Wood v. Appal , 63 Pa. 210 ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

Ever since the case of Carson v. Blaser, 2 Binney 475, decided in 1810, it has been held in many cases that a survey, returned as bounded by a large navigable river, vests in the owner the right of soil to ordinary low-water mark of the stream, subject to the public right of passage for navigation, fishing, &c., in the stream, between ordinary high and ordinary low water mark. Variety in the language of the return matters little, so that the intention to make the stream a boundary appears sufficiently in the description and diagram. In determining this both are taken together. The variety of expression in the decided cases is very great. In Carson v. Blaser, supra, the description in the patent (taken, of course, from the return of survey) was “ beginning at a birch by the river;” thence running outward and returning “to a red-oak by the same river, and thence by the same, the several courses thereof, to the beginning.”

In Hart v. Hill, 1 Wharton 124, the counsel of defendant contended (p. 131) that the deeds of the plaintiff were bounded by “ stakes and stones on the banks of the river,” but Kennedy, J., interposed, saying: “ This is universal in the country, surveyors never go into the water for the purpose.” And Huston, J., said: “ It has often been decided that the owners of land hold to low-water mark, notwithstanding such boundaries.” They were both eminent as land lawyers.

Klingensmith v. Ground, 5 Watts 458, decided in 1836, was the case of a private deed describing the land as beginning at a sugar tree on the bank of the river and running up the same north 59 degrees south 59 perches to a stump near the creek, thence up the creek north 14J perches to a stone. The court below thought that the word “near” indicated an intention not to make the creek a boundary, but this court held the creek to be the boundary.

In Ball v. Stark, decided in 1837, 2 Wharton 508, the description in the proprietary’s grant began at the “ mouth of Gunner’s creek,” thence running up the several courses of the Delaware and returning “ to a corner white-oak standing near unto the above said Gunner’s creek, from thence following down the several watercourses thereof to the place of beginning.” It was held this description led into the mouth of Gunner’s creek at its junction with the Delaware at low water, notwithstanding at high tide running a mile up Gunner’s creek the plaintiff would have been cut off from the creek at its mouth.

The patent in Coovert v. O’Connor, 8 Watts 470, described the land next to Mahoning creek, a branch of the Big Beaver, thus— “ to a birch on Big Beaver, thence down the said creek the following courses: south 76 degrees east 75 perches, north 83 degrees east 40 perches, south 62 degrees east 125 perches, north 55 degrees east 23 perches, to a post.” In this case the hirch tree stood on the hank of the stream, and the survey ran from it by courses and distances actually run along the bank, yet it was held that the description “ down the said creek” carried the title ad tfilum aquce.

The principle which thus abandons the courses and distances for the stream itself is thus stated by Gibson, C. J., in Cox v. Couch, 8 Barr 154: — “ By reason of imperfection of instruments as well as inequalities of surface, and carelessness of assistants, extreme accuracy is not to be attained by the compass and chain ; while, on the other hand, calls for natural objects, or what is much the same, known and established lines of contiguous tracts, admit of perfect certainty. Where a vendor, therefore, conveys, by established land-marks, the subject of the grant will neither overrun nor fall short of them. They form the true boundary, and the courses and distances serve but to point to the place.”

In the analogous case of Paul v. Carver, 2 Casey 223, the boundary was described as “ thence southeasterly along the northerly side of the said Tidmarsh street,” and it was held to carry the title to the centre of the street. The same was decided in Cox v. Freedly, 9 Casey 124, upon a deed calling for stakes on Egypt and Race streets, “ thence along the north-east side of Egypt,”. and “ along the south-east side of Race,” although in the same deed another boundary on an alley called for a stake in the middle of the alley, “thence along the middle of said alley.” Woodward, J., there remarks that in surveys bounded on streams and streets the marks must necessarily stand on the margin.

