Lacy v. Green

Mr. Justice Woodward delivered the opinion of the court, This cause has been twice argued. While the amount in controversy in it is insignificant, the question it presents is important, for the right to the possession of the piece of land for the use and occupation of which the plaintiffs have sought to recover is dependent on its determination. It has been considered, therefore, with the care and deliberation demanded by the value of the ultimate interests involved. Previously to the 19th of August 1864, the wife of the defendant below and her sister had been the owners of a tract of land on Tionesta creek, which they conveyed that day to the Tionesta Oil, Lumber and Mining Company. Included in the tract were the Hall & Lacy Mills on the Tionesta, a short distance below the mouth of Big Raccoon creek. The title of the Oil, Lumber and Mining Company subsequently became vested in Joseph Green, the intestate of the plaintiffs below. At the same time the defendant was a part owner of a body of timber lands along Big Raccoon [518] creek, some miles above its junction with the Tionesta. These lands have been designated throughout the record as the Foord & Lacy property. The deed of the 19th of August 1864, contained a stipulation in these words : “ Reserving to the party of the first part, his heirs and assigns, the use of the road and the right of repairing the same, leading down the valley of the Big Raccoon creek, from near Hall & Lacy’s Mills to the upper boundary of lot No. 5509; also, the right of navigating and improving Big Raccoon creek, for the purpose of running lumber and timber from the Eoord & Lacy lands, and of taking timber, excepting pine, along the valley of said run for improving said stream ; also, the right of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Big Raccoon creek, for the purpose of securing and holding lumber and timber taken from the said Foord & Lacy property.” In the winter of 1867 and 1868, a quantity of lumber belonging to the defendant was hauled from the Foord & Lacy Mills and piled on the bank of the Tionesta, and this suit was brought by the plaintiffs to recover the usual compensation for the use of their property for piling and rafting purposes. On the trial, while there was some evidence that the defendant had inquired of the agent of the plaintiffs if there would be a chance of piling lumber on the bank, the legal question presented to the court below involved a construction of the reservation in the deed to the Oil, Lumber and Mining Company, and the decision of that question is the only subject open for review. On the part of the plaintiffs it was insisted that the only rights reserved for the benefit of the owners of the Foord & Lacy property, were to use the pond for the temporary security of rafts to be run down Big Raccoon creek, and to tie those rafts to such trees, stumps or posts as might be found on the bank of the Tionesta. On the part of the defendant it was claimed that the right extended to the use of the land of the plaintiffs for piling the lumber hauled from the Raccoon creek mills and rafting it in the waters of. the pond. The court adopted the view of the plaintiffs, and a verdict was rendered by the jury in their favor. Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract. The established usages of the trade or business to which the subject-matter of the agreement belongs, and the general customs of the community in the conduct of that trade or business, are also to be kept in view. By the terms of the stipulation in question here, [519] the right was reserved “ of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Big Raccoon creek for the purpose of securing and holding lumber and timber taken from the Foord & Lacy property.” It has been argued for the plaintiffs that the word “shore” in this connection could mean nothing other than the water-line of the Tionesta, or; at the utmost, nothing beyond the pebbly beach extending from the high-water line to the low-water line of the creek. It is possible that this conclusion ■would be warranted by the application, in strict analogy, to the waters of inland streams of the technical rules which, in various forms and for various purposes connected with the protection of the public revenue and'the maintenance of rights of sovereignty, have defined the shores of the ocean. But no such technical rules have ever been established in relation to rivers that have no tidal flow. The influence and extent of the ocean tides are permanent and uniform, and the space they cover is subject to natural laws of unvarying application. So definite is the doctrine that uniformity and universality must exist to warrant the unbending application of the abstract rule relied on, that it has been settled by the custom of Scotland that the sea-shore does not extend further than to that point which the sea reaches in common tides, and therefore that sea-greens, which are overflowed only in spring tides, are not inter Regalia, but are private property: 3 Tom. Law Diet. 440. The swelling of the volume of an inland stream is always casual, uncertain in time, purely conjectural in extent, and always the result of unforeseen and unanticipated climatic conditions. In the commonly accepted use of the word, the shore of a river is the land adjacent to the water-line, and is applied in the same general sense in which the same term is popularly applied to the land adjacent to the -water of an inland