Pennsylvania Canal Co. v. Harris

• Decision Date: 02 October 1882
• Citation: 101 Pa. 80
• Parties: Pennsylvania Canal Co. <I>versus</I> Harris.
• Court: Pennsylvania Supreme Court

Page 80

101 Pa. 80

Pennsylvania Canal Co. versus Harris.

Supreme Court of Pennsylvania.

May 29, 1882.

October 2, 1882.

May 29th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the court of Common Pleas of Dauphin county: Of May Term 1882, No. 15.

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Hall & Jordan, for the plaintiffs in error.—Most of the difficulties in this case originated in the mistaken idea that the state took only a right of way, instead of a fee simple, in the lands taken for the construction of the Pennsylvania Canal. Under this impression the parties to the Maclay partition had the lands abutting on the canal survey decreed to them to the middle of the canal; and their successors in title continued to convey in like manner for many years afterwards. It was not until the decision of the Supreme Court in Commonwealth v. McAllister (2 Watts 190), decided in 1834, but not reported for several years thereafter, that the right of the state to a fee simple title was established; and for years subsequently the doctrine did not seem to be generally understood by the public. Hence, when the state changed the tow-path of the canal from one bank to the other, or in any other way relinquished the actual possession or occupancy of any part of its lands, before occupied for the purposes of the canal, it was a common thing for the riparian owners to occupy the premises thus relinquished, as the defendant did in this case, under the impression that the rights of the state thereto had ceased to exist. No doubt the canal commissioners and other State officials entertained this erroneous opinion of the law for many years after the McAllister case, and hence the mistakes and litigation of this character. The court, in affirming one of our points, correctly stated the law on this point, but in other parts of the charge so instructed the jury as to allow a verdict for the defendant, as if the point had been negatived. The portions of the charge assigned for error show that the court, having assumed that the defendant had been for a long time in possession of the land in dispute, repeatedly impressed on the jury that such possession gave possessory right against the plaintiffs as vendees claiming under the state canal title. The court further gave prominence to the defendant's theory of the location by reference to the old road as a landmark, and belittled the plaintiffs' evidence of location, as given by numerous surveyors who made examinations of the bed of the canal, in connection with the surveys. The plaintiffs presented evidence which, in several aspects, cumulatively supported their theory of the true location; but the court submitted but one view of the defendant's case, viz.: that one which consisted in running by courses and distances from the Runk corner. The charge as a whole tended to mislead the jury. This was error: Garrett v. Gonter, 6 Wr. 143, 146; Nieman v. Ward, 1 W. & S. 68; Gregg Township v. Jamison, 5 P. F. S. 468; Relf v. Rapp, 3 W & S. 21, 27; Heilbruner v. Wayte, 1 P. F. S. 259; Byles v. Hazlett, 11 W. N. C. 212; Parker v. Donaldson, 6 W. & S. 132; Railroad Co. v. Berry, 18 P. F. S. 272.

George W. Harris and Hamilton Alricks, for the defendant in error.—The question as to the title of the State to lands taken for canal purposes does not arise in this case, but is introduced by plaintiff in error as a make-weight. The court below affirmed the doctrine, as presented in plaintiff's point, that the State took a fee, and did not lose the title by abandonment.

In 1828 the canal was located on the land of William Maclay, when the State took all land necessary and convenient for the canal, basin and embankments, but never claimed the land in contention, because it was outside of the canal and tow-path, as built, and the defendant's witnesses showed that it is outside of the survey returned by the viewers. The public road referred to in the canal damage survey run on the ground, west of the canal, nearly parallel therewith, the entire length of the Maclay farm, and six hundred to eight hundred feet beyond it. No road ever crossed the canal diagonally on the Maclay land, as claimed by plaintiff in error. It was assumed by both parties that the build of the canal at the place in controversy was not changed, and the western line of the canal was straight; wherefore defendant maintained that inasmuch as one of plaintiff's witnesses showed that he found the center line of the canal, thirty-four and a half feet from the western line of the canal at the upper end, it was necessarily the same at the lower end. Both surveys called for the public road, as a monument on the ground; the experts called by the plaintiff disregarded the call, and thus impaired the force of their evidence.

The answers to the points and the charge were more favorable to the plaintiff below than the evidence justified: Little Schuylkill Nav. R. R. & Coal Co. v. French, 2 W. N. C. 718; Kiser v. Vanleer, 2 W. N. C. 561.

The expert witnesses of plaintiff below failed to satisfy the jury that the land was within the canal survey. The expert witnesses of defendant showed that the land in contention was outside of the canal survey and outside the monuments on the ground: Lodge v. Barnett, 10 Wr. 484; Craft v. Yeaney, 16 P. F. Smith, 210.

Mr. Justice MERCUR delivered the opinion of the court, October 2nd 1882.

This action of ejectment is for a piece of land about seventeen hundred feet in length, and varying from twelve to thirty-five feet in width. Both parties claim title under William Maclay. The contention is whether this land was taken and appropriated for permanent use by the commonwealth for canal purposes, under its right of eminent domain? For so much as was thus taken the heirs of Maclay received payment. The title thereto passed to the commonwealth in perpetuity, and from the latter to the plaintiff in error in fee: Commonwealth v. McAllister, 2 Watts 190; Wyoming Transportation Co. v. Price, 31 P. F. Smith 156.

The contention is one of fact. The plaintiff claims the land in dispute is part of a piece of eight acres and seventy two perches taken by the Commonwealth in 1828. It is, then, a question of location. It appears to be conceded by both parties that the northwest corner is pretty well established. A stone has been placed there. It is called the "Runk corner." The dispute is as to the precise location of the western line of the survey. Besides trying to locate by courses and distances, the effort is...