Mr. Justice Trunkey
delivered the opinion of the court
Prior to 1818. statutes had been enacted providing for application, survey and grant of islands in the river Susquehanna. They were not subject to appropriation at the prices paid for other lands, but the value of each was to be ascertained by the board of property, and in no instance to be sold for less than eight dollars by the acre. What shall be deemed an island for purpose of sale by the Commonwealth, is defined in the statute ; it must “ be at least four feet high above common low water, containing at least forty perches of ground exclusive of rocks, be susceptible of cultivation in grain or esculent roots in common seasons, by their growing and becoming [576]*576maturely ripe.” Sand or gravel burs, or accumulations of mud, which do not come under said description, shall be a part of the public highway. No warrant of survey shall be for a less quantity than the whole of the island — the sale and grant cannot be limited to the ground, exclusive of rocks, susceptible of cultivation in grain or esculent roots.
The Act of April 11th, 1848, provided for application, survey and grant of a quantity not exceeding one hundred acres of the bed of any navigable river, beginning at a point designated in the application, at low water mark on the bank of said river and pursuing the course of said river at low water mark to a designated point, thence at right angles across said river to low water mark, thence along the shore at low water mark to a point opposite the place of beginning. A warrantee under this Act has the “right to dig and mine for iron, coal, limestone, sand and gravel, fire-clay and other minerals,” but he takes no title to the soil or sand or anything in the bed of the river. His grant is confined within the limits of low water mark, and this recognizes the principle that a grant of land by the Commonwealth, bounded on one side by a large navigable river, vests in the grantee the entire land to the line of low water mark. The riparian owner has ‘the right of soil to ordinary low water mark of the river, subject to the public right of passage for navigation, fishing and other proper use of the highway to the mark of ordinary high water: Wood v. Appal, 63 Pa. St., 210. Between high and low water mark, the title of the riparian owner is qualified, being subject to the right of navigation over it and improvement of the stream as a highway: Wainwright v. McCullough, Id., 66. In that case it was said that the land lying between the low water line of the island as fixed by the commissioners, and the top of the islandbank.isa part of the island. And in Hartley v. Crawford, 32 P. F. S., 478, it was again remarked that the riparian lights of the owner of an island attached to the land between the bluff bank to which the survey came and the ordinary low water mark; and subject to the rights of the public, the owner of the island might use the sandy or pebbly beach or shore. Although the principle may not have been necessary to the decision in Wainwright v. McCullough, or in Hartley v. Crawford, and therefore not authoritatively ruled, its assertion shows how naturally it comes into view in considering the bounds of au island as defined in the statutes providing for sales of that kind of land. No difference is made in the laws providing for surveys and sales of land, respecting the shore of the main land and the shore of islands. It would be difficult to conceive a reason for a difference. In either case, the liver being a bound, the grantee takes to low water mark, sub[577]*577ject to the right of the public to use the river ns a highway, but as to all below the surface, without clog or qualification. If the title to any of the land remained in the Commonwealth, a grant of the minerals under the bed of a river, within the limits of low water mark, would be liehl as strictly within said limits as if all the land bordering on tbe river bad been disposed of to purchasers. So also if the Act of 1848 does not apply to minerals under islands in tbe river Susquehanna, then owned by tbe Commonwealth, said islands embrace all within the limits of low water mark.
The Act of 1848 contained no repealing clause, and repealed no prior statute by implication, unless there was such positive repugnancy between its provisions and the prior statute, that they cannot stand together or be consistently reconciled. It is general, applying to all navigable rivers, and the statutes relating to sale of islands in the river Susquehanna apply to no other; but the repugnancy between a local statute anda subsequent general statute must be as strongly marked, to say the least, to repeal by implication, as if both were general: Sifred v. Commonwealth, 104 Pa. St., 179; City of Harrisburg v. Sheck, Id., 53. No mention is made of islands in tbe Act of 1848. On its face, the warrantee is entitled to the minerals under the bed of the river, without exception. Of course, it was not intended that he should have a right to dig and mine and carry away tbe minerals in the islands which had been already granted. The presumption is against an intent to invade vested rights of property. Then, the statute' must be so construed that the bed of tbe river between the shores of tbe main land, shall not include land, called islands, which bad been previously granted to purchasers under tbe laws of the state. It seems equally clear that by like construction, it shall not include islands which, under prior existing laws, were subject to application and sale. Those laws provided for the sale of land, without exception of any part thereof; the Act of 1848 provided for the sale of minerals under a river bed — under land covered with water. The purpose of the former was a sale of the entire land ; of the latter, a sale of only the minerals under tbe surface. Title to the surface remains hi the Commonwealth as to all grants under the Act of 1848. There is no intent that said Act shall apply to any land or island which were subject to sale under other laws. We are not convinced that the court erred in any of tbe rulings set forth in the first six specifications of error.
