author: Agnew, J. —

text:
    Wainwright versus McCullough.
    1. The Allegheny, Monongahela and Ohio rivers are rivers naturally navigable, and have been classed with the Delaware and Susquehanna.
    2. The title of a riparian owner on the Allegheny (it being a navigable stream), since the reservation of islands under the Act of 1785, would not include an island opposite his land, but would extend only to ordinary low-water mark on his own side.
    3. 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.
    4. Between high and low water mark, the riparian owner cannot occupy to the prejudice of navigation, nor place obstructions on the shore without express authority from the state.
    5. The Act of April 16th 1858, “ to establish high and low water lines in the Allegheny,” &e., is not applicable to disputed boundaries between private owners, but for regulating the respective rights of the public and landowners over whose property the right of navigation extends between high and low water marks.
    6. The wrongful diversion of the waters of a navigable river from its bed does not extinguish the title of the state nor add to that of individuals.
    November 1st 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe District Court of Allegheny county: No. 98, to October and November Term 1868.
    This was an action of ejectment, commenced September 16th 1867, by Zachariah Wainwright against Michael McCullough, for “a piece of land in the borough of Lawrenceville, Allegheny county, bounded on the south-westwardly side by the land of the defendant, formerly of Mrs. Elizabeth F. Denny, on the southeastwardly side by the north-westwardly low water line (the low water line next Wainwright’s, formerly Cork’s Island) purporting to have been fixed by commissioners appointed under an Act of Assembly, passed the 16th day of April 1858, entitled * An Act to establish high and low water lines in the Allegheny, Monongahela and Ohio rivers, in the vicinity of Pittsburg, Allegheny county,’ the said low water line beginning at the westwardly line of said piece of land, runs thence, &c.on the north-eastwardly side by Allen street as the same is claimed to be continued in said borough, and on the north-westwardly side by the top of the south-eastwardly bank of Wainwright’s, formerly Cork’s Island, aforesaid.”
    The cause was tried April 2d 1868, before Williams, J.
    The plaintiff gave in evidence a survey, January 81st 1787, of a tract of land to Conrad Winebiddle, on the Allegheny river, Westmoreland county, for 121 acres, &c.; patent dated December 31st 1787, to Winebiddle for the same tract; patent dated February 18th 1803, to James Patterson for 5 acres and 7 perches; also .sundry mesne conveyances vesting in Joseph Wainwright part of the "Winebiddle tract, on the 18th of May 1807; the Patterson tract on the 27th of August 1818; and on the 8th of April 1856, another part of Winebiddle tract, viz., “ all that certain piece of land in Lawrenceville, bounded, &c., by Water street on the north, by Allen street on the east, by the Allegheny Valley railroad on the south, and by other property of said Joseph Wainwright on the ■west.”
    Also the will of Joseph Wainwright, dated January 16th 1866, devising as follows: “To my son, Zachariah Wainwright, all the lot or lots of land on which I now reside. Beginning at a stake on my private road opposite the west corner of land belonging to the heirs of P. Bravo, and on the line that divides my land from Mrs. Denny’s land, and thence along said line to the Allegheny river, and into the river as far as my right extends, and theiiceup the bed of the river to the north corner of my land where it abuts on the street of the said borough of Lawrenceville, thence along the line that divides my land from the borough lots to the north corner of the land belonging to the heirs of P. Dravo, thence along the line that divides my land from the heirs of P. Dravo to the place of beginning, containing about nine acres.”
    He gave evidence that boats in 1839 passed through the channel between the main land and Wainwright’s Island. McCullough’s mill was on the main land; a dam was built in 1845 which caused the channel to fill up, after which boating could not be done through the channel; the channel ran along the island for part of the way and then across to the main land to Denny’s land : there is now no channel at low water; the water runs around the head of the island; there are no water privileges now; there is a solid road, called Allen street, built across to the island.
    The plaintiff then offered in evidence the record of an indictment in the quarter sessions of Allegheny county against McCullough, the defendant, conviction and sentence: offered for the purpose of showing that the defendant, prior to, and at the time of the finding of the indictment, erected and maintained across the channel between Wainwright’s Island and the main or eastern shore, a dam built with logs, which obstructed the navigation thereof. That the channel of the river so obstructed was and had been a navigable highway, prior to the erection of said dam, and that said dam was an unlawful structure, and the defendant was sentenced to remove it.
    Also the record of an action in the District Court of Allegheny county, Joseph Wainwright against McCullough, the defendant, for the purpose of showing that defendant had committed acts of trespass on the land now in dispute, and that the plaintiff recovered damages against him for the same.
    Also to prove that Mr. McCullough, several years ago, arranged with the authorities of the borough of Lawrenceville to bridge and fill up Allen street across the channel to his island, and subsequently at his instance, an Act of Assembly was passed April 12th 1867, authorizing the burgess and town council of said borough to extend Allen, Pike and Covington streets, in said borough, through and across that portion of the river lying between Wainwright’s Island and the main shore, and fill up or embank that portion of said river occupied by the extension of said streets, so as to make a uniform grade, and after the passage of said act, he agreed with the borough authorities, that if they would fill up said channel, that he would pave it at his own expense.
