Ball v. Slack

• Decision Date: 29 April 1837
• Parties: BALL and Others v. SLACK and Others.
• Court: Pennsylvania Supreme Court

2 Whart. 508

30 Am.Dec. 278

BALL and Others v. SLACK and Others.

Supreme Court of Pennsylvania.

April 29, 1837

1. A grant was made by the Proprietary officers in 1690, of three pieces of land on the the river Delaware, one of which was described as follows: " The first piece or parcel beginneth at the mouth of Gunner's Creek, from thence running up the several courses of Delaware river to a corner post of P. N.'s land, thence N. 16° W. by the said N.'s land 110 perches to a corner white oak standing near unto the above said Gunner's Creek, from thence following down the several water courses thereof to the place of beginning; being 54 acres of land, swamp and cripple." The plaintiff claimed under this grant. The defendant held under a deed for a lot adjoining the plaintiff's lot on the south, which was conveyed to him after the date of the plaintiff's warrant, under the following description " A certain lot or piece of land situate in the township, & c. containing in breadth on Queen street 70 feet and extending in depth from said street down to low water-mark of the Delaware river:" The course of Gunner's Creek is such that the point at which it discharges its water into the Delaware, at low water mark, is south of the northern line of the defendant if his lot be continued between parallel lines to low-water mark Held, (1st) that the plaintiff's title began at low-water mark of the river and at the mouth of the creek at low-water mark; so that it was not lawful for the defendant to build a wharf on the northern bank of the creek: (2d.) That the rule would be the same though the mouth had been removed more to the south or north than it originally was; if the change had been gradual and had arisen from natural causes: otherwise if produced by the act of either party.

2. It seems, that the owners of land on the rivers Delaware and Schuylkill have a right to the land between high and low water mark between their boundary lines, subject to the right of the public to pass over it in vessels, when covered with water.

AN action of trespass quare clausum fregerunt was brought in this court, to July term 1829, by William White Ball and others against Daniel Slack, John Morrison and John Sansom.

On the trial which took place at a Court of Nisi Prius, held at Philadelphia on the 21st of November 1832, it appeared that the plaintiffs were the children and heirs at law of one Joseph Ball, by whom the title to the land in question was claimed under the following documents, which were given in evidence, viz.:

A certificate signed by the deputy surveyor general of the province, and certified to be a true copy from the original remaining in the Surveyor General's Office at Philadelphia, on the 31st of January 1764, as follows:

" Pennsylvania.--By virtue of a warrant from the commissioners, dated the 24th of ye eleventh mo. 1690 directed to the surveyor general, I do by authority from him certify into the Secretary's Office that there was surveyed and laid out the same day unto Gunner Rambo, old renter, three several tracts or parcels of land, in the township of Shakamaxunk, and county of Philadelphia. The first piece or parcel beginneth at ye mouth of Gunner's Creek, from thence running up the several courses of Delaware river to a corner post of Peter Nelson's land, thence N 16° W. by the said Nelson's land, 110 perches to a corner white oak standing near unto the above said Gunner's Creek, from thence following down the several water courses thereof to ye place of beginning; being fifty-four acres of land, swamp and cripple. The second piece or parcel beginneth at a corner post of John Tonk's land, standing by the side of a meadow, thence following up the several courses of the said meadow 105 perches to a corner of Peter Nelson's land; thence N. N.W. by the said Nelson's land 177 perches, to a corner tree, standing by the side of a swamp or cripple; thence by the several courses thereof, to a corner tree of Robert Turner's land; thence S. 36° Westwardly by the said Turner's land, 58 perches to a corner post of the aforesaid John Tonk's land; thence S. S.E. by the same 140 perches to the place of beginning, being 103 acres of land. The third piece or parcel (being swamp, meadow and cripple) beginneth at a corner post of Peter and Mickell Nelson's meadow and cripple, thence S. S.E. by ye same, 104 perches to a corner post standing by the river Delaware, thence up the same 41 perches, thence N. N.W. by a line of trees 97 perches, to a corner post standing on the fastland of Peter Nelson's, thence along the several courses of the said fast-land to ye place of beginning, being 26 acres; containing in all the three aforesaid tracts or parcels, 183 acres; which is accordingly entered and recorded in the Surveyor General's Office at Philadelphia."

