Penny Pot Landing; or, Com. ex rel. nor. Liberties v. City of Philadelphia

• Citation: 16 Pa. 79
• Parties: Penny Pot Landing; or, Com'th ex rel. Northern Liberties versus The City of Philadelphia.
• Decision Date: 01 January 1855
• Court: United States State Supreme Court of Pennsylvania

16 Pa. 79

Penny Pot Landing; or, Com'th ex rel. Northern Liberties versus The City of Philadelphia.

Supreme Court of Pennsylvania.

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Brightly, for relator.—The City having in their pleadings relied on a title by prescription, could not set up another on the trial: Chester Case 548, 410-11; 1 Burr. 294: 4 Burr. 2143; Cowp. 505-7; Will. Corp. 2, sec. 486; 15 Johns. 358; 1 Pike 513; 3 Pike 570; Moore 297; 1 Green. Ev. sec. 58. No length of time will raise a presumption of right in favor of encroachments on the public; in such case the presumption is the contrary way: Math. Pr. Ev. 15; 1 Green. Ev. sec. 10; 4 Burr. 2164; 1 Whar. 469, 486; Chester Case 24, 44, 64; 2 Watts 23; 16 Ser. & R. 395; 3 Penn. R. 259; 7 Pa. L. J. 86; 1 Jones 447. And where admitted, the presumption only arises where the use or occupation would otherwise be unlawful: Math. Pr. Ev. 14, 15. Until the incorporation of the local authorities, the control of the city was not adverse: 1 Whar. 485; 6 Peters 439; 10 Peters 662, 712; 1 Jones 447. But there was abundant evidence to rebut any such presumption: 16 Ser. & R. 395; 1 W. C. C. 214. William Penn made a clear distinction between the rights of the city corporation to the ends of the streets and to the public landings. The ends of the streets are to continue free, for the use and service of the said city and inhabitants thereof; whilst the public landings are to be left open and common for the use and service of the said city and all others. Unless, then, this landing be a portion of the end of Vine street, and consequently within the corporate limits of the city, the respondents were not entitled to a verdict. Neither the charter of 1701 nor the act of 1789 mention the boundaries of the city: it is the town and borough of Philadelphia which is incorporated, as it is now laid out between the Delaware and Schuylkill. It is admitted in respondent's answer, that William Penn, in 1683, laid out the town of Philadelphia, and established Vine street, of the width of 50 feet, as its northern boundary; the landing was clearly excluded from this limit. In 1684, a committee was appointed to draw up a charter for Philadelphia to be made a borough, consisting of a mayor and six aldermen, 1 Col. Rec. 64; and although this borough charter is not now extant, there can be no doubt of its former existence, since, in 1691, we find Humphrey Murrey acting as mayor of Philadelphia, and recognised as such by the governor and council, and also by the commissioners of property. We also find by the document establishing this fact, that there were then aldermen of Philadelphia, as provided in the proposed charter: 1 Watson's Annals 336. And in the charter of 1701, William Penn recites that he had erected the said town into a borough, and did thereby erect the said town and borough into a city: 1 Dal. Laws, ap. 11. This is presumptive proof of the former existence of a borough charter: 1 Spencer 61. It was then the ancient borough, incorporated in 1684, which was erected into a city in 1701, and with the same boundaries, excluding the locus in quo; Reed's Explanation 13; 1 Whar. 484. And if Vine street was widened in 1690, it by no means follows that the additional width was thereby thrown within the limits of the borough. It is true, the ancient plans, surveys, and documents given in evidence, cannot divest the right of the city; but they were strong evidence to rebut the presumption of a grant: 1 Green. Ev. sec. 129, 135, 138, 139, 145; 11 Ser. & R. 149; 6 Bin. 59; 2 Ser. & R. 50; 1 Peters C. C. 496; 2 Litt. 159; 3 Rand. 44. It is said the right to exact tolls may, on evidence of long and undisputed enjoyment, be presumed to have originated in a grant: Calthrop 122; but the antiquity of the usage must be very great, as, in the only cases on the subject, the tolls claimed had been received for centuries: Math. Pr. Ev. 303; 1 Show. 47; Cowp. 102; 6 Cowen 706; 10 Shep. 339. The whole difficulty, however, in this case was satisfactorily explained by the resurvey of West's lot, in 1747, when it was found to be 57 feet north of Vine street. The documents fixing the southern boundary of the Northern Liberties are also full of persuasive evidence to rebut all idea of this landing being within the city limits: 2 Smith 106 ; Serg. Lana Laws 196, 224; Gordon's Hist. 78; 1 Whar. 412. The original survey of the Liberty lands has been lost for many years, 4 Yeates 144; the courses and distances, however, are given in Reed's Exp. 15. Out of these Liberty lands the manor of Springettsbury was laid out: 1 W. C. C. 262, the record of which is also lost; but on the 12th of 8th month 1703, a warrant was issued to resurvey the manor, and a copy of an ancient plan, believed to be a return to this warrant, was given in evidence, on which the southern boundary of the manor is laid down as a direct line from river to river. The counsel also cited Minutes of Common Council, 17, 28, 498; 2 Col. Rec. 542, 563, 566, 587, 588; 3 Col. Rec. 618; 1 Smith 412; id. 318; 2 Smith 49; 3 Smith 224; 7 Smith 61; id. 177; 6 Ser. & R. 522; 3 Smith 274; 1 Whar. 46. He also contended, that the presumption of a grant arising from long-continued, uninterrupted enjoyment, is a presumption of fact to be drawn by the jury, Math. Pr. Ev. 3, 4; 1 Green. Ev. sec. 44-48, and not as here, by the court.

