98 Pa. 170 | Pa. | 1881
delivered the opinion of the court,
Prior to 1842 a public road bad been opened on each bank of the river near its margin, and for about ten years a ford had been used by people who chose to cross from one road to the other, at or near the place of the ferry between the land of the defendants to the land of Webb. The road on the east bank of the river was vacated and another opened running in the same direction, about forty rods farther east. • Brown, who then occupied the land now owned by defendants, opened a lane from his barn out to this road, and the public passed over it and through an open field to the ford without hindrance. In 1843 or 1844, Tome, who succeeded Brown in occupancy, desiring to establish a ferry, contracted with Webb for a landing on the west side of the river; Webb gave the right of way for a landing and made and kept up the road from the landing to the public road, thirteen and one-half rods, for which he and his family were to be ferried across free of charge. This arrangement was carried out by Tome and his successors till the ferry was stopped shortly before the prosecution of the defendants. Tome put on the first ferry-boat at that place. In 1849 Tome made the part of the lane from the barn to the river, locating it a few rods south of the former place of travel. The lane varied
At the date of the arrangement between Webb' and Tome respecting the ferry, the public had not acquired any right of way. None of the parties had chartered or prescriptive rights to a ferry there. It may be, as alleged by the learned counsel for the Commonwealth, that every other man “ had just as much right to ferry himself or his squaw across the river at that place as the occupant had, provided he paddled his own canoe but lie had no right to go ashore without permission of the owner or occupant of the land. The right to the bed of a navigable river is presumed to belong to the Commonwealth; but she has no right in the adjoining lands which have been vested in citizens, other than by eminent domain. The owner of the soil has the right of landing on the banks of all navigable rivers. No person can of right land his ferry-boat on another’s gronud, without permission. Nor can the Commonwealth grant such right, except upon compensation being made to the land-owner. Cooper v. Smith, 9 S. & R. 26.
This was a private ferry, the landings and ways made, owned and kept in repair by the occupants of the land. The presumption is that the tenants acted by the consent or procurement of the landlord. No man had a right to go to that ferry except on the implied invitation of its owner. The owner wanted customers — he proposed to carry them across the river for a consideration, and those who went accepted his terms.
It is not claimed by the Commonwealth that the owner of the land dedicated an easement to the public, but she claims that the lane became a highway because of user, on the principle that “ twenty-one years’ adverse use of a way under claim of right is sufficient to authorize the presumption of a grant, and if the use was open and notorious in the ordinary manner, the owner would be presumed to know and acquiesce therein.” This principle has been often repeated in cases where one man claims a way, that is, the right of going over another man’s ground. A user will not give title unless it be adverse and under claim of right, nor when it appears it was not done with the knowledge and acquiescence of the owner, or when the way is used under leave or favor and by permission and at the will of the owner.
In this case the tenants could have used the lane just as they did for travel and teaming, whether it was a private or public road. It was the interest of the owner of the ferry to invite travelers by keeping an open way from the public road to the river and procuring the way from W ebb from the river to the road on the west side. Without such convenience his ferry would have been worthless. The business of the ferry and its receipts were increased by leaving the way open when the river was frozen and when fordable. To have closed the way at such times would have driven the customers to ferries above or below when a ferry would be necessary. Hence, the invitation was held out and permission given. No one was a trespasser, no one was liable to an' action for use of the lane or landings at any season of the year. Had the lane or landings got out of repair and the road commissioners been indicted for neglect of duty in suffering them to become impassable, it is probable that they would have discovered that the lane and landings were private property, and that neither the road commissioners, nor any other person, had ever done an act recognizing them as a public or township road.
The court was not bound to answrer the points presented by counsel for the Commonwealth, but the mere fact of doing so was not error. When affirmed, they became a part of the charge.
Judgment reversed, and it is ordered that the record, together with the opinion of this court setting forth the causes of reversal, be remitted to the court of Quarter Sessions of Warren county, for further proceeding.