    All these offers were rejected, and several bills of exceptions sealed.
    The plaintiff having rested, the defendant gave in evidence: “ Memorandum of agreement (dated August 12th 1844) between Joseph Wainwright, of, &c., and Michael McCullough, Jr., of, &e. The said Wainwright agrees to give said McCullough, Jr., a good and sufficient deed for what is known as Wainwright’s Island, in the Allegheny river, &c., and containing about seven acres. As also for all the water privileges made by said island that is now in the right of said Wainwright, and the privilege of erecting any mills or machinery between said island and the east shore, with the liberty of using as much of the said shore belonging to Wainwright, as may be between the water and the trees growing along the same, but not. to be construed to abut any dam against any part of Wainwright’s land on the main shore. The consideration for the above deed when made, is, that the said McCullough, Jr., will pay to the said Wainwright, his heirs or assigns, the sum of $100 per year, payable semi-annually, unless the said McCullough shall see proper at any time hereafter to pay to the said Wainwright, his heirs or assigns, the sum of $1666.66, when the said yearly sum of $100 shall cease, and be forever extinguished.” * *
    Also deed between the same parties, dated March 29th 1856, which witnessed: That the said party of the first part, for and in consideration of $1666.66 * * * hath granted, &c. * * unto the said party of the second part, his heirs and assigns, all that certain island or piece of land situate in Allegheny county, &c., in the Allegheny river, known as Wainwright’s Island, and containing about seven acres, be the same more or less — as also, all the water privileges made by said island that is now in right of said Wainwright (and was in him August 12th 1844, and which was agreed to be conveyed by the agreement of that date), and the privilege of erecting any mills or machinery between said island and the east shore, with the liberty of using as much of the said shore belonging to Wainwright as may be between the water and the trees growing along the samS, but not to be construed to abut any dam against any part of Wainwright’s land on the main shore, the said land being the same which was formerly known as “ Cork’s Island,” and which was granted by the Commonwealth of Pennsylvania to George Wallace, by patent dated July 22d A. D. 1806, who with his wife, by their deed dated September 19th A. D. 1806, and recorded, &c., conveyed the same to the said Joseph Wainwright — to have and to hold the said before mentioned island or piece of land, and privileges hereinbefore mentioned, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of the said party of the second part, his heirs and assigns forever. * *
    The plaintiff gave evidence generally for the purpose of showing where the channel between the island and the main land was at the date of the patent to Winebiddle, and subsequently until obstructed and filled by the dam, &c., of the defendant.
    Also, Act of April 16th 1868 (Pamph. L. 326), “ to establish high and low water lines in the Allegheny, Monongahela and Ohio rivers, in the vicinity of Pittsburg, in Allegheny county.”
    The preamble of the act is: “ Whereas the lines of lands on and along the shores of the rivers at and near the city of Pitts-burg, in the county of Allegheny, have never yet been clearly ascertained, and as it is important to the owners of such lands, the persons navigating the waters of, and the corporations adjacent to such rivers, and to all parties interested, to know and have their several rights and privileges in extension and limitation ascertained and defined,” &c. The act required the District Court of Allegheny county to appoint three. commissioners, who, after giving notice of the time and place of their meeting, should “ examine the shores, surveying and marking thereon lines of ordinary low water and high water marks along the rivers Monongahela, Allegheny and Ohio, within the following limits (designating them), * * * and around the shores of all the islands in the rivers aforesaid, and within the limits aforesaid, * * * such lines of low and high water to be laid out along said shores in such manner and position as will most perfectly secure and perpetuate the navigable channels of said rivers, and best promote the safety and convenience of vessels, rafts and persons navigating the same, and as will be most suitable in all respects for the general benefit of the public at large.” The act also required the commissioners to make a correct map of their work, and return it to the District Court, the prothonotary to file it for public inspection, and give notice by publication in newspapers, of the day — to be fixed by the court — when objections would be heard, and after hearing the objections and making alterations, if any should be found necessary, the Court should direct the map to be recorded, and thenceforth it “ shall be taken and allowed for the purposes herein mentioned and contained, and the lines so approved shall forever after be deemed, adjudged and taken firm and stable for the purposes aforesaid.” The act also vested'the riparian right which was in the state in the “ corporations within whose limits the same is or hereafter shall lie.” Also, the record of the appointment of commissioners under the act, with their report and final order of confirmation, June 22d 1861. The defendant further gave evidence by drafts and oral testimony for the purpose of showing the location of his own and plaintiff’s land; the building of defendant’s mill, the character of the channel between the island and the main land, &c., and other matters deemed proper to meet the plaintiff’s case.