Endorsed.--" Return for Gunner Rambo's 183 acres of land in Philadelphia county. Pat't dated 24 Feb. 1691-2. Old rent. Gunner Rambo, & c. forever--after leaving a cart way through his said land yt may be most convenient for Rob' Turner, his heirs and assigns to pass and repass from and to ye said Rob' Turner's plantation adjacent to his the said Rob' Turner's meadow which he at present hath or for the future may have right unto--No. 2103.

WILLIAM BRIGDALE, R. S."

An indenture of lease and release, dated the 21st of March 1728 between Anthony Palmer of Shackamaxun in the county of Philadelphia, Gent., and Thomasine his wife, of the one part, and William Ball of the city of Philadelphia, merchant, of the other part, in which after reciting that, " whereas, in and by a certain indenture bearing date the 20th of June 1697, between Gunner Rambo of Shackamaxun aforesaid, old renter, of the one part, and Major George Lillington, Esq. of the island of Barbadoes, planter, of the other part, the said Gunner Rambo for the consideration therein mentioned, did grant, bargain, sell and confirm, unto the said Major George Lillington, all the said Gunner Rambo his three several tracts or parcels of land, swamp and cripples, in Shackamaxun in the county of Philadelphia, by the metes and bounds thereof respectively in the same indenture specified, containing in the whole 183 acres with the appurtenances, and all the estate, right, title, interest, claim and demand, which he, the said Gunner Rambo, had to those 8 acres of land, which he the said Gunner, gave unto Jacob Young, then deceased, and which was then occupied by John Tonk, who married the said Young's pretended widow, to hold to him the said Major George Lillington, his heirs and assigns forever; " and also after reciting divers other mesne conveyances, the said Anthony Palmer and Thomasine, his wife, in consideration of the sum of £ 2400, lawful money of Pennsylvania, to them in hand paid by William Ball, did grant, bargain, sell, alien, enfeoff, release and confirm, unto the said William Ball, his heirs and assigns, " all and singular, the said recited tract or parcel of land, meadow, swamp and cripple, which lying contiguous in one entire tract in Shackamaxun aforesaid, is bounded and limited by the metes and bounds thereof thereinafter specified, and then agreed to be called and always in time to come, known by the name of Hope Farm: beginning at the mouth of Gunner's Creek, and running up the said creek on the several courses thereof 291 perches to a line of Robert Rawle's land, then by the said line S. S.E. 4 perches to a corner post, then by another line of the said Rawle's land N. 60° E. 178 perches and a half to a white oak; then N. 31° E. 14 perches and a half, by another line of the said Rawle's land to a Spanish oak; then by the land of Daniel Worthington on the same course 70 perches to a white oak; then by a certain swamp or cripple belonging to the said Daniel Worthington and the said Robert Rawle, N. 65° E. 24 perches to a gum tree; N. 85° > > E. 12 perches to a maple; S. 74° E. 12 perches to a small saplin; N. 81° E. 7 perches and a half to a small white oak; N. 85° E. 25 perches to a black oak; N. 80° > E. 18 perches to a white oak; N. 63° E. 15 perches to a post; N. 52° > > E. 14 perches to a white oak; N. 49° E. 33 perches to a swamp oak; N. 56° E. 14 perches to a maple; N. 65° E. 19 perches to a white oak; N. 72° E. 12 perches to a white oak; N. 60° E. 35 perches to the line of John Oxley's land; then S. S.E. by the same one 196 perches to a meadow belonging to Robert Rawle aforesaid; thence by the same and the meadow, late of Joseph Pidgeon, W. by S. 40 perches; then W. 62 perches to a gum; then S. 31° E. 26 perches to an ash-tree by a small creek; then down the same on the several courses thereof 247 perches to the river Delaware; then down the said river 572 perches to the place of beginning: containing by computation 676 acres besides the flats thereto belonging: together with the messuage or tenement on the same described great tract, called Hope Farm, aforesaid, erected and being, and together with all and singular the out-houses, barns, stables, buildings, gardens, orchards, meadows, marshes, swamps, cripples, flats, woods, underwood, timber, and trees, ways, waters, water-courses, fishings, fowlings, hawkings, huntings, rights, liberties, profits, privileges, emoluments, advantages, hereditaments and appurtenances whatsoever unto the said last described tract of land (then called and intended to be thereafter known by the name of Hope Farm) belonging, or in any wise appertaining, and the reversions and remainders of the same thereby granted premises, and the rents and profits thereof, and all the estate, right, title, interest, use, possession, property, claim and demand whatsoever of him the said Anthony Palmer and Thomasine, his wife, of, in and to all and singular the premises, and all patents, deeds, writings and...