The opinion of the court was delivered,
by Sharswood, J.
— The Act of Assembly of April 15th 1858, Pamph. L. 267, and the supplement thereto of April 5th 1859, Pamph. L. 359, upon which the bill filed in the court below is professedly based, are confined in their operation to the county of Philadelphia. It is a sample of the local legislation, unhappily, it seems, becoming popular — at least very much on the increase of late years, and which threatens to destroy by degrees all uniformity in our laws; so that a different system of rights and remedies will take root and grow up in each separate county or section. It is much to be deprecated. Such laws are certainly not entitled to be regarded with any unusual favor by the courts, and are not to be extended by construction beyond what their language plainly imports. The legislature probably could not have been induced to adopt such provisions as these acts contain, at least in the sense which is claimed for them, for all parts of the Commonwealth; for if the construction contended for be sound, they would draw within the maw of a court of equity all questions of disputed boundaries, including interfering surveys and settlements, which have been heretofore cheaply and satisfactorily committed to the determination of courts of common law, with the necessarily accompanying right of trial by jury. Even in England the very limited jurisdiction exercised by the Court of Chancery upon the subject of boundaries has been justly regarded with great disfavor and jealousy. In a leading case, Lord Keeper Henley, after-wards Lord Chancellor and Earl of Northington, used this very emphatic language: “There have, since I £at here, been several (bills) to fix boundaries, when a right to the freehold of the soil has been incidental. But I have seen such frightful consequences arising from them, that I think these suits are very far from deserving encouragement. They originally came into this court under the equity of preventing multiplicity of suits; yet in those eases I have observed that they have been sometimes attended with more expense than if all the suits which they had apprehended, and which they were brought to prevent, had actually been tried at law:” Wake v. Conyers, 1 Eden 331; 2 Cox 360. It was established as a principle in that case, which has been maintained and followed ever since, that the court has no jurisdiction [280]*280to fix the boundaries of legal estates, unless some equity is super-induced by the act of the parties: 2 Leading Cases in Equity 318. It is maintained, however, by the learned counsel for the appellants, that the Acts of 1858 and 1859 carry the jurisdiction of a court of equity in Philadelphia county beyond that usually exercised by the Court of Chancery in England on the subject of disputed boundaries, and it is frankly conceded that there a mere dispute as to the dividing line of two adjoining estates, not held under the same title, where there is no especial equity affecting the defendant, would not give jurisdiction. Unless these acts are to have this construction, the appellants have no ground to stand upon. No special equity to affect the defendants is alleged or pretended. It was a very grave constitutional question, though it must now be regarded as solemnly settled by this court, whether the legislature can constitutionally transfer any part of the common-law jurisdiction heretofore enjoyed and exercised by courts and juries .to a court of chancery. By Art. V., sect. 6, of the Constitution, it is indeed provided, that “ the legislature shall vest in the Supreme Court and the several Courts of Common Pleas, such powers to grant relief in equity as shall be found necessary, and may from time to time enlarge or diminish their powers, or vest them in such other courts as they shall judge proper for the due administration of justicebut this section must be read along with Art. IN., sect. 6, in which it is also declared, “ that trial by jury shall be as heretofore, and the right thereof remain inviolate;” an article which has a very special declaration of sanctity annexed to it by the people. If the legislature can transfer a part, they can the whole of the jurisdiction in civil cases to courts of equity, and thus practically abolish trial by jury entirely in these cases. This court has accordingly held that the Act of April 22d 1856, Pamph. L. 502, giving a tenant in common in coal or iron mines, whose right is denied or resisted, the power to apply by petition in equity to the Court of Common Pleas of the county where the lands lie, and investing such court with the jurisdiction to adjudicate and determine the rights of the several parties according to the course of a court of chancery, conflicts with the constitutional right of the citizen to have controverted questions of fact in common-law causes decided by a jury, and that it is applicable only to cases in which the rights of the complainants are equitable: North Pennsylvania Coal Co. v. Snowden, 6 Wright 488. “It is true,” said Mr. Justice Strong, “that the legislature are authorized to vest in the courts such powers (beyond those enumerated) to grant relief in equity as shall'be found necessary, but this must be understood as referring to powers in equity cases, in that class of cases of which chancery had jurisdiction. Such an understanding is necessary to make the different parts of the constitution consistent with each other, and to give effect to all. [281]*281It cannot mean that the legislature may confer upon the Supreme Court and the Courts of Common Pleas the power of trying according to the course of chancery, any question which has always been triable according to the course of law by a jury. If it can, then an ejectment founded solely on legal title, an action of debt on a bond, or a replevin, or an action of trespass may be sent into chancery, all contested facts in it to be decided by the judge, and the intervention of a jury be unknown. Then what has become of the constitutional right of the citizen ? Such a doctrine would startle the people of this Commonwealth, and justly, for it would deprive them of one of their most valuable privileges. No power in our government can take from the litigant the right to have his case tried by a jury, substantially in the mode and with the same effect as that which belonged to jury trials in similar cases, when the Constitution of 1776 was adopted. What is law and what is equity, is a judicial question. It belongs, therefore, exclusively to the judiciary. But'were it admitted that the legislature could authoritatively convert a legal right into an equitable one, a court of equity could not, as such, enforce it. The judiciary, no more than the legislature, can deny to any litigant the right of trial by jury, in a ease appropriate to such a mode of trial. The Act of 1856, then, is applicable only to cases in which the rights of the complainants are equitable. It would conflict with the Constitution, if it had a more extended application.”
