Foust v. Dreutlein

• Decision Date: 02 July 1912
• Docket Number: 248
• Citation: 237 Pa. 108,85 A. 68
• Parties: Foust, Appellant, v. Dreutlein
• Court: Pennsylvania Supreme Court

85 A. 68

237 Pa. 108

Foust, Appellant, v. Dreutlein

No. 248

Supreme Court of Pennsylvania

July 2, 1912

Argued April 22, 1912

Appeal, No. 248, Jan. T., 1911, by defendant, from judgment of C.P. Crawford Co., Nov. T., 1908, No. 6, on verdict for defendant in case of Andrew Foust and Alva Foust v. Henry Dreutlein. Affirmed.

Rule to bring ejectment for land in Summit township. Before BOUTON P.J., specially presiding.

In 1833 Cornelius Foust and William Power were adjoining riparian owners on the shore of Conneaut Lake. They each held under patents the dividing line between which was a north and south line which touched the shore of the lake at an acute angle. In 1833 the Canal Commissioners of Pennsylvania dammed the outlet of Conneaut Lake, by this means raising the water about twelve feet and causing an overflow of the lands of both Power and Foust. The land of Foust which was thus submerged amounted to about nine acres. The flowage covered all the property which is now in dispute. The water thus stored was a reservoir for the supply of the Erie division of the Pennsylvania Canal. This was the purpose of its construction and this use was the reason of the construction of the dam.

In course of time, the State sold the canal to a corporation and the property of the corporation was sold at judicial sale to a private purchaser, and the use of the canal as a highway or means of transportation was abandoned. In 1872 the dam across the outlet was broken down and the water receded to what had practically been the former level.

In 1873 Foust and Power established a consentable line which bisected the patent or division line between their properties, as above described in a direction at right angles to the lake. By this arrangement, Foust ceded to Power his title, whatever it was, to a wedgeshaped piece of land lying back from the lake, and Power, in like manner, ceded to Foust a wedge-shaped piece of land abutting on the lake. As a result each tract preserved the same acreage, but the division line ran at right angles instead of obliquely to the lake. There was no dispute as to the consentable line thus established. By various conveyances not necessary to refer to such title as the Commonwealth acquired to the lands in dispute passed to Henry Dreutlein, the petitioner in this proceeding, who became the defendant under the issue framed by the court, and the title of Cornelius Foust passed to the respondents Andrew Foust and Alva Foust, who were made plaintiffs in the issue.

The plaintiffs in the issue framed, claimed title in two ways. In the first place they claimed that the State had not taken a fee in the strip, but only an easement or right of support to the water so long as it might be there. In the second place, the plaintiffs contended that they and their predecessors in title had been in adverse possession of the land in dispute from 1873, when the waters receded.

Upon the first question thus raised the court charged the jury that the State took a fee in the lands in question and that this fee had passed to the defendant. Upon the second question the court first charged the jury that while no one of the acts or series of acts shown by the plaintiff was sufficient to establish title by adverse possession, yet the jury taking all the acts together might find that such possession had been established. The jury having remained out for several hours, the court sent for them and gave binding instructions for the defendant. The plaintiffs appealed.

Error assigned, among others, was in directing a verdict for the defendant.

The assignments of error are overruled and the judgment is affirmed.

Patterson, Sterrett & Acheson and Manley O. Brown, for appellants. -- The Legislature of Pennsylvania and the courts construing and enforcing that legislation, have evidently regarded the title taken for the canal itself and including in the canal such permanent structures as tow-paths, basins and constructed or dug out reservoirs as acquired permanently by the state in fee simple. The other property not actually used for the permanent structure work of the canal and its immediate accessories was regarded as taken only to such extent as the Commonwealth might need it. When the canals as a system of transportation became obsolete and their place was taken by the railroads as a new and more effective means of transportation, in almost every instance the canal was taken over and occupied by some railroad as a more modern and up-to-date means of effecting the same purpose that the canal had originally been created to serve. There was, therefore, very strong equity underlying any mere technical construction of the words of the statute, to hold that the land owner having been paid once for what purported to be the permanent occupation of the soil, should not be paid for a second time, for what was really in effect the same public use. Whatever may be the reasons, however, the court felt satisfied that the title of the State in the canal itself and its immediate works, meaning by that works so constructed, excavated or otherwise dealt with as to be apparently permanent, were taken by the state in fee. As to that which lies off the line of the canal, where under the terms of the act the canal is not constructed through the plaintiff's property, we submit that the question is determined by the general character of the state's occupancy, the purpose apparently fixed upon it and the apparent title for which the damages were assessed.

There is an entire distinction between the use of water-ways which are improved, dammed, cleared out or otherwise altered in connection with the canal and the constructive work of the canal itself. Conneaut Lake Ice Company v. Quigley, 225 Pa. 605.

Frank J. Thomas, of Thomas and Thomas, for appellee. -- It has been uniformly held that where the State has taken land for the purposes of a canal, it acquires a title to the land so used or taken in fee: Commonwealth v. M'Allister, 2 Watts 190; Wyoming Coal & Transportation Co. v. Price, 81 Pa. 156; Robinson v. West Penna. R.R. Co., 72 Pa. 316; Haldeman v. Penna. Central R.R. Co., 50 Pa. 425; Craig v. Allegheny, 53 Pa. 477; Penna. & N.Y. Canal & R.R. Co. v. Billings, 94 Pa. 40; Water Works Co. v. Burkhart, 41 Ind. 364; Blair v. Kiger, 111 Ind. 193 (12 N.E. Repr. 293); Rexford v. Knight, 11 N.Y. 308; State v. Pitts. C.C. & St. L. Ry. Co., 53 Ohio St. 189 (41 N.E. Repr. 205); State v. Snook, 53 Ohio St. 521 (42 N.E. Repr. 544); DeLosier v. Penn. Canal Co., 11 A. Repr. 400.

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