61 Pa. 21 | Pa. | 1869
The opinion of the court was delivered, February 15th 1869, by
The plaintiff below claimed to be the owner of twelve-fourteenths of a fishery on the river Delaware. It con sisted in the right, during the fishing season, to throw out nets from Hart’s wharf to Darby creek, about a mile in extent, and to draw them in on the shore. It is an incorporeal easement on the land of the riparian owner, like a way or common: Hart v. Hill, 1 Whart. 138. As such an easement may arise by express grant, it may possibly be that the presumption of a grant may be made from such long-continued, open, peaceable and adverse enjoyment as will be sufficient in the case of other incorporeal hereditaments. Of this, however, we express no opinion, as there is one circumstance which makes a marked difference between this and other cases. The right only exists during the fishing season, and not
The injury complained of arose from an obstruction caused by a wharf or pier extended and built by the defendants below into the bed of the river, by a license or authority derived from the board of wardens of the port of Philadelphia, under the 13th section of the Act of March 29th 1803, 4 Sm. Laws 70, entitled “ An act to establish a board of wardens for the port of Philadelphia, and for the regulation of pilots and pilotage and for other purposes.” One great object of this law was, under suitable regulations, to improve the navigation of the river, or, perhaps, rather to make its navigability available for business purposes by the building of wharves and the creation of docks, so that vessels could safely and conveniently load and unload. Eor this purpose the board is empowered to grant licenses to the owners of land fronting on the river to extend wharves and piers into the bed and channel, so, however, as not to injure the navigation.
The bed and channel of the Delaware river ad medium aquce filum belong respectively to the states of New Jersey and Pennsylvania. The grants both to the proprietaries of the former and to William Penn, were bounded on each side by the river : Bennett v. Boggs, Baldw. 72. The bed and channel remained in the British crown, but by the revolution and the acknowledgment of the independence of the colonies by the treaty of peace, all the rights and sovereignty of the crown were transferred to and vested in the several states. The Delaware being a navigable co-terminous stream between New Jersey and Pennsylvania, the title of each to the bed extended from their respective shores to the middle of the river, according to the well established principle of universal public law: Yattel, § 266. The title of the riparian owner, derived by grant from the state, extends to low-water mark, not absolutely indeed in tidal streams, but subject to the public right of passage when the tide is high: Ball v. Slack, 2 Whart. 508. He has no right to make any erection, between high and low water, without express authority from the state; nor, of course, beyond low-water mark, into the bed and channel. ' The state can grant authority to make such erection, either to the riparian owner or to others, so long as the riparian owner is not thereby deprived of access to and use of the river as a public highway, which is implied if not expressed, in the grant to him of land bounded on the stream. Under this first and necessary restriction, the right of the Commonwealth to make any erections in the river for the improvement of its use as a public highway,
It is no objection that the license is obtained on the application of the owner for his private advantage, to increase the value of his land. Such is always the case in regard to such works, whether projected by individuals or incorporated companies. Their object may be profit to themselves, but that of the.state is the public good. Thus the powers granted to Josiah White, George P. A. Hauto and Erskine Hazard, to improve the river Lehigh by the Act of March 20th 1818, Pamph. L. 197, or to the Schuylkill Navigation Company, and many other corporations of a similar character, may have been solicited with a view to large gains or dividends, but such motives in the grantees in no way changed the character of the grant from a public to one of a private nature.
A more plausible objection is that the riparian owner, by applying for and obtaining a license to extend a wharf in front of his land, cannot thereby derogate from his own grant before made by him or those under whom he claims. But the wharf thus built is not thereby made part of his domain, does not become his property absolutely; beyond low-water mark the title to the structure followed that of the bed on which it was built and remained in the state, subject to the public right of passage and access to the river, and between high and low water mark; though the title to the soil remains in the riparian owner it is subject to the public right of passage over it as before. Since writing this opinion I have been referred to the 3d section of the Act of April 3d 1868, Pamph. L. 765, which enacts that the w'harves thus erected shall be the property of the party licensed to erect them; but that of course does not affect,
Judgment reversed, and a venire facias de novo awarded.
The case was again tried before Butler, P. J., when in addition to the evidence before stated there was the following: — The will of Christopher Taylor, the owner of land held by the defendants, dated in 1748 and proved December 24th of the same year, by which he devised the land to John Taylor and his fishing-place to David Sanderlin, his heirs and assigns: The record of the Orphans’ Court on the estate of David Sanderlin, by which it appeared that by proceedings in partition in 1762, the fishing-right was adjudged “ to the representatives of Mary Claxton, late wife of James Claxton”: Deed, Mary Claxton and others, dated February 6th 1806, reciting that the grantors are the heirs of James Claxtón, who was one of the heirs of David Sanderlin, and conveying the fishery beginning at Darby creek and extending as far as fishing requires. Also, evidence that the wall had been erected in 1859 by the defendants before their incorporation, and that 'their property was within the limits of a “meadow company,” who were authorized by their charter to erect walls to protect the meadow bank; that the wall having been built by the defendants, was accepted by the meadow company, who agreed to keep it up: the expense of keeping up the walls is borne by a tax levied on the owners of the banks protected, and the defendants paid tax to the meadow, company for this purpose.