    The land claimed by the plaintiff lies between the low water line fixed by the commissioners, which is next the island, and the centre of the old channel as it existed prior to the filling up occasioned by McCullough’s dam, being the portion of land embraced between the high and low water lines of the defendant’s island as fixed by the commissioners.
    The plaintiff submitted ten points, viz.:
    1. By the patent to Winebiddle his title extended to the middle of the channel as it was in December 1787, the Allegheny river then not having been declared a highway.
    2. The act subsequently declaring the river a highway did not divest Winebiddle’s title between the centre of the channel and the low water line on the main shore.
    3. The Act of 1858 and the action of the commissioners could not divest the title of those claiming under Winebiddle to the ground between low water mark and the centre of the channel.
    4. The Patterson patent gave to him and his successors in title, a right, at least to a front on a navigable stream, of which the Commonwealth could not deprive them; the same principle applies to the Winebiddle patent.
    5. The effect, if any, on the rights of the plaintiff of the establishment of lines under the Act of 1858 ceased as soon as the branch was closed up. :
    6. As the river was forced by the acts of the defendant from that part of its channel between the island and mainland, the ground on the plaintiff’s side pertains to him to the centre of the low water channel as it was before the acts of the defendant.
    7. “ The articles of agreement and the deed are to be construed with reference to the circumstances at the time, to wit, the island as an island and the intervening ground to the east shore as the bed of that part of the river, and the privileges or liberties granted continued only as long, at the most, as the island continued an island, the ground between it and the east shore continued to be a part of the river’s bed, and the shore a part of its shore, and when they ceased to be such, the privileges or liberties ceased.”
    8. “ The liberty of using as, much of the shore belonging to Wain wright as may be between the water and the trees growing along the same,” in the article and deed, is restrictive, and confines McCullough within narrower bounds than if the clause had not been inserted.
    9. “ The privilege of erecting any mills, &c., between said island and the east shore,” continued only as long as there was an island on one side of it and a shore on the other; and at most it was only an agreement that McCullough might obstruct that part of the river by erecting “mills,” &c., in it, and Wainwright would not do anything to prevent him from doing so. It cannot be applied to the locus in quo after it ceased, by the acts of the defendant or of the Commonwealth, to be a part of the river and became a part of the main land, at a distance from the river.
    10. If the jury believed, under all the evidence, that that part of the river was filled up by sediment in consequence of the acts of defendant, the plaintiff is entitled to recover to the centre of the low-water channel, as they may find it to have been before the defendant did the acts that occasioned the filling up.”
    The court, after referring to the facts, the Act of 1858 and the proceedings under it, charged: * * *
    “ This ejectment is not brought for any portion of the main land belonging to the plaintiff or his testator, nor for any part of the land embraced between the high and low water lines, as established by the commissioners along the bank or shore of the said main land, nor for any portion of the bed of the channel or stream as laid down and fixed by the commissioners, but the land embraced between the high and low water lines of the defendant’s island, as the same was fixed by the commissioners and established by the decree of this court confirming the same. It seems to me, therefore, that the plaintiff is estopped from claiming any portion of the land embraced within the high and low water lines of defendant’s'island, as thus fixed and established; and that it is too late for him to raise the question whether the land in controversy constituted, at one time, a part of the channel between the island and the main land, and whether it was situated on the main land side of the centre of the island channel. If the Act of Assembly is of a,ny validity, and if the proceedings of the commissioners under it, and the decree of this court confirming the same, are to have any force or effect, they are conclusive upon the rights of the parties. If the Act of Assembly has no validity — if the proceedings under it have no legal force or binding obligation, it is time that the riparian owners and the public understand it. The county has expended a large sum of money in carrying out the provisions of the act for establishing the high and low water lines authorized by it, and as we all know, the riparian owners and the public have acquiesced in and conformed to the lines thus established. If this expenditure has been all in vain, it is time that the community understand it. The very small number of except-ants, not exceeding three or four, shows that the commissioners must have performed their work with judgment and discretion, and to the general satisfaction of the parties interested in it. It seems to me that the riparian owners are hound hy the high and low water lines thus established, and that the plaintiff is estopped from claiming the land in controversy, or of raising the question whether the same was or was not a part of the bed of the channel and situate on the south-eastern or main land side of its centre. And the court instructs the jury that, under the evidence in the case, the plaintiff is not entitled to recover, and that their verdict should be for the defendant. This view of the law renders it unnecessary to consider the numerous points presented by the plaintiff’s counsel, and so far as they have not been answered in the charge, they are refused.”
    The verdict was for the defendant.
    The plaintiff took a writ of error. He assigned for error: the rulings as to evidence — the refusal of his points and the charge of the court.

