BALL and Others against SLACK and Others, 2 Whart. 508

The opinion of the Court was delivered by Hustobt, J. This was an action of trespass; and the cause turned on the construction of the grant,Or. grants, under which the plaintiffs claimed; for if the right to the locus in quo was in the plaintiffs, the defendants were wrong-doers. At the opening of 'the case I was disappointed, in that a more careful search for original papers had not been made in the land office, and for the deed from Gunner Rambo to Major George Lillington, and other deeds from that time down.

Those papers might, and I still suppose, would have put at rest all the disputed facts in this cause. ._ - We must however decide on what is before us; and when the cause comes again before a court, if there isffiher evidence, they must decide on that.

The last part of my remark will not be disputed; but long experience has taught me that, where a new trial is granted by this court, the cause goes back with a'heavy weight in one of the scales, and it is always asserted, and-sometimes believed, that a different - result cannot be given to the cause, without disrespect to this court: whereas in truth every original title may, by long use, by long neglect, by long intrusion of others, or by many other matters, be limited or extended, especially where the boundaries are in any degree vague; and in all new trials it -is possible, there may be a different finding of the facts, and different evidence from that at first adduced. • - The original grant under which the plaintiffs claim, as exhibited to us, in what I suppose to be what is since called a warrant of acceptance, _ is in these words: “ The firsts piece of land beginneth at the mouth of Gunner’s Creek; from thence running up the several courses of Delaware river to a corner post of Peter Nelson’s land; then N. 16° W. by said Nelson’s land, 110 perches to a corner white oak standing near unto the above-said'Gunner’s Creek; from thence following down the several water courses thereof to the place of beginning; being fifty-four acres oí land, sivamp, and crip• pie.” The grant is to Gunner Rambo, old renter.

I need not recite the course, &c. of the other parcels grante'd ; the one of them is of swamp, meadow and cripple, between'Nelson’s fast-land and the Delaware.

This land grante'd to Rambo, and other adjoining land had become the property of Anthony Talmer, who, on the 21st of March 1728, granted to the ancestor of the plaintiffs six hundred and seventy-six acres, beside the flats thereto belonging: the description is, “ Beginning at the mouth of Gunner’s Creel?, and running up said creek on the several courses thereof 291 perches to a line of Robert Rawle’s land;” it then gives the courses and distances, and corners and names of those .on whom it bounds till it strikes another creek; “ thence down the same 247 perches to the river Delaware; thence down the said river 572 perches to the beginning.” The proof is, that the tide went up Gunner’s run a mile or more; and on the 24th of February 1770,

an act of assembly was passed, authorizing the owners to protect the low lands on this creek from being overflowed, by a dyke or bank, and a sluice or sluices in it.

If there is any point settled in Pennsylvania relating to land titles, it is that where a grant or survey is bounded on a river or creek, it extends to that river or creek, and except in the case of large navigable streams, extends to the middle of the creek; and whatever may have been or may be imagined in this vicinity, I think that where a man’s grant or his survey calls for a creek or river, no lawyer of any reputation would contend that another could come between him and the creek or river, and cut him off from it; and where the courses and distances on the creek or river are given, and on examination it is found, they do not closely follow the stream, it does not alrer the case.

A surveyor cannot run a curve line with his compass; .and courses and distances may have been taken incorrectly, or an error may have been made in making out the return of survey; but if a creek is returned as the line, there can be no mistake as to it; it is the line; and courses and- distances along it are .disregarded. I do not understand that in this case these principles have been denied or controverted. The contest is not whether the plaintiffs’ right extended to Gunner’s run; but where Gunner’s run or the mouth "of Gunner’s run is; and this again is subdivided.

I shall not examine the doctrines and cases of construction of grants, for the cardinal one supersedes inquiry as to the rest. I mean .that every grant is to be construed according to the intention of the parties. The grant is to begin at the mouth of Gunner’s run and to extend up .it by its several courses: there is no ambiguity in this; if there had been, universal usage and uniform decision have affixed the meaning.

The mouth of Gunner’s Creek must mean the place where it discharges its waters into the Delaware ; if it meant the point beyond which the tide did not stop its current, or swell beyond its bank, then the mouth .was a mile from the spot in dispute; which is not pretended.

