private property. Perhaps, under such circumstances, it might not be too much to say, not only that the owner cannot do any positive act' toward removing the embankment, but that he may properly be held responsible for the permissive waste of it by negligence and inattention.” Here is no intimation of a liability to throw up new banks, but only a moderate expression of opinion of liability for waste. A natural marsh, between high- and low-water lines, has no such features as the Mississippi lands, and no such great public calamity to guard against. No one is interested but the owner of like marsh lands, having a like qualified title, subject to a like natural flow of the river. So much may safely be said of the original or natural state of the property. But where the state has banked out the water, and the owner is left in possession of the improvement made by the state, under her sovereign authority and at her own expense, it seems to me he stands in a new and different relation. The state having, by her own-authority, taken the land between high- and low-water lines out of the public use, has, in effect, appropriated it to the use of the owner of the qualified title, and in effect conferred upon him an absolute .title. She has thus benefited him, and it is but just that the duty of repair should now devolve upon him. To this extent we may, I think, conclude that the Act of March 25th 1848, under which this proceeding took place, is constitutional: Pamph.
/The law, it will be seen, provides no mode of determining the necessity for repair, not even the judgment of the commissioners, for they are bound on complaint, forthwith to give notice, and the owner is bound, within forty-eight hours after notice, to make the repairs, and on default, the commissioners shall do the work at his expense. Whether the bank actually needs repair, or the injury complained of, if any, is a total destruction of the bank, demanding reconstruction, or a mere repair, which the owner is bound to do, is not to be ascertained before the liability is settled upon him. He is to pay at all events, and this case itself is evidence of the necessity of the provision to determine the nature of the thing complained of, for we have a finding of $6445.66 against the defendant, a sum which looks,more like the price of reconstruction than of repair. Repair is all this law provides for. Perhaps some allowance might be made, and the clause requiring the commissioners u to cause the banks to be well and thoroughly repaired,” might be interpreted as inferentially requiring an examination and
Judgment affirmed.