The defendants submitted, amongst others, the following points:—
1. The evidence in this case fails to show any title to the fishing right claimed to be in the plaintiff.
2. Ho title to such fishing right as is set up in this case can be
3. The defendants have a right to maintain a proper wall for the protection of the bank of the stream, and are not responsible for any damages which might result thereto, even if any adverse fishing-right existed as is here claimed.
The court answered these points as follows:—
“ The 1st point is disaffirmed. There is evidence for the consideration of the jury; whether it is sufficient to establish title to the right set up, the jury must determine. We must submit it as we did before — the Supreme Court having decided this to be right.
“ To the 2d point, we answer: The plaintiff certainly has failed to exhibit an express grant, but we cannot charge you that on this account your verdict must be for the defendants. The claim of the plaintiff is to an exclusive right to take fish in the river, opposite the defendants’ land — which .right was originally appertenant to the land — with an easement on the land itself, consisting in the privilege of landing seines, and doing such other things as are usual and necessary in prosecuting the business of fishing. The claim, therefore, is to a fishery — a species of property well known to the common law. And that title to such property may be established by prescription, is, we suppose, too clear for controversy. It is asserted by Bracton, that all incorporeal rights or services may be acquired by acquiescence and use. Indeed, all writers on the common law, as well as the civilians, have recognised the principle, that a right to any incorporeal hereditaments may be acquired by lapse of time. Whatever lies in grant may be prescribed for — prescription being but the evidence of a grant. Every elementary work treating of fisheries, recognises this principle, and asserts, that title to such property may be thus established. * *
“ Is the defendants’ point based upon some supposed peculiarity in the fishery claimed here, which distinguishes it from others ? Nothing of the kind was suggested on the argument. Nor is there room for it in the facts. In every essential particular this fishery is like all others. We are not referring now to the evidence, on which the plaintiff’s claim of title to it rests — the extent and character of the user shown; that is for the jury (as the Supreme Court has already decided); but to the fishing-right itself.existing in the Delaware river at the point in question, formerly annexed to the defendants’ land, recognised and protected in Hart v. Hill, 1 Whart. 138, and to which the plaintiff here asserts ownership. This fishery, we repeat, is in all essential particulars like all others. Is it said, that the right is confined to taking certain kinds of fish ? If so, let it be granted. The same may be said of all, or nearly all,, other fisheries. * * * Is it objected that the use is confined to a*34 limited period, a few months, or even weeks, in the year ? If so, it must be answered, that the same is true of most, if not all other fisheries. Eish can be taken only at certain seasons.
“ Such objections are not, therefore, open to discussion; unless, indeed, we in Pennsylvania assume to be wiser than the fathers of the common law, and propose to review what they have settled.
“ It is said that we have departed from the rules of the common law, in respect to prescriptions for air and light; and that the right to a several fishery, such as is here set up, is similar to such a claim; that the enjoyment or user is not distinctly hostile; that it does not put the owner of the land on his guard, and does not, therefore, give rise to the presumption of a grant. Without stopping to inquire whether we have, or have not, made such departure, it is sufficient that there is not, in our judgment, any similarity between the cases. Where one individual takes the property of another without permission, openly trespasses upon his rights, the act is hostile, and the owner has notice. The right to fish in this water for shad belonged to the owners of the adjacent land. If the plaintiff and those under whom he holds, regularly entered upon the water and took the fish during the period when they are to be found there — the only time at which they could be taken — used and enjoyed the fishery at the only season when it was possible to use and enjoy ¿¿ — occupying the shore for landing nets, &c., the act was, clearly and palpably, hostile; if continued, was notice of a claim of right; and if acquiesced in for twenty-one years, gave rise to the presumption of a grant, precisely as in the ease of any other easement, or incorporeal hereditament; and with no less distinctness and force — indeed, with much greater distinctness and force — than the user which was held to be sufficient in Worrell v. Rhoads, 2 Wh. 427, Jones v. Crow, 8 Casey 398; Trauger v. Sassaman, 2 Harris 514, and Wheatley v. Chrisman, 12 Id. 298. The conduct of the parties under such circumstances — the regular, continuous exercise of the privilege by the one, to the disadvantage of the other, and the acquiescence of the other therein, without interruption for so great a length of time— could be accounted for on no other reasonable hypothesis than the existence of a grant. The use and enjoyment in such a case is in no respect like the enjoyment of air and light from over another’s land. It requires active aggression — the invasion of another’s possessions, and the corporeal taking of his product of the property. We entertain no doubt, therefore, that title to this fishery may be established by prescription. Whether the evidence of user exhibited be sufficient for the purpose, is a different question.
