Allegheny City v. Moorehead

Chief Justice Agnew delivered the opinion of the court, The action in this case was an ejectment, and the question was one of title only. If the plaintiffs exhibited a valid title, and the city of Allegheny showed none in itself or its citizens, the municipal power of the city over its highways, or its possession of the rights of the state between the lines of high and low water, were no defence to a recovery. The title to Killbuck or Smoky island was therefore the only question. There was no title to this island in any one before the passage of the Act of 28th April 1873. Killbuck, the original claimant, had none, and his assigns were in no better condition. Unless the state had granted a title to the lot owners, or to the city of Allegheny, there was nothing in her way to prevent the passage of the Act of 1873. The fact that the island had been washed away, prevented a grant of the stony or sandy bottom on which it had rested under the ordinary land laws of the state or usages of the Land Office: Allegheny City v. Reed, 12 Harris 39; Poor et al. v. McClure, 27 P. F. Smith 214. But this was no barrier to an express grant by special law. The Act of 28th of April 1873 was entitled “An Act to perfect the title to Killbuck island, at the head of the Ohio river, north and west of the point in the city of Pittsburg, authorizing and directing the surveyor-general to issue a patent therefor.” The court below construed this act to embrace Killbuck island only, and not all of it, for the judge limited the survey to the natural low-water line of the island on its north side, as it was in 1806; and on the south side of it, to the low-water line fixed by the commissioners under the Act of 1858, which leaves out a part of the south side of the island as it stood in 1806. The verdict was rendered accordingly, limiting the plaintiff’s recovery to the natural low-water line of the island on the north side, that is, on the side next to the main land. If there were any error in this instruction, upon which we give no opinion, it was one of which the city can not complain. The question of discrepancy between the title of the Act of 1873 and its body, is therefore not before us. The Act is good to the extent of the recovery: Dorsey’s Appeal, 22 P. F. Smith 192; Allegheny County Home’s Case, 27 P. F. Smith 77. The plaintiffs having shown a good title to the land embraced in the verdict, what title was shown in the defence ? There is no [138] pretence of an express grant of the island to any one else ; but it is contended that there was a title in the owners of the lots bounded by Bank lane on the main shore opposite the island, which maybe extended to the island ; or, if not in them, there is a title in the city, under the fifth section of the Act of 16th April 1858, authorizing the establishing of high- and low-water lines. There was no title in the owners of the lots bounded by Bank lane. These lots were laid out by the state on her own property (the reserve .tract), and were made to bound on streets and lanes, and on each other, just as the other lots of the town were. Bank lane was laid out upon the north bank of the river following its windings, and its northern line was made the southern boundary of these lots. They did not cross Bank lane to the river. If the doctrine of Paul v. Carver, 2 Casey 222, as to boundaries by the thread of a highway, were applicable to such a case as this, it would extend the title of the lot owners only to the middle of the highway, and not across it. Their interest on the south side was not a title to the soil, but an easement in common with all others in the use of the street, a use necessarily bounded by the water line, for the land highway could extend ho further. At that line the water highway began, and the public right in it was such only as could be claimed by 'all citizens, in the use of the stream for navigation and other purposes. The verdict of the jury having established the natural low-water line of the island on its north side, necessarily established as a fact the existence of a channel between the north side low-water line of the island and the main land opposite to it, upon which Bank lane was laid out. On no principle of law or of legal inference could the title of the lot owners bounded by the north side of Bank lane cross this water channel. It is obvious, therefore, they had no title to oppose to the recovery of the plaintiffs below as bounded by the verdict. It is conceded upon the facts of the case, that it is not one of accretion to the land highway (Bank lane), either by alluvion or by reliction. Bank lane was widened by deposits made by the owners of lots or others, and has been extended still further by the act of the city, and a new name given to it of South avenue, and its width laid out at sixty feet. But these are not to be likened to an accretion by gradual deposits of sand or alluvium, or to an enlargement by a dereliction of the waters .of the stream. They were not such acts as would confer a title where none existed before. On the other hand, the old channel between the former island and the main land has not been obliterated, much of it remaining in the form of a muddy slough or pond; in time of low water, useless as a highway by land or water, and