sea or to one of the great American lakes. The principle laid down by Mr. Justice Coulter, in McCullough v. Wainwright, 2 Harris 171, was a principle applicable to the facts before Him. There a privilege had been granted to erect mills in the Allegheny river, between Wainwright’s island and the east shore, and to use the space between the water and the trees growing along the shore. There was no room for the interjection into that case of a rule of law that should be of pervading application. The “shore” was defined by the contract. It embraced the land bounded by the water-line on one side and the line of the trees on the other. If the limit insisted on by the plaintiffs here were to be rigidly established, the whole of the last clause of the reservation would prove to have been absolutely abortive. Rafts could be run down Raccoon creek only in periods of freshets, and the entire space alleged to constitute the “ shore” would be covered with water. If the stipulation meant only that rafts should be fastened to some tree or some structure within that space, and that they could not be secured, when it should be submerged, against the bank of the [520] stream, the owners of the Eoord & Lacy property would have found safer protection under the usages of the lumber trade than they derived from the provisions of their contract. A fact disclosed on the face of the reservation would seem to be conclusive against the theory of the plaintiffs. The “ right of occupying the pond and shore” was to be exercised along the Tionesta not only above Hall &' Lacy’s Mills, but above “ the mouth of Big Raccoon creek.” The northern bank of that creek at the junction of the two streams is opposite the southern bank of the headrace leading out of the Tionesta to Hall & Lacy’s saw-mill. Above the line connecting these two points there must be some current in the Tionesta, the force of which would depend on the volume of water in the channel. A short distance north of the mouth of Raccoon creek is the southern termination of what the draft shows to be a narrow island, some thirty perches long, and distant from the eastern shore of the Tionesta about one-third of the width of the stream. It is barely conceivable that the owners of the Eoord & Lacy property intended to secure to themselves a right so vain and valueless as that of forcing rafts that should be floated down the Raccoon up the current of the Tionesta in order to lodge them in the narrow channel between the island and the main land.It is among the possibilities of things that some rational object was attainable by a contract so extraordinary as this would be under the construction contended for, but express and unequivocal words -would be required to justify such a construction and establish such a contract. In the concluding clause of the reservation, the word “ occupying” is believed to have expressed the governing idea in the minds of the parties, and to furnish the key by which their intention should be interpreted. The pond and shore were to be occupied “ for the purpose of securing and holding lumber and timber taken from the Eoord & Lacy property.” In the primary and most familiar sense of the word “ occupy,” it is the equivalent of the word “possess.” It implies the conception of permanent tenure for a period of greater or less duration. While the parties had stipulated for a possession of the pond and shore, the decision of the Common Pleas cut the stipulation down to a mere use of the most casual and transient possible kind. Against the theory on which that decision was based were arrayed all the surroundings of the parties, the nature and situation of the property of the grantors in the deed, and the intendment to be made from the general provisions of the reservation. At the time when the contract was made, the strip of land along the Tionesta which is now in dispute was uncleared and waste. Eoord & Lacy were the owners of land along the Big Raccoon creek on which there was standing timber capable of producing from seventy-five to a hundred millions of feet of lumber. A road leading up the creek from its junction with the [521] Tionesta had been partially built, and the right of the grantors to complete it and keep it in repair was retained over the land conveyed. The right was also stipulated for to improve and navigate the creek. This was followed by a reservation of the occupancy of the pond and shore of the Tionesta in order to secure and hold, not the lumber and timber that should be rafted down Raccoon creek, but the lumber and timber that should be “ taken from the Foord & Lacy property.” A contract was not required to entitle the owners of the upper lands to couple together rafts that should be run down Raccoon creek in the pool formed by the Hall & Lacy dam. The privilege of using such a stream for such a purpose has always been exercised without stint or limit. And the privilege of securing rafts to the banks of navigable streams in ordinary exigencies and for reasonable periods has been usually conceded as a common right. Something more, then, was designed than to permit lumber to be run out of Raccoon creek on its way to market. There was but a single purpose to be gained by the agreement, and that, it seems manifest, was to authorize Foord & Lacy to pile their lumber on the bank of the Tionesta, and to raft it in the pond above the Hall & Lacy Mills. Judgment reversed and venire facias de novo awarded. Mercur and Gordon, JJ., dissent.