“ But is there not in the case before us a feature that distinguishes it from others of its kind, and comes in aid of the usage, as evidence of a grant ? In the year 1748 Christopher Taylor, a*35 former owner of the defendants’ land, with the fishery here in controversy attached, devised the land to John Taylor, and the fishery to David Sanderlin — the latter in the following words: ‘ I give and devise to David Sanderlin my fishing-place to him his heirs for ever,’ accompanied by language showing its location and character. The records of the Orphans’ Court show that after the death of David Sanderlin, in a proceeding to part and divide his estate, the fishery was adjudged to the heirs of his daughter Mary Claxton. Next we find a deed dated 1805, from Mary Claxton (and others) to Joseph Carter, reciting that the grantors are ‘the heirs of James Claxton who was one of the heirs of David Sanderlin,’ and that as heirs of James Claxton they are ‘ seised in fee of the fishery’ here in question, and from Joseph Carter down, w7e find a continuous chain of conveyance to the plaintiff.
As to the 1st and 2d points cited: 2 Bouv. Law Dict. 371; Burnham v. Webster, 5 Mass. 266; 2 Hilliard on Real Prop. 148, pl. 35; 3 Kent’s Com. 332; Hart v. Hill, 1 Whart. 138; Carson v. Blazer, 2 Binney 475; Monongahela Navigation Company v. Coons, 6 W. & S. 101; Gray v. Bond, 2 Brod. & Bing. 667; 4 Bacon’s Abr. 535; Lacey v. Annett, 9 Casey 169.
“ Now, while this does not show title in the plaintiff by express grant — a complete paper title — (because of the absence of proof that Joseph Carter’s grantors were the descendants of Mary Claxton, the daughter of Sanderlin), it does show that the plaintiff and those under whom he holds, exercised whatever privileges they enjoyed there, under a distinct claim of right, of which the public records were notice, and farther shows the extent and character of the right by reference to the source from which it came. 5 > * * *
The court disaffirmed the defendants’ 3d point.
The verdict was for the plaintiff for $35.
The defendants took a writ of error, and assigned for error the answers to their points.
The opinion of the court was delivered, May 5th 1870, by
Sharswood, J. — Independently of the Acts of Assembly there is no exclusive right of fishing by the riparian proprietor opposite to his shore in any navigable river: Carson v. Blazer, 2 Binn. 475. In England the king has no power, and since Magna
The plaintiff below therefore could not pretend to any title to a several- and exclusive fishery in the river. He did claim a right to draw seines on the soil of the riparian proprietor, not as appertenant to any dominant tenement, but as an incorporeal hereditament and easement in gross vested in him and derived from his ancestors or their grantees in fee simple. He had no dominant tenement in the river to which the shore was servient, as was the case in Gray v. Bond, 2 Brod. & Bing. 667. He did not prescribe in.que estate, in himself and those whose estate he held. He did not claim a mere passage over the land, but a right to take fish there, — a profit a prendre in alieno solo. That a profit a rendre, — as a rent issuing out of land may be granted or prescribed for in gross in fee may be admitted. Whether a profit a prendre, as a common of pasture, a right to dig turves, or. clay, or coal, may be is not so clear. The cases and opinions are discordant. But something more was claimed here than the right to take fish. “ A fishery is in the river,” says Huston, J., “ and is not the space between high and low water mark, though the use of that space may be necessary in the use of it and may be included in the term fishery. The men employed in carrying the rope attached to one end of the seine, may walk on the space between high and low water; and on the same space may place logs or boards or stones to make what is called a pound, in which to throw the fish when taken out of the net, and on that space do all that has been usual and is necessary to the use of a fishery
But if the right claimed here had been a mere ordinary way in gross, the evidence would not have been sufficient to create the presumption of a grant. Had it been set up as appertenant or annexed to a several fishery in the river or to adjoining lands, — ■ had there been a dominant and servient tenement, — if the plaintiff had prescribed in que estate, in him and those whose estate he had, — it might have been otherwise. There is a manifest reason for a distinction in the nature and amount of the evidence required in case of such an easement and one merely in gross. There is a certainty as to the owners and occupiers of the land of which the appertenancy is predicated, which does not exist where the claim is in gross. A fair presumption arises of knowledge that the exercise of it is under a claim of right. This is absolutely required in all cases of prescription: Washburne on Easements 86. The circumstances of the enjoyment must be such that the knowledge and acquiescence of the owner may be presumed: Gray v. Bond, 2 Brod. & Bingh. 667. Lex intendit viainos vicini facta scire. If I should see the owner or occupier of an adjoining lot or farm or his servants constantly crossing my land to the highway, I may with reason, and without being unneighborly, dispute it and insist upon an acknowledgment that it is only permissive so that it may not grow into right. But if a stranger with whom I may well be presumed to be unacquainted or his son or collateral heir after his death, walks over occasionally and especially at long intervals, on what ground is it to be inferred that I know it to be under any pretence of title ? Must a farmer see to it that every one who crosses his field to gun or fish asks his permission ? Could a man establish a presumptive right by showing that regularly every year for twenty-one years and more on the 4th of July he had, in view of the proprietor, walked up to his well or spring and without his permission drawn a bucket of water ? As well might an angler, resorting constantly to some shady spot on the bank of a stream, set up in process of time a presumptive right against the owner of the soil, of passage and of fishery. Many a lover of the sport for more than a quarter of a century has pursued every season one of our mountain brooks for miles of its course for the speckled trout with which they abound.
