Penny Pot Landing ex rel. Northern Liberties v. City of Philadelphia

The opinion of the court was delivered by Chambers, J. The corporation of the city of Philadelphia are called upon, by writ of quo warranto, issued by this court, to show by what right they exercise the franchise of taking toll and W’harfage at a place called the Penny Pot landing, which is alleged by the relators to be within the district of the Northern Liberties. This landing is a space of ground on the Delaware river, and part of or adjoining Yine street, and which is claimed by the city as within her corporate limits. For the exercise of the franchise claimed by the city of taking toll and wharfage, it is incumbent on the city to show that she had and still possesses this right. The case was tried at Nisi Prius before Justice Coulter, and on the merits, without regard to the pleadings, leaving the single and important question of right to be decided on the law and evidence by the court and jury. Being brought before this court, on a motion for a new trial, the whole case is presented for the revision and judgment of this court on the evidence and the charge of Judge Coulter to the jury. The consideration of this case imposes on the court an inquiry into the early history of the location and plan of the city of Philadelphia by its eminent founder. For its elucidation, the court is' indebted to the research and ability of the able counsel who have prepared the case , and argued it for the parties. Penny Pot landing and that of the Blue Anchor were places of notoriety and importance when Philadelphia was first made a town and afterwards a city ; the one being a landing at the foot of Yine street, and the other at the foot of Dock street, being for a long time the only places of landing on the Delaware for those w’ho carried on trade, commerce, or intercourse with the city on the Delaware side. The high bank from Front street to the river presented, between Yine — 87 — and Dock streets, an obstacle to intercourse with the city, except at these openings and landings, which were deemed indispensable for access to the city, and were used as such. The importance of these landings, at that early day, would not be overlooked by the proprietary, the officers of his government, or the inhabitants or authorities of the city. On the part of the city it is alleged that her right to the occupancy of this piece of land, called Penny Pot landing, as a public street and landing, is by grant from the proprietary, and confirmed by his official agents to the inhabitants of the town of Philadelphia, within a few years after laying out the town, and before a charter had been granted them for a city. It is also alleged that the right of the city to the use and control of this piece of ground, either as a part of Vine street, or as Penny Pot landing, was further confirmed by the charter to the city from the proprietary. The control of the city is derived first by grant of this piece of ground known as the Penny Pot landing, by its being made a part of Vine street, by the proprietary, not as a transfer to the city of the absolute property in the soil, but as an appropriation and dedication of it for the public use as part of a street. Vine street, as first laid out in the town plan of Philadelphia by William Penn, was but fifty feet wide, extending from the Delaware to the Schuylkill; but as he was the absolute owner of the landing and lands adjacent, not appropriated, it was competent to him to grant them and dispose of them, or any franchises and easements appurtenant- to them, to whom he pleased, and on such terms and with such privileges and uses as he might deem proper. In considering the evidence of 'a grant to the city,' in this case of the public franchise and use claimed, reference must be had to the usages of the proprietary government, at that early period of its history, in the form and method of granting and appropriating the lands of the proprietary in his province. Whatever system of conveyance and grant was established, it was brief and informal, and was so much in the breast and will of the proprietary, that forms of grant and agreement were variable, according to the pleasure of the proprietary, the change of officers, or the'expediency of the times. • It is in evidence from the books of the land-office, that by virtue of a warrant from the commissioners of property, dated 1st of 6th month 1689, there was surveyed, the 8th of same month, unto James West, shipwright, a certain lot of ground on the proprietary’s lot, at the north side of Philadelphia, containing in breadth 60 feet, and in length 150 feet, bounded to the southward by a vacant lot, eastward by the Delaware river, northward by a vacant lot, and to the westward by a street. This would appear to be the first appropriation by the proprietary at the north side of Philadelphia, and was either adjacent to — 88 — or in the vicinity of Penny Pot landing, being on Front street and the Delaware river. On the same day there was made for James West another survey of