I have made so full an extract from this opinion, because, though spoken of the Act of 1856, every word of it applies to the Act of 1858 and 1859, now in question. We do not hold these acts to be unconstitutional. It is not necessary to do so. We are bound to give them such a construction as will not conflict with the constitution; and that must necessarily be that they are confined in their ti-ue intendment to cases which are properly the subject of equitable jurisdiction. That jurisdiction must first be shown to exist, before the remedial provisions of the act can apply.
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The opinion of the court was delivered,
by Sharswood, J.
— The Act of Assembly of April 15th 1858, Pamph. L. 267, and the supplement thereto of April 5th 1859, Pamph. L. 359, upon which the bill filed in the court below is professedly based, are confined in their operation to the county of Philadelphia. It is a sample of the local legislation, unhappily, it seems, becoming popular — at least very much on the increase of late years, and which threatens to destroy by degrees all uniformity in our laws; so that a different system of rights and remedies will take root and grow up in each separate county or section. It is much to be deprecated. Such laws are certainly not entitled to be regarded with any unusual favor by the courts, and are not to be extended by construction beyond what their language plainly imports. The legislature probably could not have been induced to adopt such provisions as these acts contain, at least in the sense which is claimed for them, for all parts of the Commonwealth; for if the construction contended for be sound, they would draw within the maw of a court of equity all questions of disputed boundaries, including interfering surveys and settlements, which have been heretofore cheaply and satisfactorily committed to the determination of courts of common law, with the necessarily accompanying right of trial by jury. Even in England the very limited jurisdiction exercised by the Court of Chancery upon the subject of boundaries has been justly regarded with great disfavor and jealousy. In a leading case, Lord Keeper Henley, after-wards Lord Chancellor and Earl of Northington, used this very emphatic language: “There have, since I £at here, been several (bills) to fix boundaries, when a right to the freehold of the soil has been incidental. But I have seen such frightful consequences arising from them, that I think these suits are very far from deserving encouragement. They originally came into this court under the equity of preventing multiplicity of suits; yet in those eases I have observed that they have been sometimes attended with more expense than if all the suits which they had apprehended, and which they were brought to prevent, had actually been tried at law:” Wake v. Conyers, 1 Eden 331; 2 Cox 360. It was established as a principle in that case, which has been maintained and followed ever since, that the court has no jurisdiction [280]*280to fix the boundaries of legal estates, unless some equity is super-induced by the act of the parties: 2 Leading Cases in Equity 318. It is maintained, however, by the learned counsel for the appellants, that the Acts of 1858 and 1859 carry the jurisdiction of a court of equity in Philadelphia county beyond that usually exercised by the Court of Chancery in England on the subject of disputed boundaries, and it is frankly conceded that there a mere dispute as to the dividing line of two adjoining estates, not held under the same title, where there is no especial equity affecting the defendant, would not give jurisdiction. Unless these acts are to have this construction, the appellants have no ground to stand upon. No special equity to affect the defendants is alleged or pretended. It was a very grave constitutional question, though it must now be regarded as solemnly settled by this court, whether the legislature can constitutionally transfer any part of the common-law jurisdiction heretofore enjoyed and exercised by courts and juries .to a court of chancery. By Art. V., sect. 6, of the Constitution, it is indeed provided, that “ the legislature shall vest in the Supreme Court and the several Courts of Common Pleas, such powers to grant relief in equity as shall be found necessary, and may from time to time enlarge or diminish their powers, or vest them in such other courts as they shall judge proper for the due administration of justicebut this section must be read along with Art. IN., sect. 6, in which it is also declared, “ that trial by jury shall be as heretofore, and the right thereof remain inviolate;” an article which has a very special declaration of sanctity annexed to it by the people. If the legislature can transfer a part, they can the whole of the jurisdiction in civil cases to courts of equity, and thus practically abolish trial by jury entirely in these cases. This court has accordingly held that the Act of April 22d 1856, Pamph. L. 502, giving a tenant in common in coal or iron mines, whose right is denied or resisted, the power to apply by petition in equity to the Court of Common Pleas of the county where the lands lie, and investing such court with the jurisdiction to adjudicate and determine the rights of the several parties according to the course of a court of chancery, conflicts with the constitutional right of the citizen to have controverted questions of fact in common-law causes decided by a jury, and that it is applicable only to cases in which the rights of the complainants are equitable: North Pennsylvania Coal Co. v. Snowden, 6 Wright 488. “It is true,” said Mr. Justice Strong, “that the legislature are authorized to vest in the courts such powers (beyond those enumerated) to grant relief in equity as shall'be found necessary, but this must be understood as referring to powers in equity cases, in that class of cases of which chancery had jurisdiction. Such an understanding is necessary to make the different parts of the constitution consistent with each other, and to give effect to all. [281]*281It cannot mean that the legislature may confer upon the Supreme Court and the Courts of Common Pleas the power of trying according to the course of chancery, any question which has always been triable according to the course of law by a jury. If it can, then an ejectment founded solely on legal title, an action of debt on a bond, or a replevin, or an action of trespass may be sent into chancery, all contested facts in it to be decided by the judge, and the intervention of a jury be unknown. Then what has become of the constitutional right of the citizen ? Such a doctrine would startle the people of this Commonwealth, and justly, for it would deprive them of one of their most valuable privileges. No power in our government can take from the litigant the right to have his case tried by a jury, substantially in the mode and with the same effect as that which belonged to jury trials in similar cases, when the Constitution of 1776 was adopted. What is law and what is equity, is a judicial question. It belongs, therefore, exclusively to the judiciary. But'were it admitted that the legislature could authoritatively convert a legal right into an equitable one, a court of equity could not, as such, enforce it. The judiciary, no more than the legislature, can deny to any litigant the right of trial by jury, in a ease appropriate to such a mode of trial. The Act of 1856, then, is applicable only to cases in which the rights of the complainants are equitable. It would conflict with the Constitution, if it had a more extended application.”
