Conneaut Lake Ice Company v. Quigley

• Citation: 225 Pa. 605,74 A. 648
• Decision Date: 11 October 1909
• Docket Number: 143
• Parties: Conneaut Lake Ice Company, Appellant, v. Quigley
• Court: United States State Supreme Court of Pennsylvania

74 A. 648

225 Pa. 605

Conneaut Lake Ice Company, Appellant, v. Quigley

No. 143

Supreme Court of Pennsylvania

October 11, 1909

Argued April 27, 1909

Appeal, No. 143, Jan. T., 1909, by plaintiff, from decree of C.P. Crawford Co., Sept. T., 1906, No. 1, dismissing bill in equity in case of Conneaut Lake Ice Company v. Amos C Quigley et al. Affirmed.

Bill in equity for an injunction. Before CRISWELL, P.J., specially presiding.

The opinion of the Supreme Court states the case.

Errors assigned (1-56) sufficiently appear by the opinion of the Supreme Court.

The assignments of error are dismissed, and the decree of the court below is affirmed. The costs of this appeal to be borne by the appellant.

Frank J. Thomas and Q. A. Gordon, with them Thomas Roddy, E. S Templeton and John O. McClintock, for appellant. -- Conneaut Lake is not a public navigable body of water in law: Hardin v. Jordan, 140 U.S. 371; Bolsa Land Co. v. Burdick, 12 L.R.A. (N.S.) 275; Jones v. Pettibone, 2 Wis. 308; Wis. River Imp. Co. v. Lyons, 30 Wis. 61; Neaderhouse v. State, 28 Ind. 257; Chisholm v. Caines, 67 Fed. Repr. 285; Smoulter v. Boyd, 209 Pa. 146; Manigault v. Ward & Co., 123 Fed. Repr. 707; Fulmer v. Williams, 122 Pa. 191; Barclay R.R. & Coal Co. v. Ingham, 36 Pa. 194; Gouverneur v. Ice Co., 134 N.Y. 355 (31 N.E. Repr. 865); Coovert v. O'Conner, 8 Watts, 470; Farnham on Water & Water Courses, secs. 854, 861.

Conneaut Lake, whether originally or at the time of the taking by the commonwealth a public navigable body of water or not, when taken and enlarged by the commonwealth for a reservoir for canal purposes, and thereafter conveyed by act of assembly to the Erie Canal Company for a valuable consideration, passed in fee to said Erie Canal Company and its successors: Wyoming Coal Co. v. Price, 81 Pa. 156; Com. v. M'Allister, 2 Watts, 190; Haldeman v. Penna. R.R. Co., 50 Pa. 425; Rexford v. Knight, 11 N.Y. 308; Water Works Co. v. Burkhart, 41 Ind. 364; Blair v. Kiger, 111 Ind. 193 (12 N.E. Repr. 293); Malone v. Toledo, 34 Ohio St. 541; State v. Ry. Co., 53 Ohio St. 189 (41 N.E. Repr. 205); State v. Snook, 53 Ohio St. 521 (42 N.E. Repr. 544); Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Pittsburg v. Epping-Carpenter Co., 194 Pa. 318; Phila. & Trenton R.R. Co.'s Case, 6 Whart. 25; Com. v. Alger, 61 Mass. 53; People v. N.Y. & S.I.F. Co., 68 N.Y. 71; Langdon v. Mayor of New York, 93 N.Y. 129; De Losier v. Canal Co., 11 A. Repr. 400.

The owner of the land bordering upon the lake had the right, upon leasing same, to restrict the use of same or of the lake in connection therewith, and under the leases in question, the tenants have not the right to use the leased premises for the purpose of launching boats, or of embarking and landing for the purpose of navigating the lake, and equity will enjoin from so doing.

A court of equity has jurisdiction: Whitney v. Union Ry. Co., 77 Mass. 359; Rogers v. Danforth, 9 N.J. Eq. 289; Lembeck v. Nye, 24 N.E. Repr. 686; Meyer v. Phillips, 97 N.Y. 485; Livingston v. Ogden, 4 Johns. Ch. (N.Y.) 48; Provident, etc., Steamboat Co. v. City of Fall River, 67 N.E. Repr. 647; Cobb v. Mass. Chemical Co., 60 N.E. Repr. 790; Murphey v. Lincoln, 22 A. Repr. 418; City of Peoria v. Johnston, 56 Ill. 45; Sunderland v. Whitesides, 7 Phila. 335; Com. v. R.R. Co., 24 Pa. 159; Bussier v. Weekey, 4 Pa. Superior Ct. 69; Stewart's App., 56 Pa. 413; Scheetz's App., 35 Pa. 88; Walters v. McElroy, 151 Pa. 549.

George F. Davenport, with him Otto A. Stolz, for appellees. -- Conneaut Lake is a public body of water: Flanagan v. Phila., 42 Pa. 219.

Navigation in fact is the test in this state: Fulmer v. Williams, 122 Pa. 191; Flanagan v. Phila., 42 Pa. 219; The Daniel Ball, 77 U.S. 557; Packer v. Bird, 137 U.S. 661 (11 S.Ct. Repr. 210); Bridge Co. v. Kirk, 46 Pa. 112; Poor v. McClure, 77 Pa. 214; Coovert v. O'Conner, 8 Watts, 470.

