Cryer v. Sawkill Pines Camp, Inc.

88 Pa. Super. 71, 1926 Pa. Super. LEXIS 123

Opinion

Opinion by

Keeler, J.,

The plaintiff, claiming that the defendant corpora tion had unlawfully constructed a dock and float on Sawkill Pond, a commercially non-navigable natural pond in Pike County, having an area of about eighty acres, and that its members and guests were unlawfully using the pond for boating and bathing, brought this action in trespass. The parties agreed upon a case stated which, exclusive of the exhibits, will be printed by the Reporter. The court below entered judgment for the plaintiff and defendant appeals.

Defendant attempts to justify the alleged trespass on two grounds: (1) That ownership of its tract of 100 acres carries implied title to the centre or middle of the pond; (2) that a clause in its deed — and present in the chain of title since ,1848 — , securing to the owner of the land “the privilege of going to the pond with cattle either at high or low water mark,” gives it the right to do the acts complained of.

(1) As respects the first position, it would seem that the defendant in agreeing to the facts of the case stated — (see paragraph one) — has cut the ground from under its feet; for it admits that the plaintiff on August 1, 1924 “was the owner in fee and in peaceful possession of a certain tract of land ¡adjoining defendant’s land hereinafter mentioned, covered by the waters of Sawkill Pond, the plaintiff’s title papers calling to high water mark as ¡a boundary”; and the description of the premises in plaintiff’s deed, which is made a part of the case stated, embraces “All the land covered by the waters of a certain pond known as Sawkill Pond or Cox Pond to high water mark, being about eighty ¡acres of land, more or less.” If plaintiff was the owner in fee of all the land covered by the waters of the pond to high water mark, defendant could not successfully claim an implied title to the centre of the pond merely by reason of the ownership of land bordering on the pond. But, .assuming, for the sake of ¡argument, that the defendant inadvertently admitted more than it intended by the case stated, we are still of opinion that the learned court below correctly determined that the defendant’s title did not extend to the centre of the pond.

It seems to be accepted by both parties that the exhibits attached to the case stated show that John H. Wallace was the common source of title of both plaintiff and defendant; that he had title to all the land affected by this litigation, including the pond; and that whatever remained in him after the grant to Wainwright [defendant’s predecessor in title] became vested in the plaintiff. Defendant’s first point raises the question whether the deed to Wainwright, which is identical in form with the defendant’s deed, passed title to the grantee to the centre of the pond.

The case of Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605 — on which defendant places much reliance— was concerned with la lake navigable in fact. The question involved was whether in obtaining his patent from the Commonwealth for the land surrounding the lake the patentee took title to the middle of the lake or only to the water’s edge. Our Supreme Court approved the rule as declared in Lamprey v. State, 52 Minn. 181, that where the lake is navigable in fact its waters and bed belong, to the' State, in its sovereign capacity, and the riparian patentee takes the fee only to the water’s edge; but where the lake is non-navigable in fact the patentee of land bordering on it takes to the middle of the lake; thus differing, as to non-navigable lakes or ponds, from the rule in force in Massachusetts, which retains title to the bed and waters of the pond in the Commonwealth. See Kanouse v. Stockbower, 48 N. J. Eq. 42, 21 Atl. 197 for a fuller consideration of the subject. The Conneaut Lake decision is authority in this case for the proposition that the patent to Ludwig Yandermark, for a tract !of land including within ft Sawkill 'Pond, passed a fee simple title to all the land covered by the waters of the pond; but it does not support the po sition taken by appellant that the present owner of land bordering on a pond necessarily holds title to the centre. Onr Supreme Court decided otherwise in Baylor v. Decker, 133 Pa. 168, 173, and Smoulter v. Boyd, 209 Pa. 146, followed by this court in Fuller v. Cole, 33 Pa. Superior Ct. 563. It was perfectly competent for Wallace, who owned the pond and all the land around it, to convey to defendant’s predecessor in title a tract of land extending along the east bank of Sawkill Pond without granting him any rights to or in the waters of the pond or the land underlying it: Gibbs v. Sweet, 20 Pa. Superior Ct. 275, 283; Fuller v. Cole, Supra, p. 568; Canal Appraisers v. The People, 17 Wendell 570, 596, 597; Greenspan v. Yaple, (App. Div.) 194 N. Y. Supp. 658, 660.

