Poor v. McClure

77 Pa. 214 | Pa. | 1874

Chief Justice Agnew

delivered the opinion of the court,

That the Allegheny river is a navigable stream, and was so recognised before the year 1798, has been shown in Wainwright v. McCullough, 13 P. F. Smith 66. The Act of 21st March 1798 was but declarative of the fact, as to the Ohio and Allegheny; its manifest purpose being to reach and declare the large tributaries of these rivers navigable streams, viz.: the Rig Beaver, emptying into the Ohio, and French creek, Conewango, Cassawanga, Little Conneaut, Toby’s, Oil, Brokenstraw and Red Bank creeks, tributaries of the Allegheny. In the early history of the state, the Allegheny was known as the Ohio, and was so described in the treaty with the Indians made at Fort Stanwix, November 6th 1768, and also in the treaty made at Fort Stanwix in October 1784, 2 Sm. Laws 122, 123. Part of the western and southern boundary lines are thus described in the treaty of 1768: “ to the said west branch of the Susquehanna, then crossing the said river and running up the same on the south side thereof, the several courses thereof to the fork of the same river, which lies nearest to a place on the river Ohio called the Kittanning, and from the said fork by a straight line to Kittanning aforesaid, and then down the said river Ohio by the several courses thereof, to where the western bounds of said province crosses the same river, and then with the said western bounds to the south boundary thereof, and with the south boundary aforesaid to the east side of the Allegheny hills, &c.” The treaty of October 1784 is for the land within the state lying west and north of the purchase of 1768, and is bounded eastward by the line of the treaty of 1768, reciting it by quotation in the language just given. The treaties were not adverted to in Wainwright v. McCullough. They throw light on the 13th sect, of the Act of 8th April 1785, excepting islands in the Ohio, Allegheny and Delaware from ordinary appropriation.

The bed, bars and shoals of the Allegheny are governed, therefore, by the laws relating to the beds, &c., of navigable streams. This brings us to the question as to the validity of the warrant from the Commonwealth to John W. Dunn and Wm. G-. Poor, for fifteen acres of unimproved land, dated 16th March 1868, and the survey and patent thereupon. The land taken up under the warrant is admitted to be the old channel of the Allegheny river between Wainwright’s Island and the main shore on the southeastern side of the river, lying also between the patent to Conrad Winebiddle, dated December 31st 1787, and the patent to George Wallace, July 22d 1806, surveyed on an order of April 7th 1798, for the island then known as Cork’s Island, three miles above Pittsburg. A special verdict for the plaintiff was rendered, subject to the reserved questions whether any title passed under the patent to Dunn and Poor, and if so, whether it extended to the original low-water lines of the Winebiddle and Wallace patents, or to the low-water lines established by the commissioners under the Act of 16th April 1858, Pamph. L. 326. The decision of the first question in the negative will render any decision on the second question unnecessary. But as the case has been argued with reference to the low-water lines of the commissioners, it will be proper to say we adhere to the interpretation given to the effect of the lines of the commissioners in Wainwright v. McCullough. These lines were not to settle questions of private boundary, but to define and fix permanently the boundaries of high and low-water between the riparian owners and the state, for the benefit of those exercising the public right of navigation. As said in that case, the subject itself is incompatible with a regulation of boundaries between land owners, for the bed of the stream belongs to the state and necessarily lies between and excludes controversy with an opposite owner, while the act itself refers to no other lines than those of high and low water. Another consideration exhibiting this is, that the high-water line, standing precisely on the same basis with the low-water line, as to defining and fixing it, being wholly within the lines of the owner’s survey, could by no possibility have any reference to the boundaries of other persons. The purpose of the legislature evidently was so to define and fix these lines with accuracy, in and near to Pittsburg, as to prevent encroachments on the public right of navigation, either by building beyond the low-water line into the stream, or by placing obstructions to navigation between high and low-water mark. How far the line of the commissioners, when differing from the natural low-water line, will bind the riparian owner in a question of title to the soil, was not a question decided in Wainwright v. Wallace, and is not intended now to be determined, holding as we do in this case that the appropriation of the channel of the river by Dunn and Poor was without authority of law.

