Stover v. Jack

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

— The deed is not before us, but it seems the title of the plaintiff extended to low-water mark, and on this ground he claimed the ownership of the locus in quo of the alleged trespass. The defendant alleged it to be an island surrounded by water except at very low stages. The court held that low water as contradistiguished from high water does not mean the lowest water the stream may exhibit under special and extraordinary circumstances; and that the locus in quo is an island if the water of the river flows around it at its ordinary stage unaffected by floods or drought. This is assigned for error, and it brings up for decision what is meant by low-water mark as a terminus or boundary. I have found no case defining low-water mark, though many refer to it as fixing boundary of the title on navigable streams. Its definition, however, seems to grow out of the principles recognised as establishing the character of these streams, and the rights of riparian owners. The question is one to be decided by the law of this state, and not by that of Great Britain, or even some of the sister states. At the common law those streams only are considered navigable in which the tide ebbs and flows. High or low water mark was therefore easily determined, the ocean maintaining a common level, and the ordinary flow and ebb of tide being regular in their extent, and marking the limits.of high and low water with great uniformity. But in this state its large navigable streams rise and flow hundreds of miles above tide, and are affected by floods and droughts to extremes that surprise the unaccustomed eye, sometimes filling the valleys far beyond the banks of the stream, and at others shrinking within the pebbly bed until a thin thread only marks the flow. The common law being inapplicable to the circumstances, has therefore not been adopted. For this reason neither the control of the waters of navigable rivers, nor of the soil beneath, has been parted with by the Commonwealth; and the far-seeing wisdom of our ancestors has been, in this respect, amply vindicated by the results. This was soon perceived when *343 the state began to improve the navigation of her rivers by artificial means. Had it been otherwise, many noble works designed to enrich and benefit her citizens must have failed in an encounter with private interests. The importance of the rights thus reserved will be seen in the following cases — others might be added: Shrunk v. Schuylkill Nav. Co., 14 S. & R. 79; Commonwealth v. Fisher, 1 Penna. 462; Zimmerman v. Union Canal Co., 1 W. & S. 346 ; McKeen v. Del. Div. Canal Co., 13 Wright 424 . Owing to this right of control and title to the soil itself it has always been held that the grants of the state of lands bordering on navigable streams, even when calling for the river as a boundary, do not extend beyond low-water mark: Hart v. Hill, 1 Whart. 137 ; Ball v. Slack, 2 Whart. 608 ; Lehigh Valley Railroad Co. v. Trone, 4 Casey 206; Jones v. Janney, 8 W. & S. 436 . And even to this extent the grant of title is not absolute, except to high-water mark. As to the intervening space between high and low water mark, the title of the private owner is qualified. The right of passage over it in high water remains in the public. The state may use it for purposes connected with the navigation of the stream without compensation, and may protect it also from an unauthorized use of it even by the owner of the land to low-water mark: Shrunk v. Sch. Nav. Co., Commonwealth v. Fisher, Zimmerman v. Union Canal Co., ubi supra; Bailey v. Miltenberger, 7 Casey 43; Flanagan v. City of Philadelphia, 6 Wright 219 . Another consequence of the Pennsylvania doctrine as to navigable streams is that the islands in them belong to the state, and have always been considered as excepted from the general laws for the sale and settlement of the vacant lands of the Commonwealth. They have always been granted under laws of special application to islands. It is also a well known fact that in the seasons of extreme low water many of the islands of the principal rivers are not entirely surrounded with water, but may be reached from the shore dryshod. All these considerations show that to adopt any other rule than ordinary low-water mark unaffected by drought as the limit of title would carry the rights of riparian owners far beyond boundaries consistent with the interests and policy of the state, and -$yould confer title where heretofore none has been supposed to exist. No one has ever thought that an island cut off from the main land by the stream in ordinary stages of low water could be added to the land of an adjacent proprietor merely because in the very dry season of the year the stream had almost disappeared, and no water flowed over the intervening dry and sandy or pebbly bed. The doctrine that low-water mark is the extremest verge to which a long drought may reduce the stream would lead to such results. Ordinary high water and ordinary low water each has its reasonably well defined marks, so nearly certain that there is not much difficulty in ascertaining it. The *344 ordinary rise and fall of the stream usually finds nearly the same limits. But to bound title by a mart which is set by an extraordinary flood, or an extreme drought, would do injustice and contravene the common understanding of the people. We are of opinion, therefore, that the plaintiff’s title was bounded by ordinary low-water mart, where that was properly submitted to the jury.

Judgment affirmed.