C. J. Agnew
delivered the opinion of the court, January 6th 1876.
The case below was a scire facias sur municipal claim of the city of Erie against two water-lots, the property of the late Charles M. Reed, situate in the bay of Presque Isle, for the expense of maintaining a forty-feet causeway laid out in a water extension of State street, of one hundred feet wide, lying between those two lots, from Front street on the shore, to the canal basin pier in the bay, a distance of about twelve hundred feet. The claim, with interest, as found by the jury, was $4431.71. This claim is made under the ordinary powrnr of the city to grade and pave and curb streets at the expense of the adjoining lot-owners.
Two principal questions have been made against the power of the city to charge and collect this expense; first, an alleged want of municipal jurisdiction in the city over the water or bay, in which the lots lie; and second, a want of a special power to make the assessment against the water-lots. Perhaps it would be difficult to deny a general municipal jurisdiction over the structures in the bay in view of the following acts: The Act of 15th April 1834, Pamph. L. 520, extending the bounds of the borough of Erie northward thirteen hundred-feet into the bay of Presque Isle, and conferring power upon the borough and council to enact ordinances for the preservation of the canal basin, then being erected in the bay, and the pier and all bridges, wharves, appendages and constructions therewith connected, and for regulating their use: The Act of 14th April 1851, Pamph. L. 631, incorporating into a city the borough of Erie as the same extends and is incorporated, and continuing in force all and singular- the Acts of Assembly respecting the borough and its ordinances and by-laws, rules and regulations: The Act of 2d April 1860, Pamph. L. 611, authorizing the city to make such rules and regulations as it deems proper and necessary as to the use and control "of the causeway extending into the bay and public dock connected therewith, and to make charges for the use thereof: And the Act of May 1st 1861, Pamph. L. 614, the 6th section of which provides for dredging the bars in the channel at the harbor of Erie, and for levying a tax to be applied to this purpose and for none other.
[352] But it is unnecessary to decide upon the power of the city over these subjects, or its extent, as we are of the opinion there is no special power possessed by the city to charge the expense of macadamizing this causeway through the water, to or against the adjacent water-lots, lying forty feet distant from the causeway on each side along the one hundred feet wide water-way extending from State street into the bay. The power' of the city to grade, pave, and macadamize streets is found in the first section of the Act of May 1st 1861, Pamph. L. 614, which supplied and repealed former laws. There are various changes since, but they do not touch the matter before us. This act authorizes the city “ to cause to be graded, paved, macadamized, repaired and otherwise improved, any public street or part thereof, which is now, or may hereafter, be laid out and opened in said city, and have the said street, or part of street, set with curb-stone;” and to provide by ordinance “for the levy and collection of the costs and expense of work and materials used therefor from the owners of property bounded by, and abutting on said street, by an equal assessment on said property in proportion to the number of feet the same fronts on said street or part of street.” It is evident that these provisions are intended to apply to ordinary streets or highways. The woi’d “street,” as generally understood, means a public highway in a town between houses or lots for travel of all persons, on foot or on horseback, or in carriages. It is a way on land, and hence it can be laid out, opened, graded, paved, macadamized, curbed, ditched, and drained. These are the special characteristics of land-ways in a town, but in no sense can it be said they apply to a water-way in the lake, running between water-lots, twelve hundred feet out in the bay. Such a water extension is not a highway which can be laid out and improved under the act. It is only a water space between lots running from the shore of the bay, having a depth of ten or more feet, incapable of travel in a proper sense. It can only be navigated in boats. It cannot be graded to any line of ascent or descent. The unstable water comes to a level in the calm, to be tossed about and ruffled by the winds in a storm. It cannot be paved, macadamized, or set with curb-stone. It might be filled up with a costly structure of piles or stones ; and this is the very wrong committed by applying to this water-way the provisions made for ordinary streets. The legislature did not in this covert way, by this section, intend to confer a power to build costly structures at the expense of the lots lying under water, for the uses of commerce. The powers conferred were for land travel, not for causeways from the land into the bosom of the bay, and for docks, piers and basins, where vessels may lie and load and unload for the purposes of lake commerce.
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C. J. Agnew
delivered the opinion of the court, January 6th 1876.
The case below was a scire facias sur municipal claim of the city of Erie against two water-lots, the property of the late Charles M. Reed, situate in the bay of Presque Isle, for the expense of maintaining a forty-feet causeway laid out in a water extension of State street, of one hundred feet wide, lying between those two lots, from Front street on the shore, to the canal basin pier in the bay, a distance of about twelve hundred feet. The claim, with interest, as found by the jury, was $4431.71. This claim is made under the ordinary powrnr of the city to grade and pave and curb streets at the expense of the adjoining lot-owners.