I have made so full an extract from this opinion, because, though spoken of the Act of 1856, every word of it applies to the Act of 1858 and 1859, now in question. We do not hold these acts to be unconstitutional. It is not necessary to do so. We are bound to give them such a construction as will not conflict with the constitution; and that must necessarily be that they are confined in their ti-ue intendment to cases which are properly the subject of equitable jurisdiction. That jurisdiction must first be shown to exist, before the remedial provisions of the act can apply. The Act of 1858, in so many words, confers upon the Supreme Court and the Court of Common Pleas of Philadelphia county respectively, “ all and singular the jurisdictions and powers of a court of chancery in all cases of disputed boundaries between-adjoining and neighboring lands within the said county, whether the parties owning the same, hold or claim to hold under the same or different titles.” The supplement of 1859 declares, “that the jurisdiction and powers given, by the act to which this act is a supplement, to the courts therein named, shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining and neighboring lands in the county of Philadelphia, when such boundaries are or shall have become confused or rendered uncertain, either by lapse of time, by natural causes, or by the act, neglect or default of any present or former owner [282]*282or occupant thereof.” Under both acts, as will be seen, it is only the jurisdiction of a court of chancery which is conferred. We must first determine whether that jurisdiction exists — rather, perhaps, what it is in regard to the subject-matter. No doubt, where there are grounds of equitable interposition, the legislature may, in the words of the constitution, “ enlarge or diminish” the powers of the court; and this they have done in these acts. But the fundamental principle, which requires that there should be an equity in its technical sense in order to confer the jurisdiction, they have not attempted to disturb by anything therein expressed. Upon the bill and plea, upon which this cause was heard and decided in the court below, there was no ground of equitable interposition alleged or pretended. None such has been advanced in this court. The plea, which must be accepted as true, objects to the jurisdiction, because the matter or thing in dispute is the title to certain marsh lands or flats, which are an alluvion or accretion to the fast lands formed by deposit in the river Delaware; and the bill and draft annexed exhibit the same fact. Indeed, the lands of the plaintiffs and defendants — all riparian proprietors on the river — are not even “ adjoining and neighboring” lands, within the words of the acts; and it is only by the protraction of the lines of their respective tracts, according to a principle claimed by the plaintiffs, through the marsh or flats to low-water mark that they infringe on each other, and thus come in conflict. How their lines are to be protracted and run, depends upon a pure question of law; it has not a spark of equity in it. It can and must be determined by a court and jury, in an action of trespass or ejectment, like any other question of legal title. Nor does there exist any insuperable difficulty in the way of such remedies at common law, so as to render them inadequate and justify an appeal to the jurisdiction of a court of equity. It is alleged in the bill, although denied in the plea and answer, that there never has been, and in the nature of the subject could not be, exclusive and adverse enclosure and possession of land under the periodical dominion of the tide. Be it so. Constructive possession, where there is no actual possession, is adjudged to be in him in whom is the legal and rightful title. Either party, by the simple expedient of a fence or a wall in assertion of his right, may put his adversary to the necessity of either acquiescing in or controverting it. It is surely no answer to say, in order to give a court of equity jurisdiction, that this would be difficult and expensive to keep up. We must leave these parties, therefore, to their legal remedies, for they have none but legal rights, however convenient the appellants may think it to have a commission out of chancery, at joint expense, to decide the question in dispute as to the course of the lines, to run them by actual survey, and to make partition [283]*283of the undivided lands between the parties. A court of equity, as has been said, may do great things, but not all things.
Decree affirmed and appeal dismissed at the costs of the appellants.
Thompson, C. J.
— I was not present at the argument, but fully agree to the principle decided in the above case.