a lot at the same place, on the same warrant, being 150 feet by 160, bounded on the Delaware and a street. This last survey appears to have been experimental and not adopted as final; por from the minutes of the commissioners of property, it appears that “at a meeting of the commissioners, 8th of 1st month 1689 — 90, present, Markham, Turner, Groodson, and Carpenter, James West requesting 40 feet of the bank where the Penny Pot house stands, and in addition to 60 feet formerly laid out to him for a conveniency to build ships and vessels upon, for having bought the Penny Pot house of the widow, his request was granted, he complying with his promise, viz. to make a convenient slip with timber, and fill it up with earth, and pitch it with stones against the street, which is to be left 100 feet wide.” In conformity to this agreement, and under a warrant dated 22d of 1st month, 1690, there was surveyed and laid' out on the 24th of the same month, unto James West, a lot of ground in the bank, of the proprietary’s land, at the north-east part of Philadelphia, which said lot likewise included a lot of 60 feet, granted unto him by the commissioners, the 1st of 6th month 1Ó89, containing the whole breadth, one hundred feet, and in length two hundred and fifty feet, bounded northward by William Rakestraw’s lot, eastward with the river Delaware, of the said extent of 250 feet, southward with Yine street, and to the westward with Front street; which survey is entered in the surveyor-general’s office. On the day of this last survey, there were survéyed by'the survpyor-general, eighteen other lots for other persons named, adjoining in the same vicinity on Front and Vine streets ; a plot of which combined, representing their respective locations, and the streets on which they are bounded, is returned into the secretary’s office on the next day, and there recorded and preserved. In that plot of the proprietary’s appropriations or grants of lots, is the lot of James West, with its boundaries, as agreed by the commissioners, bounding it on “ Vine street,120-feet broad,” from Front street to the Delaware, and describing Vine street as 60 feet broad west of Front street. And on the 19th of 6th month 1690, a patent issued from the commissioners of property, to James West, for his enlarged lot as described. It is to be observed in the agreement between West and the commissioners of property, his lot was to include part of the Penny Pot house landing, and to'bound on the street which was to be left 100 feet wide. The survey of the proprietary officer, with the plot returned of it and the other lots, describe that part of Yine street adjacent to West’s lot, as 120 feet broad. Here are four official acts of the proper officers of the proprietary government for the granting, bounding, and recording appro — 89 — priations of land, in conformity to the then existing regulations and usages of the land-office, and are preserved among the early records of that office, furnishing the highest evidence that Vine street was enlarged to 100 feet or more in width, from Front street to the Delaware; and that as so enlarged, it was, by grant from the proprietary, dedicated to the public use as a street, which signifies, in a town or city, a public highway. No particular form or ceremony is necessary in the dedication of land to public use. Cincinnati v. White, 6 Peters’s Rep. 440. But in this dedication of the addition to Vine street by the proprietary, there is all the formality of grant which then characterized grants of land under his provincial government. This enlargement of Vine street consisted of a part of the Penny Pot landing, adjacent to West’s lot, and to which the widened street was appurtenant as a boundary; and as a public highway, it enured not only to his use and the other lot-holders in the vicinity, but to the use of the public. William Penn; having by his agents and accredited officers, granted this addition to Vine street for the public use and accommodation, in 1690, could not revoke that grant by any subsequent act or deed. In the case of Cincinnati v. White, 6 Peters’s Rep. 431, in affirmance of this principle, it was ruled “that after land is set apart .for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such, dedication.” The rights of the adjacent and neighbouring lot-holders, as well as the public, to Vine street so enlarged, were vested rights, of which they could not be divested by William Penn; and if it were not competent to Penn, the proprietor and founder, to divest or impair his grant and dedication of this extended street, it cannot-with any propriety he supposed that this could be done many years after his death, by acts on the part of some of the subordinate officers of the proprietary government. It is due to the high character and eminent integrity of William Penn, to say that, during his life, no act was done by him having any tendency to impair the. grant and dedication of this street. It was consistent with the use of Vine street as a public highway, that the landing at the