Two principal questions have been made against the power of the city to charge and collect this expense; first, an alleged want of municipal jurisdiction in the city over the water or bay, in which the lots lie; and second, a want of a special power to make the assessment against the water-lots. Perhaps it would be difficult to deny a general municipal jurisdiction over the structures in the bay in view of the following acts: The Act of 15th April 1834, Pamph. L. 520, extending the bounds of the borough of Erie northward thirteen hundred-feet into the bay of Presque Isle, and conferring power upon the borough and council to enact ordinances for the preservation of the canal basin, then being erected in the bay, and the pier and all bridges, wharves, appendages and constructions therewith connected, and for regulating their use: The Act of 14th April 1851, Pamph. L. 631, incorporating into a city the borough of Erie as the same extends and is incorporated, and continuing in force all and singular- the Acts of Assembly respecting the borough and its ordinances and by-laws, rules and regulations: The Act of 2d April 1860, Pamph. L. 611, authorizing the city to make such rules and regulations as it deems proper and necessary as to the use and control "of the causeway extending into the bay and public dock connected therewith, and to make charges for the use thereof: And the Act of May 1st 1861, Pamph. L. 614, the 6th section of which provides for dredging the bars in the channel at the harbor of Erie, and for levying a tax to be applied to this purpose and for none other.
[352] But it is unnecessary to decide upon the power of the city over these subjects, or its extent, as we are of the opinion there is no special power possessed by the city to charge the expense of macadamizing this causeway through the water, to or against the adjacent water-lots, lying forty feet distant from the causeway on each side along the one hundred feet wide water-way extending from State street into the bay. The power' of the city to grade, pave, and macadamize streets is found in the first section of the Act of May 1st 1861, Pamph. L. 614, which supplied and repealed former laws. There are various changes since, but they do not touch the matter before us. This act authorizes the city “ to cause to be graded, paved, macadamized, repaired and otherwise improved, any public street or part thereof, which is now, or may hereafter, be laid out and opened in said city, and have the said street, or part of street, set with curb-stone;” and to provide by ordinance “for the levy and collection of the costs and expense of work and materials used therefor from the owners of property bounded by, and abutting on said street, by an equal assessment on said property in proportion to the number of feet the same fronts on said street or part of street.” It is evident that these provisions are intended to apply to ordinary streets or highways. The woi’d “street,” as generally understood, means a public highway in a town between houses or lots for travel of all persons, on foot or on horseback, or in carriages. It is a way on land, and hence it can be laid out, opened, graded, paved, macadamized, curbed, ditched, and drained. These are the special characteristics of land-ways in a town, but in no sense can it be said they apply to a water-way in the lake, running between water-lots, twelve hundred feet out in the bay. Such a water extension is not a highway which can be laid out and improved under the act. It is only a water space between lots running from the shore of the bay, having a depth of ten or more feet, incapable of travel in a proper sense. It can only be navigated in boats. It cannot be graded to any line of ascent or descent. The unstable water comes to a level in the calm, to be tossed about and ruffled by the winds in a storm. It cannot be paved, macadamized, or set with curb-stone. It might be filled up with a costly structure of piles or stones ; and this is the very wrong committed by applying to this water-way the provisions made for ordinary streets. The legislature did not in this covert way, by this section, intend to confer a power to build costly structures at the expense of the lots lying under water, for the uses of commerce. The powers conferred were for land travel, not for causeways from the land into the bosom of the bay, and for docks, piers and basins, where vessels may lie and load and unload for the purposes of lake commerce.
Though local jurisdiction probably might be exercised for proper purposes connected with the city, it is not to be forgotten that as [353] the municipal power extends outward over the water it meets a high and superior jurisdiction in the United States, whose powers extend to the great inland seas as well as to the ocean, and that the general government habitually exercises the power over breakwaters, piers, lighthouses and other structures necessary for the protection of commerce. It is therefore hardly to be supposed the legislature intended to carry the ordinary powers of the city over streets out into a new expanse so widely different, where it might possibly conflict with some general'power of the national government. On the contrary, when jurisdiction is intended and powers conferred over the structures in the bay, we find express language used, and the powers carefully guarded; as will be seen in the Acts cited, of 1834 and 1860, for- the preservation, use, and control of these structures. If the power should be inferred from the Act of 1861, the owners of water-lots might be bankrupted by causeways laid out from the end of every street, for opposite to each a water-way is left. A power so fraught with danger must be conferred in clear terms, and not left to a vague inference. The right of private property is too sacred, and too carefully guarded by the Constitution to be blown away by any loose or equivocal utterances. The doctrine of local taxation for benefits conferred by public improvements, beginning in a modest way, for purposes of real utility, was found advancing by stealthy steps and unobserved, until an impression began to prevail that private property had no protection against public needs. This court has been compelled to meet and check this dangerous advance, in the cases of Hammett v. The City of Philadelphia, 15 P. F. Smith 146, and Washington Avenue, 19 Id. 352. But, notwithstanding this check, this doctrine of local taxation for benefits received, had reached a perilous advance sanctioned by many laws and decisions. We may now travel for miles in the rural districts of large cities, where broad paved and curbed streets of the most costly kinds have been paid for at private expense, under arbitrary exactions The power has become flagrant, often engulphing the entire value of the property of small landholders. Speaking for myself, I believe no exercise of legislative power needs constitutional guards more than this, and I regret it was not thought of in the recent convention. If the little all of men of moderate means can be taken to gratify a taste for expensive improvements, or the mere desires of the more wealthy, or to fill the ravenous maws of contractors and public jobbers, on the pretence of public right, such persons had better flee from large towns and cities to places of safety far away from these oppressions.
We think the court erred in negativing all the points of the defendants. Judgment reversed.