Nor was there error in the instructions made the subject of complaint in tbe seventh and eighth specifications. The jury were instructed that they could find for the plaintiff for the hind described in the writ, or so much thereof as they believed, [578]*578under the evidence, was not in the bed o£ the river in 1848. They were told very plainly that it was incumbent on them to find how much of the thirty-seven acres described in the writ existed in 1848, and that the plaintiff could recover no more than existed at that date. This related to the minerals —there was no controversy about the surface. The defendants particularly complain of the remark : “You have a right, if you find for the plaintiff at all, to find for the whole amount described in the writ, to wit, thirty-seven acres ; ” and insist that there was no testimony to justify such instruction.
By actual survey the island contains forty-seven acres and one hundred and fifty perches within the limits of low water mark; twenty-three acres being four feet above low water. In 1870 it contained thirty-seven acres. There is no evidence of a survey in 1848, or near that time, and it seems difficult to find proof of the quantity at that date.
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Mr. Justice Trunkey
delivered the opinion of the court
Prior to 1818. statutes had been enacted providing for application, survey and grant of islands in the river Susquehanna. They were not subject to appropriation at the prices paid for other lands, but the value of each was to be ascertained by the board of property, and in no instance to be sold for less than eight dollars by the acre. What shall be deemed an island for purpose of sale by the Commonwealth, is defined in the statute ; it must “ be at least four feet high above common low water, containing at least forty perches of ground exclusive of rocks, be susceptible of cultivation in grain or esculent roots in common seasons, by their growing and becoming [576]*576maturely ripe.” Sand or gravel burs, or accumulations of mud, which do not come under said description, shall be a part of the public highway. No warrant of survey shall be for a less quantity than the whole of the island — the sale and grant cannot be limited to the ground, exclusive of rocks, susceptible of cultivation in grain or esculent roots.
The Act of April 11th, 1848, provided for application, survey and grant of a quantity not exceeding one hundred acres of the bed of any navigable river, beginning at a point designated in the application, at low water mark on the bank of said river and pursuing the course of said river at low water mark to a designated point, thence at right angles across said river to low water mark, thence along the shore at low water mark to a point opposite the place of beginning. A warrantee under this Act has the “right to dig and mine for iron, coal, limestone, sand and gravel, fire-clay and other minerals,” but he takes no title to the soil or sand or anything in the bed of the river. His grant is confined within the limits of low water mark, and this recognizes the principle that a grant of land by the Commonwealth, bounded on one side by a large navigable river, vests in the grantee the entire land to the line of low water mark. The riparian owner has ‘the right of soil to ordinary low water mark of the river, subject to the public right of passage for navigation, fishing and other proper use of the highway to the mark of ordinary high water: Wood v. Appal, 63 Pa. St., 210. Between high and low water mark, the title of the riparian owner is qualified, being subject to the right of navigation over it and improvement of the stream as a highway: Wainwright v. McCullough, Id., 66. In that case it was said that the land lying between the low water line of the island as fixed by the commissioners, and the top of the islandbank.isa part of the island. And in Hartley v. Crawford, 32 P. F. S., 478, it was again remarked that the riparian lights of the owner of an island attached to the land between the bluff bank to which the survey came and the ordinary low water mark; and subject to the rights of the public, the owner of the island might use the sandy or pebbly beach or shore. Although the principle may not have been necessary to the decision in Wainwright v. McCullough, or in Hartley v. Crawford, and therefore not authoritatively ruled, its assertion shows how naturally it comes into view in considering the bounds of au island as defined in the statutes providing for sales of that kind of land. No difference is made in the laws providing for surveys and sales of land, respecting the shore of the main land and the shore of islands. It would be difficult to conceive a reason for a difference. In either case, the liver being a bound, the grantee takes to low water mark, sub[577]*577ject to the right of the public to use the river ns a highway, but as to all below the surface, without clog or qualification. If the title to any of the land remained in the Commonwealth, a grant of the minerals under the bed of a river, within the limits of low water mark, would be liehl as strictly within said limits as if all the land bordering on tbe river bad been disposed of to purchasers. So also if the Act of 1848 does not apply to minerals under islands in tbe river Susquehanna, then owned by tbe Commonwealth, said islands embrace all within the limits of low water mark.