      T. MacQonnel (with whom were J. MacOonnd and i2. S. Woods), for plaintiff in error. —
    The court was bound to give specific answers to the points: Act of April 15th 1856, § 1, Pamph. 337, Purd. 1284, pi. 2; Wheeler v. Winn, 3 P. F. Smith 122. A grant on a stream not navigable carries the title to the middle of the channel, and a'subsequent law making the stream navigable does not divest the title: Coovert v. O’Connor, 8 Watts 470; Naglee v. Ingersoll, 7 Barr 201; Jones v. Janney, 8 W. & S. 436; 3 Kent Comm. 427, 438; Barclay Railroad and Coal Co. v. Ingham, 12 Casey 194; Scratton v. Brown, 4 Barn. & Cress. 499; Justinian C. C. Lib. 2, Tit. 1, §§ 20, 21, 23; Commonwealth v. Shaw, 14 S. & R. 12. The ground added by alluvion belongs to the riparian owner. If the change of the stream was produced by one of the riparian owners, it would not necessarily continue to be \their boundary: Ball v. Slack, 2 Whart. 508. The Act of 1858 is constitutional: Bell v. Ohio and Penna. Railroad, 1 Grant 106; Erie and N. East Railroad v. Casey, 2 Casey 307; Bonaparte v. Camden and A. Railroad, Baldwin 220; Vattel 112; Burlamaqui 150; Puffendorff 829; Grotius 333; Rhines v. Clark, 1 P. F. Smith 101; Pittsburg v. Scott, 1 Barr 309; Lambertson v. Hogan, 2 Barr 24. Contracts are to be construed in reference to the circumstances at the time they were made: 1 Greenleaf’s Evid., § 287; Stub v. Stub, 3 Barr 254; Philadelphia Life Ins. Co. v. American Ins. Co., 11 Harris 67; Lehigh C. and N. Co. v. Carlin, 3 Casey 439.