But it is contended that this grant means, ‘ beginning at high water mark above the mouth of Gunner’s run;’ but this would. be a different grant, and as high water mark for a mile up the creek was different from the channel of the creek at low water, this construction would cut Rambo from this creek: he would touch it no where; and besides what meaning must we give to the words, fifty-four acres of land, swamp and cripple.

It is contended, that flats are different from swamp and cripple; it may be so; since this grant, however, we have proof that more than one range of timber and board-raft have laid at high tide and low tide on what are now called flats; and a hundred small craft have been passing over these flats daily; and it is possihle that vegetation extended at one time much nearer the low water mark of the river and creek thanpt now does.' .1 shall suppose, however, that in this respect, the appéarance was always what it now is.

We then come to the question, what right has the owner of land adjoining and bounded by the Delaware or Schuylkill, to the ground over which the tide runs every day-, and which is left free from water every day. This, if it is still a question, is an important question. The general proposition, that the owner has a right, restricted by the fact, that the river ¡'is a highway, does not seem to be denied; for the defendant showed a deed for the flats between his fast land and low water, and claims to low water by that deed, and puts his right to go beyond low water, on the"permission of the wardens.

It seems to me, that writers and courts from Sir Matthew Piale to this time, agree on this subject,; different cases have brought the question in different shapes before courts. It seems agreed,, that between low water and ordinary high water of the ocean; and wherever the tide ebbs and flows, is part of the common highway, over which all citizens and aliens may sail. In England, this is said to be vested in the king; here-it is in the state.

There and here, originally, goods might be landed any where, on permission from the owner of the adjacent land;' now in both countries, on account of revenue, ports of entry are established, at which alone certain goods can be legally landed, except in case of storm or distress.

There and here the government have exercised the right of building wharves, &c., for’ the improvement and convenience of trade; on the, intermediate space between high and low tide, and beyond' low tide ; but I know of no instance, either in that country or this,, where it has been held that one man can, of his own right, or by the permission of any officer of g'overnment, build a wharf on the property of his neighbour.

I do not say any thing of acts of the legislature, for the improvement of a city-or port, where, if the owner refuses, certain persons may erect for him, and charge him with the expense; such'or similar laws have been; I am not speaking of such cases. Our acts of assembly would seem to have recognised the right of the owner to erect wharves down to low water mark. The act of the 7th of February, 1818, is supposed to have limited this, and to have required the sanction of the wardens even for this.

I do not consider it necessary to discuss this point; at all events,, the person applying, must show7 a right to the place to the wardens ; but their permission is not evidence that he has a valid right ;■ they have no powrnr to cite parties or try titles; but it shows that none could lawfully build a wharf, but he whoJiad a right to the place where it is built. ' We come back to the qdestion, was the land where this wharf is erected, the property of the plaintiff? A good deal was said about the right of fishing being limited, to a right-angle line- from the shore. The act of 1809,

section 10, provides, “That if any person or persons whatever shall cast or lay out any seine or net into the river Delawaie, within the jurisdiction of this state, beyond the right angle of the shore, and where his line strikes the river at low water mark, in going out, or suffer it to swing beyond the right angle of the shore of the river, and where his line strikes it at the water mark coming in,” &c. The act of 1785, in the sixth'

section says, “where two live adjoining each other on the same side, each shall have the right of fishing opposite his own land ; the position of which pool is to be by continuing the course of the division line or lines of the persons next adjacent.” This act relates to the Schuylkill. There is nothing in these acts in favour of the defendants; and they show the understanding of the legislature, that the owner of the fast land had a right between high and low water mark; the extent of which on the river, was to be ascertained by continuing the lines of his land which came to the bank of the fast land.

The line of the plaintiff is Gunner’s creek. Gunner’s creek is where the water of that creek flows, when the tide permits it to flow; anfl the mouth of Gunner’s creek is where it flows into the Delaware, when the tide permits it to flow; and is the same at high water as at low water. As to the possession of the plaintiff: possession of the inclosed land is possession of the flats. That rafts and boats at high water, passed over the flats, amounts to nothing.