end of that widened street might be used by the public as a landing, under the government of the city authorities. Every subsequent act by William Penn in relation to it was in confirmation of the previous grant. The Assembly of the province, in their address to the governor, presented on the 20th of 7th month 1701, in the tenth item says: “ That the streets of the town be regulated and bounded, and that the ends of the streets on Delaware and Schuylkill be unlimited and left free to be extended on the river, as the inhabitants shall see meet; and that — 90 — public landing-places at the Blue Anchor and Penny Pot house be confirmed free to the inhabitants of this town, not infringing any man’s property:” 1 Votes As. 145; 2 Col. Rec. 35. To this, the governor and proprietor replied, on the 29th of same month: “ About the ends of streets, and other public landing-places of this town, I am willing to grant the ends of the streets, where and -when improved, and the other according to your request:” 1 Votes As. 148; 2 Col. Rec. 39. The charter of William Penn for the city of Philadelphia, dated 25th October, 1701, erects the said town and borough of Philadelphia into a city, “ which said city shall extend the limits and bounds as it is laid out between the Delaware and Schuylkill.” “ And I do for me, my heirs and assigns, grant and ordain that the streets of the said city shall for ever continue as they are now laid out and regulated, and that the end of each street extending into the river Delaware shall be and continue free for the use and service of said city and the inhabitants thereof, who may improve the same for the best advantage of the city, and build wharves so far out into the river there, as the mayor, aldermen, and common council, hereinafter mentioned, shall see meet. “ And I do also ordain, that the landing-places now and heretofore used at Penny Pot house and Blue Anchor, saving to all persons their just and legal rights and property in the land, so to-be left open, as also the swamp between Budd’s buildings and the Society hill, shall be left open and common for the use and service of the said city, and all others, with liberty to dig docks, and make harbors for ships and vessels, in all or any part of said swamp.” The addition to the width of Yine street, as stated, was made by the proprietary in 1690, and then dedicated to the public use as a street; and in 1701, by the charter from him to the city, it is ordained that the streets of said city shall for ever continue as they are now laid out and regulated. The acts of the proprietary, in his reply to the address of the Assembly, or in the charter granted to the city, were not in any way in derogation of his previous grants and concessions, but in confirmation of the same. The ends of the streets extending into the river Delaware were to be and continue free; and the landing-places before used at the Penny Pot house and the Blue Anchor, saving to persons their just rights, &c., were to be left open and common for the use of said city and all others. The control of the franchises for the public accommodation in the use of the streets and landings was necessarily and explicitly conferred on the authorities of the city. If the city had not ample authority and control over Yine street as widened under the appropriation and dedication made as' a grant from the proprietary, which the court is of opinion it had, it would be entitled to the control of the Penny Pot house landing under the concession of the proprietary to the Assembly, and the — 91 — express grant in the charter of 1701 to the city of that landing, which was to be left open and common for the use and-service of said city and others, with liberty to dig docks, &c. The occupancy of this landing and the control of the same by the city have been consistent with these grants as far back as the memory of witnesses will serve, and who testify that Yine street was of the width of 50 feet above Front street, and 107 from Front street to the Delaware. Subsequent legislation has been in confirmation of the authority and right of the city. By act of 30th May 1780, (1 Smith 506,) the wardens of the city were authorized to let or demise the market-houses, ferries, wharves, and public landing-places; the moneys arising thereupon to be applied to the uses specified in the act of 9th March 1771, (1 Smith 370,) to wit, for watching and lighting the city, &c. By the 40th section of act of 11th March 1789, to incorporate the city of Philadelphia, (2 Smith 462,) all the rights of the late corporation in all wharves, landings, and landing-places, &c. were vested in the corporation thereby created. By act of 2d April 1790, (2 Smith 526,) all the powers of the wardens of the city under former laws were vested in the present corporation. What is alleged and proved by the relators to impair this right? It is said that, in the opinion of surveyors, map-makers, and historians, Yine street was of one uniform breadth of 50 feet, from the Delaware to the Schuylkill. The most ancient map of