Wainwright v. McCullough

The opinion of the court was delivered, January 3d 1870, by Agnew, J. — This cause comes before us upon a single but important question. The court below ruled the case upon the effect of the low and high water lines as established by commissioners under Act of 16th April 1858, Pamph. L. 326, which excluded the plaintiff from the land described in his writ, and prevented his recovery. In order to arrive at the legal effect of the lines established by the commissioners under that act, we must ascertain its true purpose; and to reach this, it becomes necessary to examine the navigable character of the rivers Allegheny, Monongahela aqd Ohio, and the rights of the riparian proprietors upon their banks. These rivers are among the largest in the state; larger than the Schuylkill and Lehigh, recognised as navigable in the early history of the province, and have been repeatedly held by name to be rivers naturally navigable, and therefore classed with the Delaware and Susquehanna: Carson v. Blazer, 2 Binney 478; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 79, 80; Hunter v. Howard, 10 Id. 244. Many acts have been passed declaring tributaries of these rivers navigable. But an act perhaps most pertinent to this controversy is that of 8th April 1785, 2 Sm. Laws 317, regulating the taking up of lands within the new purchase, of which the 13th section expressly excepts islands in the Ohio, Allegheny and Delaware. The exception bears directly on the claim of title by the plaintiff to the middle of the stream, under the patent of Conrad Winebiddle, dated December 31st 1787. Wainwright’s Island, involved in this controversy, lies on the eastward side of the middle thread of the stream, and separated from the eastern shore by a small branch, so that the plaintiff’s title to the middle of the stream, if allowed, would embrace the island. But the reservation of the islands by the Act of 1785, passed before the inception of the Winebiddle title, recognises the navigable character of the Allegheny, and the title can extend only to ordinary low-water mark on the eastern shore of the river. This being the navigable character of the stream, the rights of the riparian owners are settled by numerous decisions, a few of [74] which may be referred to: Carson v. Blazer, supra; Shrunk v. Schuylkill Nav. Co., supra; Ball v. Slack, 2 Whart. 508; Zimmerman v. Union Canal Co., 1 W. & S. 346; Bailey v. Miltenberger, 7 Casey 37; McKeen v. Delaware Div. Canal Co., 13 Wright 424; Tinicum Fishing Co. v. Carter, 11 P. F. Smith 21, opinion by Sharswood, J., decided last winter at Philadelphia. From these and other cases, it will appear that the absolute title of the riparian proprietor extends to high-water mark only, and that between ordinary high and ordinary low water-mark, his title to the soil is qualified, it being subject to the public rights of navigation over it, and of improvement of the stream as a highway. He cannot occupy to the prejudice of navigation or cause obstructions to be placed upon the shore between these lines, without express authority of the state. The case of Bailey v. Miltenberger, 7 Casey 37, decided in 1856, doubtless had something to do in turning public attention to the shores of the streams surrounding the city of Pittsburg, which led to the passage of the Act of 1858, for the purpose of defining the low and high water-lines. It referred to the mistaken idea entertained by some proprietors of making ground for their mills, by depositing cinders on the shore between low and high water marks. “ The Allegheny and many other navigable rivers” (says the opinion) “ do not, at the time of low water, occupy over one-third of their bed; and it would be most disastrous to allow every owner to fill out his land to low water-mark.” This state of affairs, for these rivers had been seriously encroached upon at and opposite Pittsburg, no doubt led to the Act of 16th April 1858, Pamph. L. 326. It begins by a recital, “Whereas, The lines of lands on and along the shores at the rivers at and near the city of Pittsburg, in the county of Allegheny, have never yet been clearly ascertained, and as it is important to the owners of such lands, the persons navigating the waters of, and the corporations adjacent to, such rivers, and to all parties interested, to know and to have their several rights and privileges in extension and limitation ascertained and defined; therefore,” &c. The first impression arising from this language might seem to be that the law was intended to ascertain and fix these high and low water lines to end all controversies, private as well as public. But a careful consideration of its purpose and provisions shows that it is not applicable to disputed boundaries between private owners, but was intended to regulate the respective rights of the public and the landowners, over whose property the right of navigation extends between high and low water lines. The subject itself is incompatible with a regulation of boundaries between landowners, for the bed of the stream belongs to the state, and necessarily lies between and excludes controversy with an opposite owner, while the act itself refers to no other lines than [75] those of low and high water. It exhibits no purpose to define boundaries between private owners running in toward the stream. The boundary adjusted is therefore necessarily between the state and the riparian owner, for low and high water lines on a navigable river can concern no other. owners. This accords with the parties enumerated in the preamble, to wit, — the owners of the lands, the persons navigating the waters, and the corporations adjacent — that is, the cities and boroughs which regulate the landings and ways to and from the rivers. The second and third parties exercise the rights of the public, and therefore are deeply interested in the establishment of the lines of low and high water, but can have no interest in a dispute about boundaries between individuals. Coming to the duties of the commissioners as