The rule in Wisconsin and Minnesota as to the ownership of small lakes is the same: Pewaukee v. Savoy, 103 Wis. 271 (79 N.W. 436); Lamprey v. State, 52 Minn. 181 (53 N.W. 1139).

The state has power to improve, regulate and control navigable waters, but not to destroy their navigability: Flanagan v. Phila., 42 Pa. 219; Reighard v. Flinn, 189 Pa. 355; Smith v. Rochester, 92 N.Y. 463; Com. v. Fisher, 1 P. & W. 462.

Public grants are to be strictly construed: Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Martin v. Waddell, 41 U.S. 367; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548 (18 N.E. Repr. 465); Johnson v. Crow, 87 Pa. 184; Charles River Bridge Co. v. Warren Bridge Co., 36 U.S. 420.

The title to the bed of the lake is still an open question: Wyoming Coal Co. v. Price, 81 Pa. 156.

The appellees are not barred by the covenants in the lease from running their boat, to and from the lot leased: Grubb v. Grubb, 101 Pa. 11; Klaer v. Ridgway, 86 Pa. 529.

Thomas Patterson, of Patterson, Sterrett & Acheson, for appellees, cited: Kennedy v. McCloskey, 170 Pa. 354; Harrison v. Nixon, 34 U.S. 483; Boone v. Chiles, 35 U.S. 177; Chisholm v. Caines, 67 Fed. Repr. 285; Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387 (13 S.Ct. Repr. 110); Reighard v. Flinn, 189 Pa. 355; Flanagan v. Phila., 42 Pa. 219.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE POTTER:

The Conneaut Lake Ice Company, a corporation, filed this bill in equity in the court of common pleas of Crawford county against Amos C. Quigley and H. E. Rhoads, in which it averred that it was the owner, and in possession of Conneaut Lake, the lands thereunder, and the waters thereof, and of the lands immediately adjoining and surrounding the lake; that as a consequence it had the exclusive right to control and navigate the waters of the lake, and to control the lands bordering upon it; that the defendants, who as tenants under it, held certain lands abutting on the lake, had, in violation of the plaintiff's rights, as well as of the terms of their leases, launched and placed upon the lake, a certain boat intended to be used for the transportation of passengers and freight upon the lake for hire. The plaintiff prayed for an injunction to restrain the defendants from continuing to use such boat, or any other boat, for the navigation of the lake, and from placing any other boat on its waters.

The defendants, by their answer, claimed that the lake was part of the public waters of the commonwealth, and therefore they were entitled to use and navigate its waters, and denied that they had invaded any of the plaintiff's rights or violated the terms of the leases under which they occupied lands adjoining the lake.

The court below granted a preliminary injunction, but upon final hearing (CRISWELL, P.J., specially presiding) dismissed the bill at plaintiff's cost. Plaintiff has appealed from the decree dismissing the bill. Counsel for appellants have filed fifty-six assignments of error, of which only one is in compliance with the rules of this court. Assignments one to five, inclusive, are not printed, being admittedly bad, as not based on any exception. Other assignments are to the admission of evidence, offered by defendants, but the evidence is not set out as required by rule 31. In other assignments to various findings of fact and law, exceptions were filed, but the dismissal of the exceptions is not assigned for error. Assignments twenty-four to forty-six, inclusive, are to answers for requests submitted by plaintiff for findings of law and fact, to which no exceptions were seemingly taken. Other assignments complain of the failure of the trial judge to find certain facts, as to which no specific requests for findings were made by plaintiff. Assignment fifty-four alleges as error, the decree dismissing plaintiff's exceptions, and confirming and making absolute the decree nisi, but neither the exceptions nor the decree nisi, are set out in this or any other assignment. Assignment fifty-five complains generally of the dismissal of the bill at plaintiff's costs, but does not set out the decree. Assignment fifty-six assigns for error the final decree dismissing plaintiff's bill. This assignment is in proper form, and raises all the questions which need to be considered.

The Act of March 21, 1798, 3 Sm. L. 320, declared certain streams and waters, including "Little Coniate Creek from the mouth up to the inlet of Little Coniate Lake" to be public streams and highways for the passage of boats and rafts. The court below has found as a fact that the creek and lake referred to in this act, under the name of "Coniate" are the same as those now known under the name of "Conneaut." There is ample evidence to sustain this finding, and it will not be disturbed. So that without regard to the question of navigability in fact, we have the legislative declaration that in the view of the law Conneaut Lake is to be considered a public body of water, subject to the right of navigation by the public. When a lake is so small as to be properly regarded as a mere pond, there is no sufficient reason for the public to assert any right in it. But that is not the case here. The navigability of Conneaut Lake as a fact, must under the testimony be conceded. The court below has found from undisputed evidence, that during the period since 1903, the travel upon the lake during the summer, and especially during the excursion season has been large, being estimated as high as 150,000 passengers in a season, and during the summer of 1908, the navigation company operated eight boats, some of them large enough to accommodate 250 passengers. The navigability of the lake is expressly recognized in the agreement between the plaintiff and the navigation company, in which a monopoly of the navigation of the lake is...