Union Canal Co. v. Landis , 9 Watts 228 ( 1840 )

The opinion of the Court was delivered by

Gibson, C. J.

The commonwealth having dominion over navigable streams, and having a consequent right to dispose of them at pleasure, declared the Swatara a public highway in 1771; and thus it was devoted to public use. In 1800, an act was passed, by which was granted to Christian Bear, from whom the complainants derive their title, authority to erect and maintain a dam across that stream-, “provided the rights of every person whomsoever, shall remain inviolate and unaffected by this act, especially that the privileges granted to Adam Hamaker, and the company incorporated for the purpose of opening a'canal and lock navigation from Susquehanna to Schuylkill, shall not be impaired or infringed by any thing herein contained.” Authority to erect a dam across the Swatara, had been given to Hamaker in 1793, with the same reservation of the rights of the company. What were those rights? “ To enter upon the lands covered with water, situate upon, near, and between Tulpehoccon creek, in the county of Berks, and Swatara creek, in the county of Dauphin;” and' for what purpose? Not merely “ to lay out and survey the route of their canal,” as mentioned in the sixth section of the act of incorporation, but evidently to appropriate the public franchise to the purpose of the work without paying for it to one individual, because it belonged to no individual. An exclusive right to the water was not expressly granted, but that the company might enter and take it without stint, was an implicit stipulation of the charter. By the grant of power to make the canal every thing necessary to the purpose, passed as incidental to it which the state had power to give; and without a right to take the water, the grant would have been useless. The state itself put that construction on the very grant under consideration; and the successors of the original grantee are bound by it. She granted the petition of their predecessor on her own terms; one of which was that he should not interfere with the company’s right. What right? Not the right of taking private property for public use on payment of a compensation, for that'was more efficiently secured by the constitution; but the right to be first served out of the stream, and to make, at pleasure, all erections necessary to the enjoyment of it. The'residue of the use alone was subsequently granted: it was all the state had power to grant. The grantee took subject to the company’s right to enter still further on the actual possession of its franchise; and he erected his dam at the express risk of interference from subsequent erections. The public right of navigation, was necessarily to continue till these should be made; and hence the necessity of a grant subsequent to the origin of the company’s title, without which, a private dam would have been a nuisance. What the legislature meant to do, therefore, was not to grant an estate in the use of the stream, but to guard the occupant from prosecution for an invasion of the residue of the public franchise. The respondent, then, as that company’s successor, was entitled to enter on the subject of its .grant, exactly as if no grant had been made to any one else'; and on the ground taken by the court below, the proceedings were properly quashed.

Judgment affirmed.