292 F. 822 | 3rd Cir. | 1923
The subject-matter of this action is a tract of land, embraced within the area known as Hog Island, on which were built and now rest the shipways of the shipyard operated under that name by the United States Shipping Board Emergency Fleet Corporation. The question of fact in this action is whether the tract of land was, at one time, an island, and the question of law is, whether (according as that fact is determined) the plaintiff under one act of the Legislature of Pennsylvania, or the defendant under another act, is entitled to acquire the land from the Commonwealth by patent.
The Mifflin Bar is a natural obstruction in the Delaware River extending from the Pennsylvania shore eastwardly across the" channel. Sqme time prior to 1885 the United States, in order to divert the flow of the stream and thereby deepen the channel, built a wooden bulkhead or revetment a short distance into the river at right angles to the shore and thence down stream for about three hundred feet. The bulkhead caught the silt in the flow of the tides and formed a bank as it was intended to do. But this proved inadequate. So, in 1885, the United States built a stone jetty or dyke,- beginning at the. outer end of the bulkhead and extending at low water mark about six thousand feet diagonally down the river, with a gap of four hundred feet in the middle, to deflect the current and deepen and keep open the channel across the Mifflin Bar. Naturally it became known as the Mifflin Bar Dyke. In 1895 the portion above the gapway was raised from low water mark to
Thus there were two applicants for the same land; one for an “island” and the other for filled-in land in the nature of a peninsula. Cross caveats were filed to the opposing applications and the controversy reached the Board of Property of the Commonwealth of Pennsylvania for decision. That body decided that the land in question was not, and had never been, an island and that, in consequence, the application of the American International Corporation should be allowed. The plaintiff, acting under his interpretation of ,thé Act of April 3, 1792, 3 Smith’s Raws, 74, Section 11, 2 Stewart’s'Purdon, 2209 (which provides that when any caveat is determined by the Board of Property, the patent shall be stayed for a term within which the party, against whom the determination of the Board is, may enter his suit at common law), instituted two suits in the nature of actions of ejectment against the defendants in the Court of Common Pleas of Delaware County where the land lay. These suits were decided against him on the familiar ground that in ejectment a plaintiff must recover on the strength of his own title. In this instance the plaintiff, of course, had no title to the land he was seeking. Zeller v. American Interna
The question of the interpretation of the Pennsylvania Act of April 3, 1792, is one primarily for the courts of Pennsylvania. A federal court will not interpret a state statute unless in the trial of a cause it is compelled to do so. Whatever may be the correct interpretation of the Pennsylvania Act of April 3, 1792, under which the suit was brought and of the Pennsylvania Act of January 27, 1806, under which the .application was made, certain it is that these acts deal with islands in navigable streams, and the basic question to be determined under any interpretation of the acts is one of fact, namely, whether the land in dispute is an island. In reviewing the trial of this case, the first question therefore is whether on this issue, where the evidence was conflicting, the charge of the trial judge was right; and second, whether the evidence which was not in dispute sustains the verdict.
Bearing on the first question there is much testimony not in dispute. It shows that after the dyke had been built the water between it and the Hog Island shore was abandoned for navigable purposes ; that scows coming in from below, at the wide open end, dumped their cargoes of mud anywhere in the area; that mud in vast quantities was so deposited through a period of years until at low tide it showed
The plaintiff assigns these instructions as-error, complaining that the learned trial judge mistakenly defined an island by its origin rather than by its nature. True, by all definitions, “an island (in a geographic sense) is a piece of land entirely surrounded by water.” But it does not follow that every piece of land entirely surounded by water is an island in the sense of the statute. For instance, the national government may build a lighthouse on an artificially deposited rock foundation in a navigable river. Land may, and naturally will, accumulate on and about such a structure, yet we doubt if anyone would contend that such land is an island within the meaning of the Act of January 27, 1806, or that the Commonwealth of Pennsylvania would, by virtue of that Act, convey the same to an individual by patent.
The nature of the land enters into what is contemplated by the statute when it speaks of islands, and the origin of the land inevitably has a bearing on its nature. If its origin was artificial and its nature or structure is still the same as its origin, as, for instance, if it was mud dumped by scows and pumped b.y dredges and is still the mud so deposited, it is not, we conceive, the kind of land which the statute describes as an island, though it may be wholly surrounded by water. A body of land thus artificially formed differs from islands formed by natural causes set in motion by artificial barriers, as, for instance, where accretions are formed by a current that has been changed by artificial means. Tatum v. St. Louis, 125 Mo. 647, 28 S. W. 1002; Whyte v. St. Louis, 153 Mo. 80, 54 S. W. 478; Jones v. Soulard, 24 How. 41, 16 L. Ed. 604; County of St. Clair v. Lovingston, 23 Wall. 46, 23 L. Ed. 59. We are of opinion, therefore, that the learned trial judge was right in his instruction as to the kind of land the statute contemplates
The next question submitted was whether the land, even if formed by natural causes, was wholly surrounded by water in the sense of the geographic definition. On this issue the evidence was conflicting, some witnesses saying that at low tide water flowed through the bulkhead embankment deep enough to admit a rowboat and permit egress at the other end, while others said the bulkhead embankment was so far out of the water at low tide as to admit passage afoot to the dyke, thus making the land in question a peninsula instead of an island. This question was properly submitted and is now decided by the verdict of the jury.
Aside from the issue whether the land was an island according as it was or was not formed by natural causes and from the issue whether water did or did not flow through the bulkhead embankment at low tide, thus leaving the land connected with or cut off from the mainland, we are at a loss to see how, in any case, the land falls within the ordinary, and the necessary, geographic definition of land entirely surrounded by water.
From testimony not in dispute it appears that before any island, natural or artificial, was thought of, the national government built the Mifflin Bar Dyke. This, as we have said, is a long narrow structure, wholly of stone. Mud was dumped and pumped behind the dyke and land formed immediately against it on the shoreward side. It assumed the shape of a cleft pear — tapering at the upper end, enlarged in the backwater below the middle, narrow at the lower end and flat along the straight side of the dyke except where for a short distance it passed over it. The dyke is not land, and, of course, it is in no sense a part of the land in question. Accepting for the moment the plaintiff’s contention that water flowed through the bulkhead embankment at low tide, it appears that the tract of land was bounded on its irregular side by water and on its straight side by the Mifflin Bar Dyke. Obviously it was not “entirely surrounded by water.”
’Discussing the matter a step further, if the courses and distances appearing in the plaintiff’s application for a patent to an island go to the westerly side of the dyke, then the land is partially bounded by the dyke and is therefore not wholly surrounded by water. If the courses and distances pass to the easterly side of the dyke and include it, they embrace property of the United States not subject to patent by the Commonwealth of Pennsylvania. If either body of land, the small tract easterly of the dyke or the large tract westerly, is claimed, or, indeed, if both tracts are claimed, then neither is wholly surrounded by water and the land is not an island.
The remaining assignment of error concerns what must have been an inadvertent omission by the court to charge the plaintiff’s point that, “In deciding upon disputed questions of fact you (the jury) must be governed by the weight of the evidence taken in connection with surrounding circumstances and probabilities.” If error, it was not prejudicial and therefore is not reversible, Linn v. United States, 251 Fed. 476, 483, 163 C. C. A. 470; Kalmanson v. United States (C. C. A.) 287
The judgment below is affirmed.