Kreiter v. Bigler

Mr. Justice Gordon delivered the opinion of the court, October 2d 1882. It is an undoubted rule of law that where a survey calls for a river, or other navigable stream of water, even though the marks of the surveyor are found along its banks, nevertheless, in the absence of other controlling circumstances, it shall be considered as extending to low-water mark. In [101] like manner, where the call is for a road, without other description of the line, the survey must be taken to include all the land to the middle of the road. But it will not do to interpret the case of Wood v. Appal, 18 P. F. S. 210, as the plaintiff would have us interpret it. It is true that it is there stated, in general terms, that to start from the bank on a line perpendicular to, or at right angles with, the stream is the proper method of determining the river frontage; but we must take this statement as made with reference exclusively to the character of the survey then before the learned justice who delivered the opinion of the court in that case. The projection, of the side lines of that survey would have run it nearly, or altogether, to an apex before reaching the low-waterline; hence, it was argued, the surveyor, by fixing his marks on the bank, indicated what he intended for the river frontage; and, as a consequence, the front, thus indicated, must be extended directly to low-water mark. But it is obvious that the rule, as above stated, applies only where the lines of the survey either converge or diverge ; for where they are parallel a simple extension of them from the bank to the water would, under ordinary circumstances, secure the proper frontage. And such would seem to be the interpetation given, in Ball v. Slack, 2 Wh. 508, to the act of 1809, regulating riparian rights on the Delaware river. W e think the better statement of the rule to be, that the owner of land on the bank of a navigable stream is entitled to claim to low-water mark, by lines running directly from his extreme bank marks, if any such he has, to the beach, and this without regard to the courses of the side lines of his survey. It is obvious, however, that even this rule cannot be applied to all eases; and we must, after all, have regard to the circumstances of each particular case, rather than to any unbending rule of law. Now, had the present eastern line of the Kreiter lot, which is parallel with Herr street, been the original line between J. M. Wiestling and A. C. Smith, the vendors of the parties in suit, under the rule above stated, the case would be a clear one for the plaintiff; for, in that event, the lines of both lots being parallel, a projection of them to the centre line of the abandoned turnpike would give them exactly the same front on that line as they had on the north border of that road. But such is not the fact. The line between Smith and Wiestling, before the time of Smith’s purchase of the western part of the eastern lot, was diagonal to the present Kreiter line, and perpendicular to the turnpike. So also were all the lines of lots Nos. 148, 149, 150, and the eastern line of No. 151, the former owned by Wiestling, and the latter by Smith ; that is, they were parallel [102] to each other and perpendicular to the road. Here, then, again, by a simple projection of these lines, we give to each lot its full front on the centre of the turnpike road. And why shall not this projection prevail ? The judgment of the court violates all rules ; it neither extends the lines directly to the required boundary, neither does it run them at right angles with the turnpike. It is true that a contrary judgment will interfere with the plaintiff’s front as it now exists; but this results from the act of her vendor, Wiestling, who, before her purchase, so altered the east line of lot No. 118 as to make it parallel with Herr street. "Whistling could alter the lines of his own land to suit himself, but that gave neither to him nor to his vendees any new rights as to the lines or land of his neighbor. As the lines of lots Nos. 119 and 150 originally stood, the triangular strip in controversy was clearly within lot No. 150; but when Smith bought part of lot No. 149, he did not surrender any part of the land which he had previously owned ; and if the land in dispute then belonged to lot No 150, we cannot see why it should not yet belong to it. But again, it is very doubtful whether the rule, as stated in Wood v. Appal, applies at all to the case of a vacated road. The reason for the rule as applicable to navigable streams, is obvious enough; it is, that the land-owner’s front may be maintained upon a natural highway which, in the nature of things, exists always; but when a road is vacated, there is no front to maintain; there is but the reversion of bare land; hence, no reason obtains why the lines designed to embrace it should not be run with their original courses. Perhaps it would be different were the road but partially vacated, so that the lots could still be made to front upon it by an extension of their lines; in such case the rule governing river fronts might possibly apply. But such is not the case in hand ; Front street has not been laid upon the old turnpike; it has not even the same general direction, but crosses the old road diágonally. Besides this, the rights of the parties in suit were fixed long before Front street was thought of; hence, we tmtst regard the vacation of the turnpike as total, and treat this case on that hypothesis. Under this view of the matter in controversy, nothing can be more certain than that the judgment of the court below was wrong. The judgment is now reversed, and it is ordered that judgment be entered on the case stated for the defendant, with costs.