A man who owns land on the bank of a navigable river in which there is a common right of passage and fishery is not under the necessity of.keeping himself in hot water all his lifetime, by warning off or prosecuting every trespasser who comes there to fish with the rod or the seine, nor can he be expected to recollect and recognise that the same man who is there fishing one year, returns the next, much less be bound to inquire into his family and lineage in order to be sure that his claim of right, even if he knows it to
The cases referred to by the learned judge below were all, except one, cases of a dominant and servient tenement, prescriptions in cque estate. As in Gray v. Bond, 2 Brod. & Bing. 667, where a lord of a manor from time immemorial had been seised of a several fishery in the river Derwent, a river in which the tide ebbed and flowed, and the lessees of the fishery had publicly landed their nets on the shore of it for more than twenty years, and had at various times dressed and improved the landing, it was held to have been properly left to the jury to presume a grant of right of landing to the lessees of the fishery by some owner of the shore. Such, too, were the cases of Worrall v. Rhoads, 2 Whart. 427; Wheatley v. Chrisman, 12 Harris 298; and Jones v. Crow, 8 Casey 398. So were Garrett v. Jackson, 8 Harris 331, and Reimer v. Stuber, Id. 458. The excepted case was Trauger v. Sassaman, 2 Harris 514. It was there held that the undisturbed and exclusive use by two congregations of 'a piece of ground adjoining a church in which they both worshipped, for fastening therein horses and carriages during divine service for above seventy years, will give title thereto by the Statute of Limitations. “ There is not a scintilla of testimony,” said Mr. Justice Coulter, “that anybody else claimed possession in all that lapse of time or had any kind of possession or occupancy or claimed to have it in opposition to them.” That, then, was not the case of a mere easement but an interest in land.
Nor is it an universal principle without exception that whatever incorporeal hereditament may be granted may also be acquired by long and uninterrupted user. On the contrary, it is well settled that a right or privilege claimed by prescription must be such as must reasonably be presumed to have been granted. An owner of land who is compos mentis may grant an easement on or over it, which will in effect destroy the usufruct of his property; but no length of time can raise the presumption of such a grant.
On the whole we are of the opinion that the evidence given in behalf of the plaintiff in the court below, did not present such a case as ought to have been submitted to a jury. The extent of the fishing-place claimed was a mile on the river, a very unusual length, as I have reason to believe, if not entirely unprecedented. There was no fixed point at which it was alleged that the seine was cast in and drawn out. The right claimed was to select any point in this unusually long distance. The whole shore was asserted to be one fishing-place. There was ample space for three or four. It is true that in swift water above tide the sweep of the net is much more rapid and shorter than in tide water where the current is sluggish. The evidence below in regard to .the casting-in and hauling-out place was very vague and indefinite. Eor all that appears, one year it might have been at one place the next at another-, allowing, as is the case in most fisheries, a different place for high and low water. Even if the proof had been distinct and clear that every year for twenty-one consecutive years during the six weeks that the season for shad fishing usually lasts, somebody, lessee or other person under this claim of right, had fished along the shore from Hart’s wharf to the mouth of Darby creek, which, however, was far from being the ease, it would have been insufficient to establish the title set up by the plaintiff. We must dismiss from our consideration the fact that evidence was given of a devise of a fishing-place by a former owner of the shore, under
Judgment reversed, arid a venire facias de novo awarded.