set forth in the second section, the law says: — “ Such lines of low and high water to be laid out along said shores aforesaid in such manner and position as will most perfectly secure and perpetuate the navigable channels of said rivers, and best promote the safety and convenience of vessels, rafts, and persons navigating the same, and as will be most suitable in all respects for the general benefit of the public at large.” In the third section they are required not only to hear the parties interested, but to examine experienced hydraulic civil engineers, scientific men and others for the purpose of obtaining accurate information in regard to flowing water in navigable streams, and in regard to the location of the lines aforesaid. Evidently the parties interested are the private owners of the lands extending to the river on the one hand, and the parties navigating and corporations adjacent to the river on the other, while the mere ascertainment of the actual position of a private boundary between owners is inconsistent with the discretion required by the act to be exercised in locating the high and low water lines, so as to preserve the channels of navigation, and promote the safety and convenience of vessels, rafts and persons navigating the same, and for this purpose to call in the aid of scientific men. The effect of the lines as established is thus stated: “ the lines so approved shall for ever after be deemed, adjudged and taken, firm and stable for the purposes aforesaid.” If we seek for the “ aforesaid” purposes, the act discloses none but those relating to the public interest and that of the riparian owner. Then if we advert to the power of the state over navigable streams, as stated in the authorities cited, we discover that it is plenary over the subject of navigation and the improvement of these natural channels of commerce, while the ownership of the riparian proprietor is qualified between the lines of low and high water. The legislature may, therefore, with great propriety define the bounds of high and low water, by means of a suitable commission, for the purpose of regulating the public right, so as not [76] to conflict with private interests, and to prevent private rights from being exercised to the prejudice of' public interests; for example, to prevent the shores from being filled up with great banks of cinders. But if the intent were to regulate disputed boundaries between private owners, what machinery compatible with the lawful determination of private rights has the legislature provided ? No right of appeal is given as in the case of party-walls and partition fences. And the private right would be determined by commissioners in derogation of the right of trial by jury. Now, without determining whether this is constitutional or not, it is a circumstance against the interpretation of the act in that way. In the case of Wells v. Eox, 1 Dali. 308, we have some analogy to the present question. There it was determined that the feigned issue to be ordered on an appeal from the determination of the regulators of party-walls, could determine only whether the regulators had acted correctly or not, but not the title. Eor the latter purpose an ejectment was considered the proper remedy. Eor these reasons we are of opinion that the commission under the Act of 1858 settled no disputes, and ascertained no boundaries, as between private owners. The effect of this conclusion would be to reverse the judgment óf the court below, but for another difficulty which meets the plaintiff below on the very threshold of his case. By his own showing he had no title to the land described in his ejectment. The writ describes the land claimed by the plaintiff as lying between the low-water line of the island as fixed by the commissioners and the top of the island bank. The land thus described, therefore, is a part of the island and lies westward of the channel or branch which runs between it and the main land. The title of the plaintiff given in evidence was under the Winebiddle patent for the main land lying on the eastern bank of this branch. Thus the channel of the branch which belonged to neither the owner of the main land nor the owner of the island, but was the property of the state, intervened between the land owned by the plaintiff and the shore of the island for which he brought his suit, and effectually cuts off his recovery. According to the plaintiff’s own showing, this was no case of mere alluvion, or of a river forsaking its bed from ordinary and natural causes. He gave evidence to show; and indeed proved, by many witnesses, that the old channel ran next to the island, and began to fill up after the defendant had built his dam from the island to Denny’s land on the main shore; that the process of filling was accelerated by the abutment built by the defendant above the dam, and was finally consummated by the bridges built across from the main land to the island. From what has been said of the Allegheny as a river naturally navigable, recognised by statute law and judicial decisions, it is [77] clear that the ownership of its bed between islands and the shore, as well as its main channel, belongs to the state. A wrongful diversion of its waters from its bed does not extinguish the title of the state, or add to that of individuals. This is evident upon principle, and finds an analogy in the decision in Allegheny City v. Reed, 12 Harris 39, holding that after Smoky or Killbuck Island had been swept away by the floods, leaving only a bare sand and gravel bottom, it was the property of the state, and not liable to appropriation as an island. Having shown no title whatever to the land described in the writ of ejectment, the plaintiff’s case is at an end. And for this reason the bills of exception to the rejection of certain evidence relating to acts of the defendant, his conviction and sentence, the former action of trespass, &c., became immaterial. The plaintiff must recover on the strength of his own title alone. The judgment is therefore affirmed.