There are cases supposed to be exceptions to the rule I have stated, but they are not so. The principal of these are Kelly v. Graham, 9 Watts 116, and Wharton v. Garvin, 10 Casey 340. The report of the former omits the return of survey, but Justice Kennedy says in his opinion: — “ The survey, as returned here by the deputy surveyor, as also all the other evidence on the subject, shows most unequivocally that the river is not made a boundary in it, and indeed that it could not have been so intended. The draft of the survey returned is made out according to the courses and distances actually run and marked upon the ground, and not made to call for the river on any side oP> point whatever. At some distance from the survey, however, the Allegheny river is laid down upon a straight line without any regard to its meanders, as if it were intended by the artist merely to show that the land included within the survey lay near to the river.” The case is'therefore not an exception to the rule, but is distinguished from it by the fact that the river was not made or intended to be, a boundary. The real difficulty in that case was that the patent by mistake called for the river, but the court corrected the mistake by a reference to the survey itself, which negatived the call.

Wharton v. Garvin stands in exactly the same attitude. The north and south lines found upon the ground did not reach the river by 40 perches on the north and 19 perches on the south. The diagram exhibited no protraction to the river, and the closing line was represented as a straight line of 238 perches long, leaving a large vacancy between it and the river. The return did not call for the river as a boundary, but it was represented at some distance off with the words written within representation, “ up Allegheny.” The opinion was written by Justice Thompson, the present Chief Justice, who was careful to distinguish the case upon its facts. He remarked that generally a survey is to be carried to its calls unless there are actual lines on the ground excluding them; that a call to stand as a boundary must be indicated to he such with sufficient certainty to show that it was so intended. The representation of an object at a distance from a closing line without any words indicative of an intent to make it a boundary would hardly be sufficient to constitute it such. The line plotted at a distance would have little weight, he remarked, if the river had been made the call, and as it is not so made in terms and appears to be excluded by the draft, it is a circumstance of controlling influence, as held in Kelly v. Graham, supra. Thus it was the intent of the surveyor (appearing clearly in the return of survey) to bound the survey on the 238 perch line, and not on the river, which controlled the decision. Instead of impugning the general doctrine the case supports it, and the judge remarked: “We are predisposed to presume the existence of an intent to bound surveys on navigable waters by the stream, not only on account of the supposed advantage arising from such location, but because it is in accordance with practice.”

Some inference has probably been drawn from that case, as an exception, from the fact that the closing line (238 perches) did not appear to be marked on the ground. But this had no real influence on the decision, for the river being out of the question as a boundary not called for at all, the closing line must necessarily be run from the corners standing 40 and 19 perches from the river, on the principle stated by Justice Thompson in Hunt v. McFarland, 2 Wright 69.

The governing principle of the rule before stated is found also in Walker v. Smith, 2 Barr 43, and Thomas v. Mowrer, 3 Harris 139, qualifying the generality of the opinion in Martz v. Hartley, 4 Watts 262, and holding that where the lines of adjacent surveys are both found run and actually marked on the ground, they overcome the call for each other or even calls for a natural or other boundary. An old case strongly illustrating the principle is Mageehan v. Adams, 2 Binney 109, where the survey and patent called for a black-oak on the state line, thence by the same, 130 perches to a post; yet evidence was received to show that the black-oak and line actually stood 30 perches from the line of the state.

The result of the cases is, that when a return of survey calls for a stream as its boundary, or to run by, along, up or down it; the title will run to the stream, and the marking of trees on the bank or margin of the stream to identify the lines run to the river, as well as the return, of courses and distances measured along the margin, necessarily to ascertain the quantity of land in the survey, will not restrain the title to the bank or margin only. As was said in Klingensmith v. Ground, supra, a corner tree is not always to be had where it is wanted, and then the next most convenient must be taken; or as in Ball v. Stark, supra, a surveyor cannot run a curved line with compass; but if a creek is returned as the line there can be no mistake as to it, and the courses and distances along it are to be disregarded. See also Cox v. Freedley, 9 Casey 130. It is held also that public and private surveys are alike in this respect, and a private deed is judged of by the same rule: Cox v. Couch, 8 Barr 154; Caldwell v. Holler, 4 Wright 168. In navigable streams the title runs to ordinary low-water line, and in unnavigable to the middle of the stream. But if the stream is not made the boundary, or if a line is actually run and marked for the survey apart from the stream, the rule changes to suit the facts of the case.

