York Haven Water & Power Company's Appeal , 212 Pa. 622 ( 1905 )

Opinion by

Mr. Justice Fell,

The question raised by this appeal is whether the appellant’s power plant should be assessed for taxation in York county or in Lancaster county. The facts that give rise to it are these : The appellant purchased a tract of 400 acres of farm land in York county on which there were a farmhouse, barns and other farm buildings. The eastern boundary of the tract was the Susquehanna river, where it had a frontage of three-fourths of a mile. It constructed crib dams which extend into the liver and a race by which the water is conducted to a power house 278 feet long and forty-nine feet wide. It is agreed that the boundary line between York and Lancaster counties is low-water mark on the western bank of the Susquehanna river. The disputed question of fact is whether the power plant is east or west of this line. All of the witnesses agreed that a part of the plant is east of low-water mark. The court found that the whole of it is east.

The conflict in the testimony arose mainly from the different views of the witnesses as to what should be considered low-water mark, whether the lowest line the water has ever been known to reach or as expressed by some of them “the lowest kind of low-water mark,” or the line of ordinary low water, not the effect of an extreme drought. The learned judge, following the decision in Stover v. Jack, 60 Pa. 389, held that the low-water mark was the line to which the water receded at ordinary states of low water, and ascertained the location of this from the testimony of witnesses who had observed the river for a long period of time and who fixed the line of low-water mark by monuments on the ground. The case was considered and decided on right principles both in determining what was low-water mark and the weight of the evidence. We should not set aside the finding of fact by the court unless convinced of clear error. From a careful review of the testimony we find nothing to lead us to doubt its correctness.

It is, however, contended that if the power plant is located east of the line of York county, it should be assessed in that county as a part of the tract on which the mansion house and other buildings are located. This contention is based on the Act of June 1,1883, P. L. 51, which provides that where county lines divide a tract of seated land, the assessment shall be made in the. county in which the mansion house is situated. The act does not apply to this ease. The appellant was incorporated for the purpose of supplying water and power and of generating electricity by means of water power. By the purchase of the farm it secured valuable water rights and has utilized them by the construction of a dam in the river and a race and power house on its margin. The improvements are valued at 1500,000 and occupy only a few acres at one side of the tract. These acres are practically severed by their use from the rest of the tract and are applied to a new and entirely distinct use wholly unconnected with the use to which the remainder is put. They are not a part-of nor appurtenant to the farm. The 59th section of the Act of July 11, 1842, P. L. 321, which contains a similar provision as to lands divided by borough or township lines, was held not to apply to a house in a borough not used in connection with nor as a part of a farm : Commonwealth v. Wheelock, 13 Pa. Superior Ct. 282.

The order of the court is affirmed at the cost of the appellant.