covered with water in ordinary high stages of the river. That the land lying between the natural low-water line of the former island and the main land, or South avenue, belongs to the state, must, therefore, be conceded, [139] unless she has parted with her title by the words or the operation of the Act of the 16th of April 1858, authorizing the establishment of high- and low-water lines. It is not pretended there is any express grant of the land itself lying between these lines, to be' found in the words of the act, unless it can be inferred from the language of section 5, in these words: “ That all riparian right now vested in the state lying between high-water lines and the rivers, within the district aforesaid, shall thenceforth thereafter be vested in the several corporations within whose limits the same now is or hereafter shall be.” This is no grant of the soil — it is not the language the state uses when she grants her lands. Nor can a grant of the land be derived from these words by any proper inference. They apply to all the lands within the high-water lines, and the rivers along the three rivers within the prescribed limits, viz.: from a line crossing the Allegheny river at the northeast line of the borough of Sharpsburgh; from a line crossing the Monongahela river, opposite the mouth of Four Mile run; and from a line crossing the Ohio opposite to the mouth of Wood’s run, and around the shores of all the islands in the rivers aforesaid, and within the limits aforesaid. To assume an intention to grant the land itself between the high-water lines and the rivers within these limits would violate the vested rights of all the owners of the lands bounded by these rivers, within the prescribed limits. Such.clearly was not the intent of the legislature, and we cannot assume one intent for this locality at the island and a different intent for all other places. But the legislature carefully guarded its own meaning by vesting in the several corporations only the riparian rights of the state, viz.: such as pertain to the banks of the rivers. They were limited also to the space between the high-water lines and the rivers. Hence they did not include the channels, beds or bars of the streams. By no possibility, therefore, can the Act of 1858 be construed to be a grant to the city of Allegheny of the bed of the channel between the former island a,nd Bank lane or South avenue, or of the sand or gravel banks left by the washing away of the island. Bank lane, or South avenue, not being increased by natural alluvium, or by the falling away of the waters, its increased width divested the state of no right of soil. Nor can the operation of the Act of 1858 be extended by the act of the commissioners in running out the low-water line of the northern shore of the river to include a part of what was Kill-buck island. It was not the purpose of the commissioners to transfer titles, but to mark the boundaries of riparian rights, so as to make them certain and permanent in their extent. So it was not the intention of the framers of the Act of 1858 to pass titles to lands, or to ascertain boundaries between individuals; but it was their purpose to regulate the right of navigation along the shores of these rivers by establishing high- and low-water lines, which [140] would definitely ascertain and fix the extent to which the right could be exercised; and the extent to which the owners of the land could exercise their own rights under the law of the state. The purpose of the act is so clearly seen upon its face, and is so conclusively shown in the cases of Wainwright v. McCullough, 13 P. F. Smith 66; Zug v. Commonwealth, 20 Id. 138; Poor et al. v. McClure, 27 Id. 214, and in the opinion of Judge White in this case, it cannot admit of further discussion. The extension of the low-water line of the northern shore of the river over a part of the former site of the island, did not pass the title of the state to the intermediate channel, or to the bars and sand or gravel banks within the lines, or to the soil of Bank lane, to any one else, and certainly not to the owners of the lots bounded by the northern line of Bank lane. The state herself being the owner of the land or soil before the establishment of the low-water line of the commissioners, to her alone could any benefit accrue. If it could be conceded for a moment that the act operated on the title at all, she was the owner certainly of the southern half of Bank lane, conceding, for the sake of argument, the doctrines of Paul v. Carver to apply to this case. Being the owner of the soil beneath the southern half of the highway (certainly to this extent), and of the intermediate channel and beds and bars of the river, clearly the same title remained to her after the fixing of the commissioners’ line, and she could grant it away by special act to others, subject only to the public easement in the highway, and to the right of navigation upon the river. There was no question of public easement or right of navigation involved in the trial below, so that the title of the state being vested in the plaintiffs by the special Act of 1873, they were entitled to recover the land included in the verdict, leaving the question of public easement, if any exists, to be determined when it shall arise. Judgment affirmed.