Coovert v. O'Conner

The opinion of the Court was delivered by Sergeant, J. We perceive no error in the principles laid down by the court below, in relation to the lines and boundaries of the patents of the parties, on which the first and second errors are assigned; and, indeed, these errors have been but faintly urged. The main point is as to the direction of the court, stated in the third and fourth errors, respecting the right of the plaintiffs, under their patent, to hold to the centre of the stream. The plaintiffs’ patent is dated the 15th' of December 1786, and, being earlier than the defendants’, has the priority, and may claim to be satisfied for all the vacant ground it calls for, without being curtailed or interfered with by the defendant’s patent, which did not issue until the 17th of January 1787. The description in the plaintiffs’ patent is as follows: “ Beginning at a post and white oak, the numbered corner, and running east seventeen perches to a birch on Big Beaver run; thence down said creek the following courses: south seventy-six degrees east, seventy-five perches, north eighty-three degrees east, forty perches, south sixty-two degrees east, one hundred and twenty-four perches, north fifty-five degrees east, twenty-three perches, to a post; thence south two hundred and seventy-five perches to a white oak,” &c. It is clear, as was the opinion of the court below, that according to the corner called for and the courses and distances stated, the plaintiffs’ northern boundary is the creek, by its courses and meanderings, agreeably to the principles settled by this court in Hart v. Hill, 1 Whart. 131, and Klingensmith v. Grounding, 5 Watts 458. And the question is whether the plaintiffs, by virtue of their boundary of the creek, hold to the centre of [477] the stream of Mahoning creek, (called, in the patent, Big Beaver rltn,) or only to low water mark. The court below charged the jury, that the plaintiffs are not entitled to go to the centre of the creek; that from the birch on the bank, following the meanders of the creek, they have title to low water mark; and that the defendants, under their patent for lot No. 1816, cross the creek, and have title to low water mark. It is to be observed, that the' Mahoning creek here referred to, was not, at the time of these grants, declared a public highway, though it has been since declared so by an act of the legislature. Being then considered as a stream not navigable, it is a settled principle that a grant, from the state, of vacant land, bounded by such a stream and following its courses, passes the right to the centre of the stream. Ail rivers, lakes and streams comprehended within the charter bounds of the province, passed to William Penn in the same manner as the soil. In grants of tracts of vacant lands by him or- his successors, during the proprietary times, and by the commonwealth since, streams not navigable, falling within the lines of a survey, were covered by it and belonged to the owner of the tract, who might afterwards convey the body of the stream to one person and the adjoining land to another. 2 Pet. 64. When streams not navigable formed the boundary of such tract, the grantee acquired a title ad filum aquae. The large rivers and principal'streams, by nature navigable, belonged to the commonwealth, as well where there was no tide, as where the tide ebbed and flowed, contrary to the principles of (he common law, and of some of the states, in which, in all rivers and streams where the tide did not ebb and flow, the grant of land, with a boundary on the stream, extended ad filum aquae. Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Navigation Company, 14 Serg. & Rawle 71. And the very point before us was decided by this court, in the case of Ball v. Slack, 2 Wharton 538, which case was elaborately argued and much considered. There Mr Justice Huston, delivering the opinion of the court, lays it down as a settled principle in Pennsylvania, that when a grant or survey is bounded on a river or creek, it extends to that river or creek, and (except in the case of large navigable streams) extends to the middle of the creek. Although the Mahoning has since, as is stated, been declared a public highway, that does not divest the property previously acquired by a grant from the commonwealth, as between these parties, but leaves to the owner his right to the soil covered with the water, to the middle of the stream, as well as every other right he purchased, not ipconsistent with the public use of the stream as a highway; which is all in the case of streams, not by nature large rivers or principal streams of the commonwealth, that the commonwealth may be considered as tacitly reserving at the time of the [478] grant, whenever the public benefit should hereafter require a legislative declaration to be made. Judgment reversed, and a venire facias de novo awarded.