      B. F. Lucas (with whom was A. Gr. Lucas), for defendant in error. —
    The erection of the dam was under the joint act of both Wainwright and McCullough, and the accretions arising from it are to be governed by the same rules as to them as natural accretions ; the court could not have given an affirmative answer; any other would have injured the plaintiff, and he therefore could not complain: Deal v. Bogue, 8 Harris 228; Childs v. Digby, 12 Id. 23. The condition of the channel at the date of the deed, not of the agreement, is the time to be considered: Jones v. Johnston, 18 Howard 156; Johnston v. Jones, 1 Black 209. As to the Act of 1858 he cited Parsons v. Winslow, 1 Grant 160. But even if there be defect in defendant’s title, the plaintiff has shown no title at all to the land claimed in the writ, and therefore cannot recover.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

This cause comes before us upon a single but important question. The court below ruled the case upon the effect of the low and high water lines as established by commissioners under Act of 16th April 1858, Pamph. L. 326, which excluded the plaintiff from the land described in his writ, and prevented his recovery. In order to arrive at the legal effect of the lines established by the commissioners under that act, we must ascertain its true purpose; and to reach this, it becomes necessary to examine the navigable character of the rivers Allegheny, Monongahela aqd Ohio, and the rights of the riparian proprietors upon their banks. These rivers are among the largest in the state; larger than the Schuylkill and Lehigh, recognised as navigable in the early history of the province, and have been repeatedly held by name to be rivers naturally navigable, and therefore classed with the Delaware and Susquehanna: Carson v. Blazer, 2 Binney 478; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 79, 80; Hunter v. Howard, 10 Id. 244. Many acts have been passed declaring tributaries of these rivers navigable. But an act perhaps most pertinent to this controversy is that of 8th April 1785, 2 Sm. Laws 317, regulating the taking up of lands within the new purchase, of which the 13th section expressly excepts islands in the Ohio, Allegheny and Delaware. The exception bears directly on the claim of title by the plaintiff to the middle of the stream, under the patent of Conrad Winebiddle, dated December 31st 1787.

Wainwright’s Island, involved in this controversy, lies on the eastward side of the middle thread of the stream, and separated from the eastern shore by a small branch, so that the plaintiff’s title to the middle of the stream, if allowed, would embrace the island. But the reservation of the islands by the Act of 1785, passed before the inception of the Winebiddle title, recognises the navigable character of the Allegheny, and the title can extend only to ordinary low-water mark on the eastern shore of the river.

This being the navigable character of the stream, the rights of the riparian owners are settled by numerous decisions, a few of which may be referred to: Carson v. Blazer, supra; Shrunk v. Schuylkill Nav. Co., supra; Ball v. Slack, 2 Whart. 508; Zimmerman v. Union Canal Co., 1 W. & S. 346; Bailey v. Miltenberger, 7 Casey 37; McKeen v. Delaware Div. Canal Co., 13 Wright 424; Tinicum Fishing Co. v. Carter, 11 P. F. Smith 21, opinion by Sharswood, J., decided last winter at Philadelphia. From these and other cases, it will appear that the absolute title of the riparian proprietor extends to high-water mark only, and that between ordinary high and ordinary low water-mark, his title to the soil is qualified, it being subject to the public rights of navigation over it, and of improvement of the stream as a highway. He cannot occupy to the prejudice of navigation or cause obstructions to be placed upon the shore between these lines, without express authority of the state.

The case of Bailey v. Miltenberger, 7 Casey 37, decided in 1856, doubtless had something to do in turning public attention to the shores of the streams surrounding the city of Pittsburg, which led to the passage of the Act of 1858, for the purpose of defining the low and high water-lines. It referred to the mistaken idea entertained by some proprietors of making ground for their mills, by depositing cinders on the shore between low and high water marks. “ The Allegheny and many other navigable rivers” (says the opinion) “ do not, at the time of low water, occupy over one-third of their bed; and it would be most disastrous to allow every owner to fill out his land to low water-mark.” This state of affairs, for these rivers had been seriously encroached upon at and opposite Pittsburg, no doubt led to the Act of 16th April 1858, Pamph. L. 326. It begins by a recital, “Whereas, The lines of lands on and along the shores at the rivers at and near the city of Pittsburg, in the county of Allegheny, have never yet been clearly ascertained, and as it is important to the owners of such lands, the persons navigating the waters of, and the corporations adjacent to, such rivers, and to all parties interested, to know and to have their several rights and privileges in extension and limitation ascertained and defined; therefore,” &c. The first impression arising from this language might seem to be that the law was intended to ascertain and fix these high and low water lines to end all controversies, private as well as public. But a careful consideration of its purpose and provisions shows that it is not applicable to disputed boundaries between private owners, but was intended to regulate the respective rights of the public and the landowners, over whose property the right of navigation extends between high and low water lines.

