Zug v. Commonwealth , 70 Pa. 138 ( 1871 )

The opinion of the court was delivered, November 20th 1871,

by Agnew, J.

If this case was intended to test the right of a party to obstruct navigation between high and low water lines, by means of buildings or deposits upon the shore, its selection has been inappropriate, as the facts found in the special verdict tend to negative the existence of any obstruction. The verdict makes the diagram filed by the commissioners under the Act of 16th April 1858, to establish high and low water lines in the Allegheny, Monongahela and Ohio rivers, a part of the finding. By that diagram it distinctly appears, that the land upon which the Messi’s. Zug erected their buildings and laid out their outside cartway lies upon the natural hank. The verdict finds that the descent of this ground, from the high-water line marked by the commissioners to the outside of the cartway, is not more than two feet, and that from the outside of the cartway toward the river the descent is abrupt. It is manifest from the findings that the erections are not on the shore. The verdict also finds that the deposit of cinders and slag between the high and low water lines is not up to the grade of the streets of the city terminating in the river, while it fails to find that these deposits were made upon the natural shore. The finding then concludes with this controlling fact, to wit: “ that the aforesaid buildings so erected and maintained by defendants, between high and low water lines, and the cinders and slag so deposited by them between said lines, have not and do not interfere with the navigation of said river at any stage of water.”

The effect of all the. conclusions of fact clearly is, that the erections and deposits complained of in the indictment, are not obstructions to the navigation. The learned judge who pronounced the sentence evidently founded his judgment on the fact that these erections and deposits were obstructions to the navigation, and possibly the verdict may not have followed the evidence closely. But be this as it may, we can infer nothing contrary to the finding of the jury, and if the facts thus found do not constitute a nuisance we must give judgment accordingly. Failing to find that the obstructions set forth in the indictment (which is at common law) occupy the shore of the river, and finding that they are not obstructions to navigation at any stage of water, the verdict leaves nothing for the law to adjudge to be a nuisance. Non constat that these erections and deposits are not placed where they may lawfully be, while it does appear affirmatively they are not injurious to the rights of the public.

This is not the case of an ordinary highway, upon which it is unlawful to build; but of a species of property which the owner may use for private purposes, provided his use do not interfere with the rights of the public. The rights of an owner between high and low water marks differ essentially from those of an owner of the soil over which a public highway passes. There is no highway for travel on/oot, by horse or carriage, along the shore of a navigable stream, by force merely of the public right of navigation. A stream, at high or low water stage, is a highway for boats or other craft; and as to these the verdict strips the alleged obstruction of any illegal character. The operation and effect of the proceedings under the Act of 1858 are not fairly raised in this case. Had the buildings and deposits been found to.be injurious to, and to interfere with the right of navigation, perhaps a different question might have arisen, upon which, however, we express no opinion. The case of Wainwright v. McCullough, 13 P. F. Smith 66, referred to by the learned judge below, does not touch this. It merely decided that the low and high water lines of the commissioners did not establish boundaries between individuals; either those running toward the river or those lying on the opposite sides of a channel of the river constituting a part of the public domain. They were intended to regulate the rights of public in respect to navigation, and to prevent private rights from the being exercised to the prejudice of the public interests. When a case shall arise, directly involving the effect to be given to the high and low water lines of the commissioners, we must decide it; but now we can only say that this case does not call for any opinion on that question.

Upon the facts set forth in the special verdict we must reverse the judgment of the Court of Quarter Sessions, and give judgment thereupon for the defendants; and order that they may depart from the court without day.