Tinicum Fishing Co. v. Carter
| Citation | 61 Pa. 21 |
| Court | United States State Supreme Court of Pennsylvania |
| Decision Date | 15 February 1869 |
| Parties | The Tinicum Fishing Co. <I>versus</I> Carter. |
Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius
Error to the Court of Common Pleas of Delaware county: No. 106, to January Term 1869.
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W. Ward and W. McVeagh (with whom was C. Gilpin), for plaintiffs in error.—Title to an easement must be by long, honest, peaceable user and without lawful interruption: 2 Bouvier's L. Dict. 371; Lacy v. Amett, 9 Casey 169. The right of fishing does not justify erections on the shore: 4 Bacon's Abr. 535. As to abandonment and interruption, they cited Whitcomb v. Hoyt, 6 Casey 403; Grant v. Allison, 7 Wright 431; Effinger v. Lewis, 8 Casey 367, s. c. 6 Id. 281. As to justification under the warden's license, Act of Congress, March 2d 1799, § 8, Purd. Dig. 737, pl. 10; Acts of Assembly, March 29th 1803, § 13; February 8th 1804, § 4, 4 Sm. L. 70, 119; February 7th 1818, § 1, 7 Sm. L. 34; March 31st 1864, § 1, Pamph. L. 304; September 20th 1783, 4 Dallas's Acts of Assembly 142; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71.
W. Darlington, for defendant in error.
The opinion of the court was delivered, February 15th 1869, by SHARSWOOD, J.
The plaintiff below claimed to be the owner of twelve-fourteenths of a fishery on the river Delaware. It consisted in the right, during the fishing season, to throw out nets from Hart's wharf to Darby creek, about a mile in extent, and to draw them in on the shore. It is an incorporeal easement on the land of the riparian owner, like a way or common: Hart v. Hill, 1 Whart. 138. As such an easement may arise by express grant, it may possibly be that the presumption of a grant may be made from such long-continued, open, peaceable and adverse enjoyment as will be sufficient in the case of other incorporeal hereditaments. Of this, however, we express no opinion, as there is one circumstance which makes a marked difference between this and other cases. The right only exists during the fishing season, and not at any other period. No such point, however, seems to have been made below, and on the assumption that such a presumption may exist, the plaintiff's case was submitted to the jury, and the verdict was in his favor. We see no error in the record, except in the answers of the court to the 2d and 4th points of the defendants, which form the ground of the 2d assignment of error.
The injury complained of arose from an obstruction caused by a wharf or pier extended and built by the defendants below into the bed of the river, by a license or authority derived from the board of wardens of the port of Philadelphia, under the 13th section of the Act of March 29th 1803, 4 Sm. Laws 70, entitled "An act to establish a board of wardens for the port of Philadelphia, and for the regulation of pilots and pilotage and for other purposes." One great object of this law was, under suitable regulations, to improve the navigation of the river, or, perhaps, rather to make its navigability available for business purposes by the building of wharves and the creation of docks, so that vessels could safely and conveniently load and unload. For this purpose the board is empowered to grant licenses to the owners of land fronting on the river to extend wharves and piers into the bed and channel, so, however, as not to injure the navigation.
