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6. So it was determined in the aflirmative. The bill from the House of Representatives, entitled
• An act incorporating the Whitestown Manufacturing Company,' was read the third time, and
Resolved, That this bill pass.
An act enabling the Governor to incorporate a company for making an artificial road from the state line, near the town of Emmetsburg, in the state of Maryland, through Waynesburg, Greencastle and Mercersburg, to intersect the Chambersburg and Bedford turnpike road, at or near the east end of M-Connelsburg,' was read the third time, and
Resolved, That this bill pass.
Ordered, That the clerk return said bills to the House of Representatives with information that Senate have passed the same, the former without, and the two latter with amendments, in which the concurrence of that house is requested.
On motion of Mr. Reed and Mr. Lowrie,
The Senate resumed the second reading of the resolution from the House of Representatives, relative to the establishment of a district court of the United States, at Pittsburg, postponed for the present on the 19th inst.
The question recurring, Will Senate agree to postpone the original preamble for the purpose of introducing the substitute then offered?
It was determined in the negative, and the original preamble agreed to.
Ordered, That the clerk return said resolution to the House of Representatives, with information that Senate have adopted the same with amendments, in which the concurrence of that house is requested.
On motion of Mr. Frailey and Mr. Shoemaker,
The following resolution was twice read, considered and adopted, to wit.
Resolved, That the Auditor General lay before Senate an estimated statement of the receipts and expenditures for the year 1816; also an estimate or statement, which shall exhibit the probable annual surplus revenue of the commonwealth under the existing laws prior to the present session of the legislature, together with such remarks and observations on the subject as he may deem explanatory of the same.
On motion of Mr. Power and Mr. Lowrie, The following resolution was twice read, considered and adopted, to wit.
Whereas, during the late war with Great Britain, large por
tions of the militia were called into the field, and during the early stages of the war no provision existed by any law of this commonwealth, by which widows and children of those who died in the service other than by wounds, were entitled to any compensation. Therefore,
Resolved, That a committee be appointed to enquire into the expediency of extending the provisions of the 28th section of the present militia law of this commonwealth to all those militia of this state who have been called into the field since the commencement of the late war with Great Britain.
Ordered, That Mr. Power, Mr. Forster, Mr. M-Farland, Mr. Morgan and Mr. Shannon be the committee for the purpose aforesaid.
On motion of Mr. Beale and Mr. Graham,
The amendments by the House of Representatives, to the bill, entitled
• An act for the relief of Isaac Thompson, an old soldier,' read on the 22d inst. were again read, considered and non-concurred in.
Ordered, That the clerk inform the House of Representatives accordingly.
Agreeably to order, The Senate resolved itself into a committee of the whole, Mr. 1. Weaver in the chair, on the bill, entitled
An act authorizing the Governor to appoint commissioners for ascertaining the best route for connecting the eastern and western waters within this commonwealth, and for other purposes."
And after some time, The committee rose and reported said bill with amendments, which were read.
Agreeably to order, The Senate resolved itself into a committee of the whole, Mr. Welles in the chair, on the bill, entitled
• A supplement to the act, entitled, an act to authorize the Governor to incorporate a company to make a lock navigation in the river Schuylkill.'
And after some time, The committee rose and reported said bill with amendments, which were read.
Adjourned until 10 o'clock to-morrow morning.
THURSDAY, January 25, 1816.
Mr. Reed from the committee to whom was referred on the 12th inst. the petition of Samuel M. Reed and others, made report, which was read as follows, to wit.
The committee to whom was referred the petition of Samuel M. Reed on behalf of himself and others, praying that a law may be passed vesting in them the exclusive right to the use of two wells of salt water in the river Connemaugh, RESPECTFULLY REPORT:
That two wells have been sunk in the bed of the river Conne. maugh in the county of Indiana, by Samuel M. Reed and company,
and those under whom they claim, upwards of two hundred teet through a rock. That the said river is a navigable stream, and has been long used as such for boats of thirty tons burden and upwards, and is so recognized, and is so declared by an act of the General Assembly of this commonwealth, passed the 9th day of March 1771. That the said wells are in the bed of the river below the lines of ordinary high water mark, and within the stream when in its best boatable condition. The title to the land on the south side of said river is vested in the said Samuel M. Reed and company, and the water from one of said wells is conducted thereto, across the bed of said river, and a furnace is erected thereon which is now in complete operation. The water from the other well was conducted to the north side, and furnaces erected at great expence on the bank, under an impression that heretofore the same had been vacant and unappropriated. An ejectment was however brought in the court of common pleas of Indiana county, by William Lemar, against the said Samuel M. Reed and others, as well for the land on which the last mentioned furnaces were erected, as for the wells; and upon the trial thereof at September term 1815, there was a verdict and judgment had in favor of the said plaintiff, for the land to the line of ordinary high water mark, agreeably to a diagram filed in said court, and as to the residue for the defendant. The committee further state, that Samuel M. Reed, & Co. and those under whom they claim, were the first who brought into successful operation the manu. factory of salt on that river, that they persevered through difficul. ties almost insurmountable, and expended vast sums of money under dull prospects, before they obtained their object.
The claim of the plaintiff to the property in dispute, was found. ed on a warrant dated the 17th day of April 1773, and a survey made thereon the 21st day of May 1773, which, after having de scribed the courses and distances of the survey from the place of beginning to a certain black oak, two or three perches from the bank of said river, it proceeded down the river describing the courses and distances to the place of beginning. In virtue of this survey, purporting to be bounded on the river, the plaintiff claimed the wells situate as before described.