Then to come to the case before us: Daniel Elliott’s patent described the land as “ beginning at a corner hickory of Pittsburg Manor standing on the bank of the Ohio river; thence by said Manor line outward, then returning “ to a corner ironwood tree standing on the bank of said Ohio river, thence up the same 233 perches to the first-mentioned hickory and place of beginning.”

West Elliott’s deeds to Wm. Price and to James O’Hara, are in language precisely similar as to the river, excepting that a less quantity of land is embraced, with less river front. There can be no doubt that both the patent and the deeds extend the title to ordinary low-water mark of the river. The proviso in the deeds to Price and O’Hara, we think, does not control the description in the deeds.

Another question more difficult, — and new in Pennsylvania, so far as we can discover, — is as to what river frontage these deeds convey. The upper or Manor line runs to the river at right angles nearly, but the lower or Crawford line runs to the river very obliquely, meeting the Manor line by compass course on the shore, at about low-water mark. »

The court below held that the lines running to the bank or margin of the river, instead of continuing in the same course by the compass, must run from their terminating points on the bank directly to the stream, at right angles to it; or in other words, each line on leaving the bank must run over the shore by the most direct and shortest route. The plaintiff in error argues that the lines should run by the same compass course to the stream, whether they cross each other before reaching the stream or diverge widely apart.

We have no precedents in this state to guide us, while foreign cases are not governed by the same principles which prevail here. We must decide this case upon'what we deem to be common understanding and usage, and the reason and convenience of the thing. As we have already seen, the practice of surveyors, in coming to a stream, is to stop upon its bank or margin, at the nearest convenient approach to the stream, and there to mark the corner indicating where the line strikes the stream. This is necessary to preserve the monuments of survey, as well as for convenience in making it. When the corner is set upon the high bank the stream may be one or many perches off, according to the character of the stream or its stage of water. In March or April a surveyor would probably find this river bank full, while in August or September he would find the water many perches away from the bank. The Allegheny and Ohio rivers at a low stage in many places fill less than one-half of their breadth between the banks. It is obvious, therefore, when the surveyor, running in toward the river, stops on its bank and makes his corner, he means, in the absence of other evidence found in his return, to indicate his nearest convenient approach to the stream, and thus to mark where his line strikes the stream, and the river front it gives to the owner of the survey. If he intended to continue his line by the compass course to the water’s edge, we would expect to find something in his return to indicate this intent. The very fact that he. runs a line along the stream from the end of one line to the end of the other line, where it reaches the bank, is the evidence that he does not intend to continue his line to an apex on the shore, otherwise he would have returned no such intermediate line. Thus it is hardly supposable that he intended the oblique line to run to an apex on the shore with the Manor line, and to cut off the owner of the survey from all the river front in low water, and dispensing also with the intermediate line.

The serpentine course of the stream, or its relative distances from the bank at different points, can make no serious difference as to the line of approach to the water’s edge. Starting from the bank, a direct course to the stream, or at right angles to the stream, must always afford the shortest and m’ost certain boundary of river frontage. Of course the rule as now laid down applies only to a case where no other intention is disclosed by the return of survey, or the deed.

In relation to the lease to Appal, it is sufficient to say that we think that the recital of the land intended to be leased, and the provision that no reduction in the rent should be made for interference by parties in possession of the Crawford or Wood property, show an intention to include all the land to the river, and the course of the oblique line over the shore is evidently an error of the scrivener, which is corrected by the other'parts of the lease.

Judgment affirmed.