The bed and channel of the Delaware river ad medium aquæ filum belong respectively to the states of New Jersey and Pennsylvania. The grants both to the proprietaries of the former and to William Penn, were bounded on each side by the river: Bennett v. Boggs, Baldw. 72. The bed and channel remained in the British crown, but by the revolution and the acknowledgment of the independence of the colonies by the treaty of peace, all the rights and sovereignty of the crown were transferred to and vested in the several states. The Delaware being a navigable co-terminous stream between New Jersey and Pennsylvania, the title of each to the bed extended from their respective shores to the middle of the river, according to the well established principle of universal public law: Vattel, § 266. The title of the riparian owner, derived by grant from the state, extends to low-water mark, not absolutely indeed in tidal streams, but subject to the public right of passage when the tide is high: Ball v. Slack, 2 Whart. 508. He has no right to make any erection, between high and low water, without express authority from the state; nor, of course, beyond low-water mark, into the bed and channel. The state can grant authority to make such erection, either to the riparian owner or to others, so long as the riparian owner is not thereby deprived of access to and use of the river as a public highway, which is implied if not expressed, in the grant to him of land bounded on the stream. Under this first and necessary restriction, the right of the Commonwealth to make any erections in the river for the improvement of its use as a public highway or to promote in any way the business and prosperity of the people, is undoubted and unlimited. Those who have shore or fishery rights took originally and still hold subject to this necessary transcendental power. Nor does the constitutional provision that compensation shall be made to the owner of property taken for public use apply to cases of mere consequential damages: Monongahela Navigation Co. v. Coons, 6 W. & S. 101, and cases which have followed in its wake. As the state, therefore, might itself have erected or caused to be erected the wharf and pier built by the defendants below, without any responsibility to the plaintiff for any consequential damages to his easement, or right of drawing his seine on the shore, so neither is the grantee or licensee of the state liable for such damage. As to him it is damnum absque injuriâ. His right of fishing, just as the right of the riparian owner himself to fish on his own land, was subject to the higher right of the Commonwealth for the public good, and if impaired or destroyed by the power of the sovereign, whether under general or special laws, he has no ground of action. It was an original implied condition of his grant if he or those under whom he claims ever had one, and his title by long use can rise no higher than its presumed source.
It is no objection that the license is obtained on the application of the owner for his private advantage, to increase the value of his land. Such is always the case in regard to such works, whether projected by individuals or incorporated companies. Their object may be profit to themselves, but that of the state is the public good. Thus the powers granted to Josiah White, George F. A. Hauto and Erskine Hazard, to improve the river Lehigh by the Act of March 20th 1818, Pamph. L. 197, or to the Schuylkill Navigation Company, and many other corporations of a similar character, may have been solicited with a view to large gains or dividends, but such motives in the grantees in no way changed the character of the grant from a public to one of a private nature.
A more plausible objection is that the riparian owner, by applying for and obtaining a license to extend a wharf in front of his land, cannot thereby derogate from his own grant before made by him or those under whom he claims. But the wharf thus built is not thereby made part of his domain, does not become his property absolutely; beyond low-water mark the title to the structure followed that of the bed on which it was built and remained in the state, subject to the public right of passage and access to the river, and between high and low water mark; though the title to the soil remains in the riparian owner it is subject to the public right of passage over it as before. Since writing this opinion I have been referred to the 3d section of the Act of April 3d 1868, Pamph. L. 765, which enacts that the wharves thus erected shall be the property of the party licensed to erect them; but that of course does not affect but rather confirms the positions taken. In building the wharf he is in fact the mere agent of the state. There is no privity therefore as to the subject-matter between the owner of the shore and his grantees, or the grantees of those under whom he claims. There is no covenant or duty which he owes to them, not to avail himself of such a privilege or accept such a license from the state. Public policy strongly supports the view we have thus adopted. Perhaps a more striking illustration could not be presented than that which appears on this record. It is a claim of a right to draw the seine for a few weeks in the spring of the year, during the season of shad fishing, over an extent of river front of one mile, the existence of which effectually precludes all improvements. Unless such paramount right exists in the Commonwealth, the extension of the accommodations of the harbor to meet the demands of the foreign and coasting trade, and the erections which the commerce of the whole port imperatively requires, might come to depend upon the will of one man, owning one-fourteenth of such an easement.
Judgment reversed, and a venire facias de novo awarded.
The case was again tried before Butler, P. J., when in addition to the evidence before stated there was the following: — The will of Christopher Taylor, the owner of land held by the defendants, dated in 1748 and proved December 24th of the same year, by which he devised the land to John Taylor and his fishing-place to David Sanderlin, his heirs and assigns: The record of the Orphans' Court on the estate of David Sanderlin, by which it appeared that by proceedings in partition in 1752, the fishing-right was adjudged "to the representatives of Mary Claxton, late wife of James Claxton": Deed, Mary...
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Phillips Petroleum Company v. Mississippi
...Miss. 21, 36 (1857). 12 See, e.g., Bradford v. The Nature Conservancy, 224 Va. 181, 195-198, 294 S.E.2d 866 (1982); Tinicum Fishing Co. v. Carter, 61 Pa. 21, 30-31 (1869); Bickel v. Polk, 5 Del. 325, 326 (1851); Storer v. Freeman, 6 Mass., at 437-439. It is worth noting, however, that even ......