The subject itself is incompatible with a regulation of boundaries between landowners, for the bed of the stream belongs to the state, and necessarily lies between and excludes controversy with an opposite owner, while the act itself refers to no other lines than those of low and high water. It exhibits no purpose to define boundaries between private owners running in toward the stream. The boundary adjusted is therefore necessarily between the state and the riparian owner, for low and high water lines on a navigable river can concern no other. owners. This accords with the parties enumerated in the preamble, to wit, — the owners of the lands, the persons navigating the waters, and the corporations adjacent — that is, the cities and boroughs which regulate the landings and ways to and from the rivers. The second and third parties exercise the rights of the public, and therefore are deeply interested in the establishment of the lines of low and high water, but can have no interest in a dispute about boundaries between individuals.

Coming to the duties of the commissioners as set forth in the second section, the law says: — “ Such lines of low and high water to be laid out along said shores aforesaid in such manner and position as will most perfectly secure and perpetuate the navigable channels of said rivers, and best promote the safety and convenience of vessels, rafts, and persons navigating the same, and as will be most suitable in all respects for the general benefit of the public at large.” In the third section they are required not only to hear the parties interested, but to examine experienced hydraulic civil engineers, scientific men and others for the purpose of obtaining accurate information in regard to flowing water in navigable streams, and in regard to the location of the lines aforesaid. Evidently the parties interested are the private owners of the lands extending to the river on the one hand, and the parties navigating and corporations adjacent to the river on the other, while the mere ascertainment of the actual position of a private boundary between owners is inconsistent with the discretion required by the act to be exercised in locating the high and low water lines, so as to preserve the channels of navigation, and promote the safety and convenience of vessels, rafts and persons navigating the same, and for this purpose to call in the aid of scientific men. The effect of the lines as established is thus stated: the lines so approved shall for ever after be deemed, adjudged and taken, firm and stable for the purposes aforesaid.” If we seek for the “ aforesaid” purposes, the act discloses none but those relating to the public interest and that of the riparian owner. Then if we advert to the power of the state over navigable streams, as stated in the authorities cited, we discover that it is plenary over the subject of navigation and the improvement of these natural channels of commerce, while the ownership of the riparian proprietor is qualified between the lines of low and high water. The legislature may, therefore, with great propriety define the bounds of high and low water, by means of a suitable commission, for the purpose of regulating the public right, so as not to conflict with private interests, and to prevent private rights from being exercised to the prejudice of' public interests; for example, to prevent the shores from being filled up with great banks of cinders. But if the intent were to regulate disputed boundaries between private owners, what machinery compatible with the lawful determination of private rights has the legislature provided ? No right of appeal is given as in the case of party-walls and partition fences. And the private right would be determined by commissioners in derogation of the right of trial by jury. Now, without determining whether this is constitutional or not, it is a circumstance against the interpretation of the act in that way. In the case of Wells v. Eox, 1 Dali. 308, we have some analogy to the present question. There it was determined that the feigned issue to be ordered on an appeal from the determination of the regulators of party-walls, could determine only whether the regulators had acted correctly or not, but not the title. Eor the latter purpose an ejectment was considered the proper remedy. Eor these reasons we are of opinion that the commission under the Act of 1858 settled no disputes, and ascertained no boundaries, as between private owners. The effect of this conclusion would be to reverse the judgment óf the court below, but for another difficulty which meets the plaintiff below on the very threshold of his case. By his own showing he had no title to the land described in his ejectment. The writ describes the land claimed by the plaintiff as lying between the low-water line of the island as fixed by the commissioners and the top of the island bank. The land thus described, therefore, is a part of the island and lies westward of the channel or branch which runs between it and the main land. The title of the plaintiff given in evidence was under the Winebiddle patent for the main land lying on the eastern bank of this branch. Thus the channel of the branch which belonged to neither the owner of the main land nor the owner of the island, but was the property of the state, intervened between the land owned by the plaintiff and the shore of the island for which he brought his suit, and effectually cuts off his recovery.

According to the plaintiff’s own showing, this was no case of mere alluvion, or of a river forsaking its bed from ordinary and natural causes. He gave evidence to show; and indeed proved, by many witnesses, that the old channel ran next to the island, and began to fill up after the defendant had built his dam from the island to Denny’s land on the main shore; that the process of filling was accelerated by the abutment built by the defendant above the dam, and was finally consummated by the bridges built across from the main land to the island.

