133 A. 377 | Pa. | 1926
This appeal by defendant is from judgment entered on a verdict for plaintiffs, in an action of trespass for the removal of soil from land claimed by the latter. Judgment *275
should have been entered for the defendant n. o. v. The Susquehanna River, running in a northerly direction, passes between Wilkes-Barre and Edwardsville, the latter being on its easterly side. At this point Fish Island, a piece of tillable land, divided the river so there was an east and west channel. About 1882 the United States Government, to improve navigation, erected a dyke across the east channel, thus enlarging the flow of water in the west. In times of flood the water overflowed the dyke and ran down the east channel, carrying with it culm, soil and other debris, which, in the course of fifteen or twenty years, largely filled up that channel. In 1915, the defendant railroad company extended its railway, inter alia, across the east branch some distance below the dyke and in so doing purchased the island and, in constructing an embankment, excavated it and some surrounding soil. Plaintiffs owned a piece of land below the dyke on the east side of the river and brought this suit on the contention that such excavation had encroached upon their land, which land their statement of claim describes as follows: "Beginning at a corner of land of Mary A. Garney, thence by land of the heirs of E. B. Harvey, deceased, south fifty-two degrees, west about twenty-eight and 5/10 perches to the Susquehanna River, thence along the said river south twenty-two degrees, east thirty-eight and 5/10 perches, thence north fifty-two degrees east about forty and 9/10 perches, and thence by land of Mary A. Garney north thirty-eight degrees west thirty-seven and 8/10 perches to the place of beginning; containing about five (5) acres and twenty-five (25) perches." Plaintiffs' theory is that because their deed calls for the river as a boundary and because the branch thereof adjoining them has been filled, as above stated, their boundary extends to the west branch of the river, several hundred feet away and including part of the island, to which neither they nor their predecessors ever had any claim of title whatever, and giving them about three times the amount *276
of land called for in their deed. We fully recognize the general rule that monuments on the ground are of the highest value on questions of boundary; but that rule cannot prevail where the monument claimed is so manifestly wrong as to lead to an absurd result (Davis v. Rainsford,
The Susquehanna River is by statute a navigable stream (Act of March 9, 1771, 1 Smith's Laws 324; Act of March 31, 1785, 2 Smith's Laws 312; Act of February 19, 1801, 3 Smith's Laws 464), the bed of which belongs to the Commonwealth: Black et al. v. American I. C.,
Whether plaintiffs' suggestion of ownership by accretion is well founded, we need not decide, for no such claim is averred in their statement. Furthermore, if plaintiffs can hold the bed of the east branch by accretion so can the owners of Fish Island to an equal extent; each would prima facie own to the middle of the old channel and there being no evidence to show defendant excavated beyond that line, or, if it did, to what extent, plaintiffs' case fails.
There is no merit in the contention that the pleadings admit plaintiffs' ownership of the locus in quo. True, the affidavit of defense does not deny ownership of the five acres and twenty-five perches as described, but that, as above stated, does not include the place where the soil was taken, and there is an express denial that any trespass was committed or any soil taken from plaintiffs' *278 land. It is not necessary to consider the alleged trial errors.
The judgment is reversed and is here entered for the defendant non obstante veredicto.