Holmes, made in 1683, when the town of Philadelphia was laid out, does so represent it, and rightly at that time; but it is to be observed that this map was made some seven years before the addition to Yine street was made by the proprietary. As it is conceded that Yine street was originally laid out only of the width of 50 feet, Holmes’s map is not to be relied on as affording any evidence of any addition to this street as made in 1690. The subsequent maps and plots are but outlines to represent the ground boundaries and configuration of the city, without investigating with legal accuracy the rights of individuals or the public in every part, or defining them with a precision to be relied on. Whether these acts were those of the officers of the proprietary government or other citizens in making a map of the city, they could not divest the right of the city and public to streets and franchises before granted by the proprietary. The city of Philadelphia was not a partydo the formation of these surveys and maps, and the city as well as the public and the lot-owners interested in the enlargement of Yine street, or in the landing on the river, extended for that width, were not to be prejudiced by them. Maps, ancient surveys, as well as reputation, are evidence to elucidate and ascertain boundary, as well as fix monuments; but in this case they are offered to impeach official grants on public record, and when on the landing control — 92 — has been exercised and tolls taken by the city authorities from time immemorial, in conformity to the official grants ; against such evidence, such plots or surveys ought to have no weight. The research of the relators’ counsel has brought to our notice from the land office, a draft entitled “bank above the town,” on which it is entered: James West, in the year 1690, had a patent for a lot 100 feet front, 260 long; bound northward by William Rakestraw, and southward by Vine street, both which cannot be true. There is no date to this entry, and it is presumed that it was made about 1747, the time of the resurvey in evidence, made for Charles West, son of James, and is to be accounted for by the omission to examine minutely the proceedings had in relation to the survey and return of James West’s lot in 1689-90. The parties connected with that survey may be supposed to have been deceased, and the facts to explain it were only to be had by diligent search into the transaction, as it had been acted more than fifty years before. The survey and plot on file, and on record, exhibiting the lots and the names of the proprietors, their boundaries, and Vine street as widened in 1690, if seen as they ought to have been, would have relieved those investigating the matter of all doubt and uncertainty. The landing at Penny Pot house was no doubt of more extensive accommodation to the public and its importance in higher estimation to the city whilst it was one of the two great landings and avenues for the trade and intercourse wiRi the growing city. But after Front street was opened, and wharves made at the foot of Market and other streets on the DelaAvare, and access had to the city from new landings and streets opened, the importance of Penny Pot landing may have declined, and the occasion to use Yine street as a highway would not probably then require more than the fifty feet in width, which would accommodate the public, without subjecting the city to the expense of paving and improving the extended way, which the public accommodation and necessities did not then require. But the extended growth and importance of this city and the Northern Liberties will make the act of the proprietary in Avidening Yine street from Front street to the river ever to be commended for its propriety, convenience, and utility. It has been remarked in the argument, that while the proprietary granted that the ends of the streets extending into the river Delaware should be and continue free for the use and service of the said city and the inhabitants thereof, it was provided and granted that the Penny Pot and Blue Anchor landings (saving to all persons their just and legal rights and property in the land so to be left open, as also the SAvamp between Budd’s buildings and Society hill) shall be left open and common for the use and service of said city, and all others, with liberty to dig docks and make harbors for ships and vessels in all or any part of the said swamp. We do not — 93 — consider the variation in the tenure as expressed by the terms used in the two cases as creating any difference of use. The use dedicated and transferred is public and indefinite, to be used and enjoyed according to its nature and circumstances, so as to afford to the public the accommodation intended. The dedication of a highway, street, or landing will be intended to be for the public, and not for part of the public in exclusion of any other part. The city authorities must regulate the use of the street and landing for the accommodation of the inhabitants and strangers having occasion to use the privileges