Philadelphia v. Scott

• Decision Date: 08 May 1876
• Citation: Philadelphia v. Scott, 81 Pa. 80, 22 Am.Rep. 738 (Pa. 1876)
• Parties: Philadelphia <I>versus</I> Scott.
• Court: Pennsylvania Supreme Court

Page 80

81 Pa. 80

Philadelphia versus Scott.

Supreme Court of Pennsylvania.

February 8, 1876.

May 8, 1876.

February 8th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the District Court of Philadelphia: Of January Term 1874, No. 235.

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S. S. Hollingsworth and G. W. Biddle, for plaintiff in error.— The legislature, in the exercise of the police power of the state, can require the owners of riparian property to maintain banks at their own expense to prevent the overflow of the river. See Cooley on Constitutional Limitations, chap. 16, p. 572 et seq., 584, 594, 595, and cases cited; License Cases, 5 Howard 632; Respublica v. Duquet, 2 Yeates 493; Commonwealth v. Alger, 7 Cushing 53; Commonwealth v. Tewksbury, 11 Metcalf 55; Vanderbilt v. Adams, 7 Cowen 349; Goddard's case, 16 Pick 564. Owners of riparian property may be compelled to maintain the bank: Cooley on Constitutional Limitations 589; Crowley v. Copley, 2 La. Ann. 329. The legislature must judge when it is necessary to exercise this power: Cooley, p. 538, and cases cited; Vanderbilt v. Adams, 7 Cowen 351. Blowing up of houses to stop a conflagration, the removal of nuisances to prevent a pestilence, the regulation of riparian banks, to avoid the danger of an overflow, the dredging of harbors in the interests of commerce, may be lawfully done by the proper police officers, without the sanction of a decision obtained by "due process of law:" New York v. Lord, 18 Wend. 129; Kennedy v. Board of Health, 2 Barr 366; Easby v. Philadelphia, 17 P. F. Smith 337; Nesbit v. Board of Works, Law Rep. 10 Q. B. 465. The legislature may limit defences to be made to a scire facias sur municipal lien: Kennedy v. Board of Health, supra; Easby v. Philadelphia, supra; Broomall v. City of Chester, 1 Weekly Notes 228; Philadelphia v. Edwards, 28 P. F. Smith 62. A statute may be unconstitutional in part, and the remainder not be void: Cooley on Constitutional Limitations 177 et seq.; Commonwealth v. Pomeroy, 5 Gray 486; Allegheny County Home's Appeal, 27 P. F. Smith 77; Kensington v. The City, 2 Barr 218; Thomas v. Northern Liberties, 1 Harris 117; Reilly v. Philadelphia, 10 P. F. Smith 467.

D. W. Sellers, for defendant in error.—No paper-book for defendant in error was given to the reporter.

Chief Justice AGNEW delivered the opinion of the court, May 8th 1876.

The argument in this case took an extended range of discussion upon the powers of the state, of eminent domain and police. In their leading features, these powers are plainly different, the latter reaching even to destruction of property, as in tearing down a house to prevent the spread of a conflagration, or to removal at the expense of the owner, as in the case of a nuisance tending to breed disease. In the first instance, the community proceeds on the ground of overwhelming calamity; and in the second, because of the fault of the owner of the thing; and in either case compensation is not a condition of the exercise of the power. The same general principles attend its exercise in other directions, and it is generally based upon disaster, fault, or inevitable necessity. On the other hand, the power of eminent domain is conditioned generally upon compensation to the owner, and for the most part is founded, not in calamity or fault, but in public utility. These distinctions clearly mark the cases distant from the border line between the two powers, but in or near to it they begin to fade into each other, and it is difficult to say when compensation becomes a duty and when not. A case of vested ownership on the bank of a great inland fresh-water river, yet where the flux and reflux of the tide is felt, presents something of this difficulty. The well-settled law of this state is, that, while the owner of land on such a river has an absolute title in the soil to the line of ordinary high water, between this line and the ordinary low-water line, his title is qualified by the public right of navigation. This prevents his use of the soil to the prejudice of the public right, and confers on the state the right to improve the intermediate space for public use without compensation: Commonwealth v. Fisher, Richter et al., 1 Penna. Rep. 462, 467; Case of the Philadelphia and Trenton Railroad Co., 6 Whart. 25, 46; McKeen v. Delaware Div. Canal Co., 13 Wright 424, 440.

What then are the relations of the state and the owner of the flats or cripple land lying between high- and low-water lines, and over which the waters of the stream ordinarily come and go? When by the grant of the state the owner has acquired title to such lands in a state of nature, it is clearly qualified, being subject to public use, and the right to improve the shores for useful public purposes; yet no duty lies on the owner to shut out the stream, or by making banks to exclude the natural flow of the water. On the contrary, the owner cannot limit the public right of passage in ordinary high water, by structures or deposits on or near to the low-water line: Wainwright v. McCullough, 13 P. F. Smith 66; and even occupancy by means of wharves is subject to the public right of regulation. That the state can bank out the water is not denied, for this flows from the right to protect the public right of navigation. In this respect the owner's right is subordinate or qualified between the two lines, and he cannot demand compensation, and on the other hand, the state cannot improve at his expense. The influx of the water either from the tide or the natural rise of the river is an existing fact, and comes from no fault on his part, while the state conveyed to him only a qualified title in the soil. In her patent she has burthened her grant with no reservation, except that of a proportion of the minerals. By no contract relation can she impose on him the burthen of the public duty of banking out the stream for public purposes. It is no exercise of the police power of the state on the ground of his fault, whereby the expense can be laid upon him. Nor can the private interests of other owners of like lands be made a ground of banking at his expense. They bought their lands in like condition, subject to the natural flux and reflux of the waters. If after a rising circumstances make their lands better adapted to new purposes by reason of changes in business and population, certainly no duty upon their neighbor arises out of these circumstances to benefit them at his expense: Rutherford's Case, 22 P. F. Smith 82. The interests of the state may make it a public affair, and cause her to exercise her powers for the public good, but this imposes no duty on the owner to pay the expense. He has done nothing to require him to shut out nature, acting in obedience to her own well-known general laws, subject to which all these owners of marsh lands bought. It would be an abuse of terms to call this an exercise of the police power of the state, in the sense of enforcing a remedy against the owner for a nuisance or a public injury.

But we have been referred to the case of Crowley v. Copley, 2 La. Ann. 390, as a precedent. It is not, however, in point. The question of the power of the state to levee the Mississippi at the expense of the owner of the land was not made in that case. The question made by the owner was, whether the law of Louisiana compelling the owners of lands along the Mississippi to bear the expense of levees, to prevent the overflow of the river in high floods, was a tax contrary to the Act of Congress forbidding the imposition of taxes within five years after his purchase of the land from the United States. The court held that the assessment for levees was not a tax within the meaning and intent of the Act of Congress. No question was made whether the state Act of 1842 was constitutional on other grounds. It seems to have been taken for granted that it was. Besides the case is not parallel to this. The overflow of the Mississippi in high floods is attended with great destruction of property far inland, as well as along the river banks, owing to the low grade of the whole country. The case is one of great public calamity, where...