Pursell v. Stover

Mr. Justice Paxson delivered the opinion of the court May 25, 1885. It was not error for the learned judge below to instruct the jury, “that a parol license of a privilege, such as this is claimed to be, obtained upon a verbal and executed contract, and founded upon a sufficient consideration, would be plead-able by this defendant in his defence.” The argument for the plaintiff upon this branch of the case rests mainly upon the ground that the evidence of a parol license was insufficient. There is no assignment of error to this point, and if there had been it would have been of no.avail, as there was ample evidence to go to the jury and to sustain the verdict. The defendant’s mill property and the. plaintiff’s farm were originally one property, and belonged to Newton Treichler. When the mill was sold by the heirs, of whom the plaintiff was one, it was distinctly announced at the sale that the purchaser of the mill should “ have the privilege of tying logs on the farm, with access to it, in order that he might run them down to the creek’s mouth, to haul them out up to the mill.” This announcement was made with the knowledge and consent of the heirs, who were all present at the sale, and resulted in their getting an increased price for the property. It is true, there was a conflict of evidence upon this point, but the jury have found the facts substantially as I have stated them, and that is. the end of the matter. The question whether the tree to which the defendant tied his raft was above or below high water mark was fairly submitted to the jury in a clear and impartial manner by the learned judge, and they have found it was below high water mark. Had it been above, the defendant would have been a trespasser; if below, he would not have been a trespasser, and so the learned judge instructed the jury. The Delaware River is a public highway, and it is settled by abundant authority that the rights of the riparian owner extend to high water mark absolutely, and to low water mark in a qualified sense; that is to say, between high and low water the public have a right of way for the purposes of navigation, which includes all that is reasonably necessary for that purpose: Zug v. Com, 20 P. F. S., 138; Hartley v. Crawford, 32 Id., 486; Wood v. Appal, 13 Id., 210; Stover v. Jack, 10 Id., 340; Kreiter v. Bigler, 5 Out., 94. It follows that when the space between high and low water is actually covered with water, it may be used by the public, because it is a part of the [47] public highway. This is as far as it is necessary to go in this case, as the defendant did not use any portion of the dry land in getting away his logs. They were attached to a truck in the water, and floated down to the mouth of the creek. This was navigation within the meaning of the term as applied to our fresh water rivers, and the business transacted thereon. We find no error in this record. Judgment affirmed.