The Act of 1848 contained no repealing clause, and repealed no prior statute by implication, unless there was such positive repugnancy between its provisions and the prior statute, that they cannot stand together or be consistently reconciled. It is general, applying to all navigable rivers, and the statutes relating to sale of islands in the river Susquehanna apply to no other; but the repugnancy between a local statute anda subsequent general statute must be as strongly marked, to say the least, to repeal by implication, as if both were general: Sifred v. Commonwealth, 104 Pa. St., 179; City of Harrisburg v. Sheck, Id., 53. No mention is made of islands in tbe Act of 1848. On its face, the warrantee is entitled to the minerals under the bed of the river, without exception. Of course, it was not intended that he should have a right to dig and mine and carry away tbe minerals in the islands which had been already granted. The presumption is against an intent to invade vested rights of property. Then, the statute' must be so construed that the bed of tbe river between the shores of tbe main land, shall not include land, called islands, which bad been previously granted to purchasers under tbe laws of the state. It seems equally clear that by like construction, it shall not include islands which, under prior existing laws, were subject to application and sale. Those laws provided for the sale of land, without exception of any part thereof; the Act of 1848 provided for the sale of minerals under a river bed — under land covered with water. The purpose of the former was a sale of the entire land ; of the latter, a sale of only the minerals under tbe surface. Title to the surface remains hi the Commonwealth as to all grants under the Act of 1848. There is no intent that said Act shall apply to any land or island which were subject to sale under other laws. We are not convinced that the court erred in any of tbe rulings set forth in the first six specifications of error.
Nor was there error in the instructions made the subject of complaint in tbe seventh and eighth specifications. The jury were instructed that they could find for the plaintiff for the hind described in the writ, or so much thereof as they believed, [578]*578under the evidence, was not in the bed o£ the river in 1848. They were told very plainly that it was incumbent on them to find how much of the thirty-seven acres described in the writ existed in 1848, and that the plaintiff could recover no more than existed at that date. This related to the minerals —there was no controversy about the surface. The defendants particularly complain of the remark : “You have a right, if you find for the plaintiff at all, to find for the whole amount described in the writ, to wit, thirty-seven acres ; ” and insist that there was no testimony to justify such instruction.
By actual survey the island contains forty-seven acres and one hundred and fifty perches within the limits of low water mark; twenty-three acres being four feet above low water. In 1870 it contained thirty-seven acres. There is no evidence of a survey in 1848, or near that time, and it seems difficult to find proof of the quantity at that date. The defendants’ counsel truly say, that “ the highest guess of any witness did not put the extent of the island in 1848 above twenty-five acres, sand bars, gravel bars and all.” Although the witnesses were intelligent and credible as to facts which they remembered, their guessing as to quantity was exceedingly wild, and the jury must have rested mainly upon their description of the island, in connection with the surveys, to ascertain the quantity. By noting the testimony of a few it will be seen how fanciful were the estimates of quantity, and that some had recollection of the appearance of the island for years prior to 1848. Dr. Ingham who made the surveys of the river bed in that year, at a very low stage of water, noticed nothing more where the island now is, than a gravel bar, with willows and a few sprouts of buttonwood growing thereon ; not over five acres, probably less ; it was quite a small bar compared with what he has seen it within a year or two, “quite a trifle both in height and extent, every way different.” Another witness called by defendants, says that in 1848, “it was a gravel bar with some willows on the lower end of it, on the lower corner; it might have contained three or four acres at ordinary low water mark; ” and not a foot of it was capable of cultivation. He also thinks the island did not change very much, except the west bank, and lie did not notice the increase until a very few years back. He does not think the island is very much larger now than it ■was in 1848, only there is soil on the lower end of it. That witness was familiar with this island from his boyhood. A -witness called by the plaintiff says that in 1882, maple-brush, willows, birch, grape-vine, and woods of different kinds were ^growing on the island; there were maple trees on it five or six ■.inches through, an ice freshet killed nearly all the brush, but it ,grew up again; thinks there were twenty acres in it, and that [579]*579it has not changed since 1848, except that it lias made a little at the upper end, quite a little on the lower end, considerable towards the west side, and is some higher. Another witness says that in 1848 the east side of the island seemed pretty-much the same as now, there is a little more gravel beach on the upper end, and a little more on the lower end, than there was then ; otherwise it seems to be about the same. Such is the pith of the testimony of numerous witnesses, and it was for the jury. The land described in the writ is about three-fourths of the quantity now in the island, and the jury might infer from the testimony that there was so much in 1848.
Judgment affirmed.