conferred. The erection and repair of wharves and landings and the improvement of the street would require, on the part of the city, expenditures of money, and it is just and proper that they should exact reasonable tolls or charges from those who found it convenient or advantageous to use the said wharves and landings. Without such expenditures, improvement, and repairs, they would be inconvenient, if not useless; and that the franchises should be enjoyed by the public, without annoyance or abuse, it is necessary that there should be established regulations for the government of the use. As it is the interest and policy of the city authorities to facilitate trade and commerce with the city, it is not to be supposed that they would be unreasonable in their exactions, or in their regulations for the common enjoyment of the public. If there were any such abuse of authority, which is not to be presumed, it might be a proper matter for legislative cognizance, reform, or control. Yine street, from Front street to the Delaware, has a width from its south line to the boundary of what was James West’s lot, and which is exceeding 100 feet. The variance in the reported width of that street, from Front street to the Delaware, at different early times, might have arisen from inaccuracy in commencing for mensuration at some distant point, or from inequalities of surface of the ground, which may have been variable at different periods. In 1690, the surveyor-general described it then as 120 feet wide, and now it ,is represented as 107 feet. There is nothing to impair the rights of the city in the proceedings of the surveyors and regulators appointed under the act of 1795 to survey and regulate the streets laid out in the township of the Northern Liberties, beginning at the northern bounds of the city of Philadelphia on the river Delaware. If the northern boundary of the city was on the north side of Yine street 107 feet wide, the regulators were without authority when they attempted to do any act south of it, and neither by their opinion nor acts could take away any of the rights of the city to its franchises on Yine street and the landing on the same; and under the act which provided for paving the streets, there was no act done by the authority of the Northern Liberties in the way of paving and — 94 — curbing the part of the street now claimed on the part of the Northern Liberties, that could prejudice the rights of the city. The right of the city to the control and regulation of Vine street and the landing on the Delaware at the foot of it, is, in the opinion of this court, derived from grants by the proprietary, as recited and commented on, and who was the absolute owner thereof. It is not a right depending on presumption or prescription. Possession and use alone would not give the city a title to the franchise claimed against the public. “It is well settled that lapse of time furnishes no defence to an encroachment on a public right.” “If no grant be shown, presumption will not be made to support a nuisance by encroachment on a public right Commonwealth v. Alburger, 1 Whar. 486-8; and in the Commonwealth v. McDonald, 16 Ser. & R. 395, Justice Duncan says that “public rights cannot be destroyed by long-continued encroachment;” and in Barter v. Commonwealth, 3 Pa. Rep. 253, Gibson, O. J., said, “ that the government of every incorporated town has a right to improve the streets for public purposes, is a proposition about which there can he little dispute,” and “ no private occupancy, for" whatever time, and whether adverse or by permission, can vest a title inconsistent with it.” “The case of Commonwealth v. McDonald, by which this salutary principle has been established, is founded in the purest reason and fortified by the strongest authorities.” And in accordance with this principle is the case of Rung v. Shoneberger, 2 Watts 23. This opinion has been extended by the review of the many documents given in evidence and the points presented by the counsel; and in the opinion of the court, the learned judge before whom the cause was tried was warranted by the law and evidence in saying to the jury “ that the city of Philadelphia had shown she had a lawful right to take toll and control this landingand as it is the opinion of the court that the mayor, aldermen, and citizens of Philadelphia, in behalf of the city, have shown by grant from the proprietary the right to exercise the franchise of taking toll and wharfage for the use of the piece of land formerly called Penny Pot landing, it is unnecessary to examine the claim of the Northern Liberties to the same franchise, as, if there is an existing right in the city of Philadelphia, which is prior, paramount, and exclusive, there can be no valid right in the incorporated district of the Northern Liberties. The whole case being by the court considered, the court overrule the motion for a new trial, being satisfied with the finding of the jury under Justice Coulter, and direct judgment to be entered for the Mayor, Aldermen, and Citizens of Philadelphia.