The appellee contends, and rightly so, in our opinion, that the deed from Wallace to Wainwright under which defendant claims title, clearly shows the intent of the parties to retain in the grantor the title to the bed and waters of the pond and only to convey the land up to the line described as running along the east bank of the pond. The description of the premises conveyed supports this contention. It reads, (italics ours), “Beginning at a heap of stones by side of a rock' on the east bank of Sawkill Pond; thence [after several courses away from the pond], by other lands of said John H. Wallace [plaintiff’s predecessor in title]......north 53 degrees west 107 perches to stones; thence by same [that is, by other lands of Wallace] and along the east bank of Sawkill Pond, as follows, north 12 degrees east 72 perches,......north 17% degrees east 16 perches to the place of beginning. Containing 100 acres strict measure, be the same more or less.” It will be noted that the deed does not call for the pond as a boundary. The starting point of the survey is not the pond, but “a heap of stones by side of a rock on the east bank of Sawkill Pond.” The course leading towards the pond does not call for the pond as the terminal or boundary, but reads “107 perches to stonesAnd the subsequent courses are not described as “ialong said pond” etc., but “thence by same [that is, by other lands of Wallace] and along the east bank of Sawhill Pond,” etc., showing the intention that the line of the property conveyed should only run up to and along the edge of the bank and be bounded there by lands of Wallace, the owner of the pond. The description in the present deed is strikingly similar to the description in the deeds considered in Smoulter v. Boyd, supra (p. 148), and Fuller v. Cole, supra (p. 566), in both of which it was held that the deed did not call for the pond as a boundary, nor show an intention to convey to the centre of the pond or grant any rights beyond the fee in the land as described in the deed. Furthermore the very fact that the deed from Wallace to Wainwright specifically provided that the grantee should have “the privilege of going to the pond with cattle either at high or low water mark” is persuasive evidence that the deed did not purport to grant him title to the land covered by the waters of the pond nor confer any rights in it except such as were expressly granted. The grant of an easement implies two tenements; the dominant to which the privilege is attached; the servient, upon which it is imposed: Bradley v. Am. T. & T. Co., 54 Pa. Superior Ct. 388, 396; Lehigh & N. E. R. Co. v. B. & P. Ry. Co., 228 Pa. 350, 353. If the grantee by the deed acquired title to the middle of the pond it" was unnecessary, if not misleading, to grant him the right to water his cattle there. One cannot have an easement in his own lands: 19 Corpus Juris 863.

Appellant urges upon us " with much insistence the case of Gouveneur v. National Ice Co., 134 N. Y. 355, 31 N. E. 865. If the decisions of our Supreme Court rule the case against him, it is, of course, immaterial what the Court of Appeals of New York may have de eided; but a careful examination of that case shows it to be in substantial harmony with the law as laid down in this state. It was held in the Grouveneur case that one who had conveyed away to others, by deeds calling for the pond as a boundary, all the land surrounding a natural non-navigable pond or lake, without reserving to himself the land under the pond, will be held to have parted with his title to the land covered by the waters of the pond, and that each riparian owner’s title extends to the centre line of the pond. But the decision was based on the fact that the deeds called for the pond as the boundary. The opinion recognized the distinction, clearly established in that state, between grants where the course is described as running “along the pond,” or “along the stream,,” and those where the line runs “along the bank,” or “along the shore,” of the pond or stream; under which it is •ruled that only the former carry title to the centre of the pond or stream: Child v. Starr, 4 Hill 369; Starr v. Child, 5 Denio 599; Halsey v. McCormick, 13 N. Y. 296; and it was because the line in the Grouveneur case was described as, “along said pond,” that the deed was held to call for the pond as a boundary and therefore to carry title to its centre. In Fulton L. H. & P. Co. v. State, 200 N. Y. 400, 94 N. E. 199, 204, which followed the Grouveneur case, it was said, “A boundary line which is described as ‘along the shore’ or ‘along the bank’ of a fresh water stream [or pond — the rule is the same] would not extend to the centre; for there would be a prescribed limitation of the line to the shore or bank.” To the same effect see Landon v. Clark, 242 Fed. 30, 37 (C. C. A. 2d Circuit), where the Grouveneur case is discussed. The principle is in substantial accord with our case of Wood v. Appal 63 Pa. 210, 224, where our Supreme Court said: “In navigable streams the title runs to ordinary low-water line, and in unnavigable to the middle of the stream. But if the stream is not made the boundary, or if a line is actually run and marked for the survey apart from the stream, the rule changes to suit the facts of the case.” Following the Grouveneur ruling, as thus explained, defendant’s property ends at the line “along the east bank of iSawkill Pond” and does not extend to the centre of the pond.

(2) Nor do we have any doubts as respects the defendant’s second point. The grant from Wallace to Wainwright limiting the premises conveyed to the boundary line therein set forth, reserved to the grantor, Wallace, “the privilege of flowing to the top of the bank,” once again recognizing in Wallace the continued ownership of the pond and the land under it; but provided that “Wainwright is to have the privilege of going to the pond with cattle either at high or low water mark.” The right thus granted is clear and unambiguous. It is limited to the purpose defined in the grant: Bell v. R. R. 25 Pa. 161,181; Woodring v. Hollenbach, 202 Pa. 65; Eastern Pa. Power Co. v. Lehigh C. & N. Co., 246 Pa. 72, 78; 19 Corpus Juris 974, sec. 218. It cannot be extended to embrace objects not fairly within the scope of the privilege granted. It is clear to us that the privilege of watering cattle at the pond, thus conferred on Wainwright and his assigns, does not include the right to maintain a dock or float on the pond or to row or bathe therein.

The assignment of error is overruled and the judgment affirmed.