As your committee conceive, there are important principles of law involved in this subject, which materially affect the rights of this commonwealth, they have thought proper to submit the following remarks:
Although the contest between the above named parties, has been judicially determined before a competent tribunal, yet there be
ing a court of higher resort in the state, the law perhaps may be considered as undecided. It will be seen, that the only question which could occur, is with respect to the real boundary of a person's land, whose survey calls for the river. It was contended on part of the defendant, that the plaintiff's claim did not extend beyond ordinary high water mark; while the plaintiff contended, that his claim extended to extreme low water mark, or to the middle of the river.
The common law of England on this subject, as applicable to that country, is well understood. It has been invariably held and decided, that the subject can only hold to high water mark, unless he holds by royal grant, or prescription, which pre-supposes a grant. The beach below high water mark belongs to the public. Between the highest and lowest wave of the sea, is shore. Haryrave's Law Tracts, page 12 et seq. 2. Johnston, 362. 5. Bac. Abr. 497, 498, 500. Hale de Jure Maris, c. b. 6. Com. Dig. 60.
But it is said, that the Connemaugh river, by the common law of England, is not a navigable stream. By the common law of England, as applicable there, it certainly is not, but as received in Pennsylvania, it is. 66 The uniform idea has ever been that only such parts of the common law, as were applicable to our local situation, have been received in this government." The adoption of a different rule would resemble the unskilful physician, who proscribes the same remedy to every species of disease. 2 Binney 484. It is acknowledged, that in England the criterion by which navigable streams are distinguished, is by the flux and reflux of the tide. All the rivers in which the tide flows and reflows, ar navigable or public streams, and those which are not distinguished by this circumstance, are private or in-navigable. The reasons why a river in England is public, or navigable, is not because the tide ebbs and Hows therein, but because it is in fact capable of navigation; and the flowing of the tide is mere evidence of that fact. From the evidence in that country being uniform, it forms the criterion. 66 But still it is the fact and not the mode of proof upon which the rights of parties depend." And no inconvenience proceeds there from this principle, as there are no streams there, of any consequence, in which the tide does not ebb and flow.
But this distinction is not adapted to our local situation. The ebbing and flowing of the tide, the qualities of salt and fresh water, cannot among us, determine whether a river is navigable or not. 2 Biney. 484. The manifest importance of the large navigable streams in Pennsylvania requires, that the rights of the commonwealth, to apply them to great national purposes should not be abridged. Navigable rivers, like the highway of nations, were intended for public purposes, and not private sources of individual wealth. It is a principle of general law applicable here, that all rivers, of competent size, are public, and are incident to the same rules of navigable streams in England. This principle has been recognized in various acts of assembly, both before and since the revolution, declaring certain rivers to be public high
ways, and among others, the river Connemaugh. If these rivers were private, and the common law of England prevailed, which appropriates them to the use of the riparious owners, a law declaring them to be public highways, would interfere with the rights of such owners, and would be unconstitutional and void. And although many such laws have been passed before and after the adjoining lands were appropriated, their correctness has never been questioned. It would be a ruinous inroad on the good po: licy of the state, to admit a principle that would give to owners of lands bounded by large rivers, the exclusive use of such streams. If a law to that effect could be supposed to exist, it would receive a very rigid construction.
The common law of England gives to the owners of lands adjoining private streams, to the middle of the water. See 4. Burr 2164.° 1 Mod. 105. But there is no law in England or here, which gives such owners to the water's edge, or to law water mark only. All the British authorities concur in giving the riparious owners, if the river is public, only to the line of high water markif private, to the middle of the water. It has never been seriously contended in Pennsylvania, that the laws of England, relative to fresh water, or private streams, are applicable to our large rivers. The consequences which would necessarily follow the doctrine, establish its absurdity. Shall the Delaware, Schuylkill, Susquehanna, Mississippi or Ohio only be considered navigable, where the tide flos? And shall the other parts, because the tide does not flow, be private, and be held by individuals without purchase? For there is no grant in the warrant, in the survey, or in the patent, nor is any grant in any manner alledged. The same law which entitles the owner to hold to the middle of the water, gives him also any islands which may arise. 2 Blac. 261. But it is notoriously otherwise in Pennsylvania. Islands, fisheries, ferries, &c. unquestionably belong to the public.
It would therefore appear, that there is retained in the commonwealth, the right of soil in all rivers in the commonwealth, fit for navigable purposes; and that right is held to the extent necessary for the free and uninterrupted navigation of such streams. As the rivers are enlarged, by an increase of water, the rights of the commonwealth have a correspondent extention when they are ordinarily high, or when in the best condition for that species of navigation, for which they are calculated, the right and ownership of the commonwealth, unquestionably, extends from one edge of the water to the other. And the citizens of the commonwealth have an indisputable right, to pass with their boats and craft, over any and every part of its surface. The right of the commonwealth being thus established, it necessarily excludes the existence of any other-for two different rights, in different persons for the same thing cannot exist at the same time. The owners, therefore, of lands situate on the banks of these streams, as the right of the commonwealth is exclusive, hold only to the line of high water mark. This conclusion is sanctioned by the daily exercise of this right on part of the commonwealth, respecting islands, dams, bridges, fisheries, ferries, sand bars, &c.