The right of the plain'tiff was subject to this right in the public at high water; but this .right of the public to sail over the fiats in high water, is totally different from the right of an. indi vidual to erect a wharf, and keep possession, for his own emolument, at all states of water. There were two papers offered'; one was what was called Lewis Evans’ plot of the Palmer estate, on the opposite side of Gunner’s creek. I do not say that in no case can a draft of adjoining lands, though not in the land-office, be given in evidence in a contest about the extent and boundary of adjoining land.

This purports to be a solemn partition of land by heirs, accompanied by a draft; but it does not extend, as

an act of the parties, to Gunner’s creek; the south-west side of Gunner’s creek from the road, and for some distance down the road, was not included in the partition then made ; it is stated to be the property of Dr.. Shippen, in fee. The surveyor ascertained the lines of it, where it adjoined the lands of Palmer’s heirs; though his doing so would not bind Dr. Shippen ; much less can the courses and situation of the creek and river, at a distance from the Palmer estate, affect the plaintiff. There is no presumption that the creek and river were laid down from actual survey.

His duty did not require him to survey them. And if it had been observed that the land south-west of the creek had not been the subject of partition, and that no courses and distances were set down along that part of the creek or the river, I think it would not have been admitted. The paper in the handwriting of John Lukens, was also admitted.

It is thus, “ 16thMarch, 1773, being called upon to go in company with Hugh Roberts, Joseph Fox and Charles West, to the bridge over Gunner’s run or creek, on the read to Póint-no-Point, and after placing a surveying instrument over where they said the middle of the creek formerly was, they set the course to the place they said the creek’s mouth at loio-water mark was\ The same was found to be S. 7° E. from the same station the chimney of Marmaduke Cooper’s new house bears, S. 15° E. and the steeple of Christ Church bears S. 43° 45' west. ■ Carefully' examined,” &c.

The acts, and in some cases the declarations of a surveyor when executing a warrant, are evidence': ;but after a survey has been executed and returned, neither his acts nor' declarations can affect the right of the owner. But the objection to this paper is, in addition to what Ihave said, that we don’t know t]ie gentlemen named; we don’t know, and nothing in this case raises, even a presumption, that either of them had any interest in the lands, even near this spot. The mouth of the creek is taken from their information; John Lukens don’t pretend that he sav^ it.

Now it'will not do that a title shall depend on the parol declarations and unofficial acts of any men, however respectable they m^y hgve been. The law for embanking out the tide had passed in 1770, and ids probable they met to settle something, or some right up the creek. The case of Blundell v. Cotterill, decides that although the king or the public may sail pver land covered by the tide when up, yet the owner of the adjacent fast land can support trespass against one entering on and exercising acts of ownership, at low-water.

And it niust be so : if wharves can be erected between a man and the river, why not houses ? and if he has no remedy, a stranger or strangers may come between him and the river and make his farm what is called a dry land farm; he may have no place at which to water his cattle.

We are then of opinion the plaintiff has a right to the run and to half of the run: if the boundary of the run on his side, is flats covered with water, at high tide, still he has such right to and interest as that no person can come between him and the run or erect a wharf or any thing else on the plaintiff’s side of the run; and that this right extends to the river at low-water mark, and to the mouth of the.creek at low-water mark.

There is some contrariety in the testimony as to where the mouth of the run was, and where it is : if it is diflerent from what it was, if this change has been gradual, and arising from the creek and river solely, the alteration is the gain or loss of the different owners on different sides; but if it has been occasioned by the acts of the parties, the act of one party shall not injure the other.

We hear of a dam on the creek breaking, of the channel of the creek having at that time been obstructed by loaded arks lying in it or sunk in it, and that this forced the current across the plaintiff’s flats and wore a channel above the former mouth of the creek; if this were so, it will not alter the right of the plaintiff; we are told the wharf is built so as to obstruct half the channel of Gunner’s creek, and that above the wharf material was taken to fill the wharf, and that thus part of the present outlet of the creek is above and part below the wharf; if this be so, and the change was the consequence of acts done by the defendants, this will not alter the right, nor give to one or take from the other.

With these observations we leave it: if the defendants please they may have a new trial as to where the mouth of Gunner’s creek was and is, and if there is any change, how it was produced.