Olmsted, for the respondents.—The respondents did not endeavour to make out a title by prescription: they proved a grant of the right to tolls for the use of the landing. The respondents claim the right by the grant, in the charter of 1701, of the ends of the streets on the river Delaware, and of Penny Pot landing, by that name; that is to say, they claim to take such toll because the locus in quo is either the end of Vine street, or because it is Penny Pot landing. The application of James West, in 1689, for an addition to his lot on the river Delaware, was granted by the commissioners of property, on his engagement to make a convenient slip, with timber, and fill it up with earth, and pitch it with stones against the street, "which is to be left 100 feet wide." Here is the act of the proprietary officers to secure this landing for the use of the public; it is thrown into the street, which is increased in width by this addition to 100 feet. The return of survey bounds the lot on the south by Vine street; the plan shows it so bounded, and also the patent. Then follows the address of the inhabitants of Philadelphia, through the intervention of the Assembly, that the ends of the streets be unlimited, and be left free to be extended in the river, and that the public landing-places at the Blue Anchor and Penny Pot house be confirmed free to the inhabitants. To which the proprietary answered: "About the ends of the streets and other public landings of this town, I am willing to grant the ends of the streets, when and where improved, and the other according to your request." 1 Votes of Assembly, 145, 148. Accordingly, a charter was granted to the city on the 25th October 1701, wherein it is ordained that the said city "shall extend the limits and bounds as it is laid out between the Delaware and Schuylkill," and that the "end of each street extending into the river Delaware shall be and continue free for the use and service of the said city and the inhabitants thereof." The streets, as there laid out and regulated, were to continue for ever; one of these was Vine street, as increased in width by the addition of Penny Pot landing. The fact of the former existence of a borough charter may be questioned: it is not now extant, and if it did exist, there is no reason to conclude that only those streets which were in existence during the time of the borough were to be provided for in the city charter.

But admitting that Penny Pot landing was not incorporated into Vine street at the date of the charter, but existed distinct from the street, as a public landing, then it was granted to the corporation as Penny Pot landing by the charter: 1 Whar. 479, 484. The dedication of the street once made was irrevocable: 1 Whar. 469. No act of the proprietary or his officers could change it. The opinions of annalists and surveyors cannot counteract the positive act of the proprietary and his officers; but they made no effort to ascertain the true width of Vine street, nor was it necessary for them to do so. The respondents are not concluded by the acts of the regulators of the Northern Liberties, under the act of 1795. Their authority only extended to the regulation of the streets laid out in the Northern Liberties, beginning at the northern bounds of the city of Philadelphia, on the river Delaware: 3 Smith 224. The Penny Pot landing was not acquired by the application of public moneys, as was the case of the other landings granted to the corporation of the Northern Liberties by their charter, (1 Whar. 46;) it was the private property of the proprietary and by him granted to the respondents for the use of the public.

The opinion of the court was delivered by CHAMBERS, J.

The corporation of the city of Philadelphia are called upon, by writ of quo warranto, issued by this court, to show by what right they exercise the franchise of taking toll and wharfage at a place called the Penny Pot landing, which is alleged by the relators to be within the district of the Northern Liberties. This landing is a space of ground on the Delaware river, and part of or adjoining Vine street, and which is claimed by the city as within her corporate limits. For the exercise of the franchise claimed by the city of taking toll and wharfage, it is incumbent on the city to show that she had and still possesses this right.

The case was tried at Nisi Prius before Justice COULTER, and on the merits, without regard to the pleadings, leaving the single and important question of right to be decided on the law and evidence by the court and...