The beds, gravel and sand-bars of the navigable rivers of this state are not subject to private appropriation under the ordinary system of land laws: Allegheny City v. Read, 12 Harris 39; City of Allegheny v. Nelson, 1 Casey 332; Brandt v. McKeever, 6 Harris 70. This rule grew out of the interests of the state in preserving the navigation of her great rivers, and as a consequence it has always been held that the surveys on navigable streams do not extend the title of the riparian owner beyond the ordinary low-water line, and between it and ordinary high-water line the ownership of the land is subject to the public right of navigation. These lines were considered and their extent defined in Stover v. Jack, 10 P. F. Smith 340; see also Wood v. Appal, 13 P. F. Smith 210; Grant v. White, Id. 271. These positions bring us to the precise question before us, to wit, whether a warrant can be taken out in the ordinary forms of the Land Office to appropriate land made in the channel by filling up, caused by damming up the water in one place and making a street across it in another, raised by embankment under authority of an Act of Assembly. No precedent for such an appropriation has been shown or is known to us, while it is contrary to the practice of the Land Office since the extinction of the rights of the proprietaries of the province by the Act of 27th November 1779, 1 Sm. Laws 479. The sixth section of that act subjected the “said soil and lands” to such disposal, alienation and appropriation as the legislature then or thereafter should deem meet and expedient. The first act establishing a land office under the Commonwealth, was passed April 9th 1781,1 Sm. Laws 529. The twelfth section provided that no grant, warrant or location, after the 4th of July 1776, should be valid for lands or lots within ten miles of Philadelphia, within three miles of a county town, or for a greater quantity than five hundred acres, or any lands or lots not granted in the usual form-s of the Land Office, or lands not within the Indian purchase.” The next general act for opening the Land Office for granting and disposing of the unappropriated lands within the state, passed April 1st 1784, 2 Sm. Laws 102. The second section confined the acts of the officers of the Land Office, as to locations, warrants, patents, &c., to doing and performing these functions, “ agreeable to the former customs and usages of the said offices.” The sixth section directed that when the Indians should be satisfied for the unpurchased lands within the state, the surveyor-general should appoint district surveyors, “ for laying out all such lands wdthin the said purchase as shall be found fit for the purpose of cultivation,” &c. This was followed by the Act of 3d April 1792, granting the lands north and west of the Ohio and Allegheny rivers and Conewango creek, to settlers and to warrant holders. The ninth section provides that the holders of warrants shall cause them to be settled and improved within two years after the date of the warrant. Two years later came the Act 22d April 1794, forbidding applications for unimproved lands in the new purchase. It was followed by the Act of 22d September 1794, prohibiting applications for lands, except for such as had been or should be settled, grain raised and a person residing thereon. This current of legislation shows that the lands within the ordinary jurisdiction of the Land Office, were those granted upon application according to the usual forms of the office, and such as were fit for settlement and cultivation, and were not within the navigable streams. This is evidenced also by the exception of islands in the Susquehanna, Ohio, Allegheny and Delaware, in the 13th section of the Act of 8th April 1795, 2 Sm. Laws 317, and by the description in the Act of 3d April 1792; the first section of which describes the land for appropriation as lying east of the Allegheny river, and the second section describes the land as lying west of the Allegheny river ; in both instances excluding the river itself. In all this legislation we discover a fixed intent to open to general appropriation ordinary land outside of the navigable streams, and as a consequence no surveys were made across these streams. As to the smaller streams, it was different, the surveys often crossing them, and when laid along the margin, the law extended the title ad ftlum aquce: Coovert v. O’Conner, 8 Watts 470.

The case before us, therefore, does not fall within the ordinary jurisdiction of the Land Office, the land being within the acknowledged channel of the river, and the filling up arising from artificial means, and not by the slow process of natural deposit. The case is exceptional, and therefore requires a particular or special authority of law to open it to general or particular appropriation. No provision is made for such a case. The legal presumption from the locus in quo is that the land is still a part of the bed of the river, until some legal proceeding shall have established the contrary, and a law shall open it to private appropriation. Without this, the land officers, who are ignorant of the peculiar circumstances of the case, may be betrayed into a grant of the river bed prejudicial to the rights of the public. To assume that the land is fast land and not subject to overflow at ordinary high water, might be to make a grant against the fact of the case. Such a ease is not to be governed by the ordinary rule of appropriation, but like an escheat or a forfeiture accruing to the Commonwealth, must be provided for by a law specially applicable to it: Bagley v. Wallace, 16 S. & R. 245; Blaine’s Lessee v. Crawford, 1 Yeates 287; Freytag v. Powell, 1 Wharton 536. The land in question was therefore not subject to be taken up under the warrant to Dunn and Poor, and the judgment must be affirmed.

Affirmed.