Johns v. Davidson , 16 Pa. 512 ( 1851 )

The opinion of the court was filed, July 23, by

Coulter, J.

The application does not describe the improvements. But this, although it is required in the statute, was designed to answer a particular purpose, to wit, to inform the government whether any one was entitled to the preemption under the act of Assembly permitting the appropriation of islands. In this case, the two years during which the preemption was to run had expired long before the application ; and therefore, as regarded the commonwealth, it was of no moment that they should be described, because the island, was to be valued by persons appointed, who would of course take into consideration the value of the improvements. The commonwealth, after valuation of the island, and after all the preliminary steps except the one of describing the improvements in the application, had been duly taken, granted a patent to Davidson in March 1841. This closed up the matter, and, as far as the commonwealth was concerned, vested the title in the plaintiff below; and this disposes of the first bill of exceptions. The second bill covers exceptions to evidence of assessments of the island in dispute, by the authorities of Huntingdon county offered for the purpose of showing that the island did lie in Huntingdon county, and that therefore the court in Mifflin county had no jurisdiction of the cause. But the lines and boundaries of counties are fixed by statute, and the power is not given to the commissioners or other officers of a county to restrain or expand those boundaries. Whether the assessments were made for a long or short period is of little importance, because local usage or trespass can never repeal positive statutory law. The third and fourth bills of exceptions are disposed of by the same rule and reason which governs the second. The proceedings of the Orphans’ Court of Huntingdon county, even if they were properly certified, would not conduce to establish the line of Huntingdon county, or to restrain or limit the line of Mifflin county or oust the jurisdiction of its courts.

As to the fifth bill of exceptions, it may be sufficient to say, that islands have been, from the earliest settlement of the State subject to different rules as to the acquisition of title, than those which applied to the main land. The improvement therefore on the island, being merely an extension of the improvement of Johns on the mainland in Huntingdon county, vested no title in the said Johns to the island. The law of actual settlement and improvement was never extended to islands. The sixth bill of exceptions to evidence is closely allied to those considered already. Testimony of assessments in Huntingdon county for twenty-eight years might perhaps be admitted, if the actual location of the line was uncertain, had been obliterated, or had never been surveyed or marked. In such case the assessments for a long period of time might conduce, in the absence of better evidence, to show where the line originally was. But here the line is well known, neither defaced nor shifted by time or accident. It is the Juniata river. And the real question is whether the statute makes the southern bank or shore or the middle of the river the true boundary between Mifflin and Huntingdon counties, as far as it is the boundary. That is a question of law.

Mifflin county was erected out of Cumberland and Northumberland counties. At that time Mifflin embraced the county of Juniata within its limits, which was since erected into a separate county; but that affects not the question here, as the conflicting jurisdiction is between Mifflin in its present limits and Huntingdon. The line of old Mifflin crossed the Juniata and took in a large portion of territory on the eastern and southern side of it; and then intersecting the line of Huntingdon county on the southern side of the river, the statute proceeds as follows: “ Thence along the said Huntingdon county line to Juniata river, thence up said river to Jack’s Narrows,” &c. Between Jack’s Narrows and where the line of Mifflin strikes the river, lies the island in dispute. It was contended here, and also in the court below, that the middle of the stream was the true boundary; and the court below seemed to be’ of that opinion, but left it to the jury to say whether part of the island was not on the side nearest the Mifflin shore ; and that if that was the case, the Mifflin county court had jurisdiction, under a statute which prescribes that when land lies partly in one county and partly in another, either county has jurisdiction to try title to the whole. But we are of opinion that the jurisdiction of Mifflin county over the island does not depend upon so uncertain a line. We are of opinion that the whole bed of the river and the islands in it, from where the line strikes the southern shore of the stream up to Jack’s Narrows, is in Mifflin county.

• By the common law, where a river is used as the boundary in a grant, it is used to the centre or middle of the stream, and to that extent the title or fee attaches, so that the proprietor of each bank is the owner of half the land covered by the water, saving to the public the right of highway. And islands in the middle of the stream or close to the shore of either side follow the same rule and are governed by it. This rule has been adopted in several of the states, New York among the number. In the case of Canal Commissioners v. The People, 5 Wend. 423, it was held that by the rule of the common law which was adopted in that state, grants of lands, bounded on rivers above tide water, extended usque ad filum aqux, including beds of rivers and islands, but subject to the right of the public to use the waters as a highway. But this rule was never adopted in Pennsylvania. By the act of 1785, appropriating lands in the new purchase, islands were excepted from its provisions, and they were to be sold by special order of the government; and by the act of 1793 the mode of disposing of islands in the Susquehanna and its branches is provided for. By a late act of Assembly the land officers were authorized to issue warrants for land under the beds of certain western rivers, and many warrants. were issued under the act. In Pennsylvania, wherever a stream is navigable, and it is made the boundary of a grant by the State, the title passes to low-water mark, but no farther.

The common-law principle of usque ad filum aqux is not applicable to the large streams of this State which are navigable, although there be no flux or reflux of the tide; the beds of such rivers belong to the commonwealth: Carson v. Blayer, 2 Bin. 475. It is only to small streams not navigable that the principle of usque ad filum aqux applies in Pennsylvania : 8 Watts 477. The line therefore of Mifflin county being designated by the statute as coming to the Juniata river, on the southern side of the Juniata, or the side contiguous to Huntingdon, and thence up the river to Jack’s Narrows, took in the whole bed of the river to low-water mark; the line did not recross the river until it reached Jack’s Narrows.

Although, then, Huntingdon county, opposite the island in dispute, comes up to the river, it goes no farther than low-water marie; and the whole of the island is in Mifflin county, whose court had unquestionable legal jurisdiction of the cause. This island was the property of the State, and remained open to appropriation under the terms of the act of 1793. That act expressly recognises cases where improvements have been made; and provides that in any application for the appropriation of an island, the applicant shall state whether any improvement has been made, and also the nature of the improvement, and when and by whom made. And no warrant shall issue directing any island thus improved to be surveyed, except in favor of the person who has made such improvement, or in favor of his heirs or assigns for the term of two years after passing that act; and providing that after the expiration of that time, warrants shall issue for such improved island in favor of any person or persons who shall first apply for the same.

The warrant in favor of Davidson was not issued until long after the expiration of two years from the date of the act of 1793, to wit, in 1835. If the improver, his heirs or assigns, chose to slumber over the privilege accorded to them till it was too late,, the fault is their own. The dominion of the State was not thereby lost, and they had a right to grant it to whom they pleased.

Judgment affirmed.