From what has been said of the Allegheny as a river naturally navigable, recognised by statute law and judicial decisions, it is clear that the ownership of its bed between islands and the shore, as well as its main channel, belongs to the state. A wrongful diversion of its waters from its bed does not extinguish the title of the state, or add to that of individuals. This is evident upon principle, and finds an analogy in the decision in Allegheny City v. Reed, 12 Harris 39, holding that after Smoky or Killbuck Island had been swept away by the floods, leaving only a bare sand and gravel bottom, it was the property of the state, and not liable to appropriation as an island.

Having shown no title whatever to the land described in the writ of ejectment, the plaintiff’s case is at an end. And for this reason the bills of exception to the rejection of certain evidence relating to acts of the defendant, his conviction and sentence, the former action of trespass, &c., became immaterial. The plaintiff must recover on the strength of his own title alone.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Thompson, C. J. —

license: Public Domain

text:
    Hill et al. versus Canfield et al.

    1. Objection to a leading interrogatory under a commission should be made before the commission issues.
    2. In trover for lumber, a witness testified that there had been a sudden rise in prices during the season; he might state what was the extent of the rise, and was not confined to the precise time of the conversion.
    3. Owners of lumber appointed an agent to sell it; another man told the agent he had authority to sell, and sold it; the agent could not ratify the sale so as to bind his principals.
    4. Shoup owned timber; Hill falsely asserting that he had authority, from Shoup, sold it to Baum; Shoup afterwards sold to Poor. Poor afterwards, under a belief that Hill had authority, made a settlement with Baum. Meld, that Poor was not estopped from asserting his title against Baum.
    5. A party cannot claim an estoppel arising out of his own or his agent’s misrepresentation or fraud.
    November 1st and 2d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 167, to October and November Term 1868.
    This was an action of trover brought to December Term 1865, by G. W. Canfield and J. B. Poor against Jake Hill, Andrew Jackson, Schuyler Jackson, David Jackson, A. F. Baum, and John Carrier. The suit was instituted to recover damages for the conversion of three rafts of timber containing 16,221 feet. The case was once before in the Supreme Court and is reported in 6 P. F. Smith 454. The timber in question had belonged to John Shoup and William Wilkinson, who brought it to Pittsburg in the spring of 1865; they put it into the charge of Thomas Stephens and authorized him to sell it. Jake Hill, one of the defendants, alleging he had authority from Shoup, one of the owners, sold the timber to Carrier & Baum, two others of the defendants; and about the same time Shoup sold it to the plaintiffs, denying that he had given any authority to Hill to make the sale. Carrier & Baum took possession of the timber, ran it to Cincinnati and sold it.
    On the trial, October 6th 1868, before Mellon, J., Stephens testified that Canfield told him he had contracted with Shoup, who was then in Philadelphia, for the timber at 12 cents per foot, and offered to settle with witness for it; witness declined, telling Canfield he might settle with Shoup on his return., Hill after-wards came to witness and told him that Shoup had authorized him (Hill) to sell the lumber at 12 cents; witness told Hill he ought to get 13 cents. While Hill and witness were talking Baum came forward and said he would give 12J cents; Hill said he could stand 13 cents, and Baum said he would take it. Witness then told Baum to settle with Hill, if he was authorized to sell it he could make it all right as he was responsible. Baum shortly afterwards told witness that Poor was claiming the timber, witness told Baum to go on and settle with Hill. At the time Baum and Hill were dealing, witness told Baum that Poor & Canfield had not bought it.
    Shoup testified that he sold the timber to Poor & Canfield and delivered possession on the evening of October 4th 1865; he had left the timber with Stephens before he went to Philadelphia and authorized him to sell it; when witness sold to Poor & Canfield he understood from Stephens that no sale had been made with his consent: Poor & Canfield had paid witness for the lumber when he delivered it to them. The plaintiffs gave other evidence of their possession of the lumber, of the conversion by the defendants, &c. They then offered to read the deposition of Henry Whately taken in Cincinnati under a commission in which the defendants joined by filing cross-interrogatories. The answer to the second interrogatory was objected to at the trial because the interrogatory was leading. No objection had been made before issuing the commission. For this reason the court overruled the objection and permitted the answer to be read, and sealed a bill of exceptions.
    Charles H. Prescott was examined for the plaintiff as to the price of timber, and testified that there was a sudden rise in the price in the fall of 1865; witness could not tell whether in October or November. Plaintiff then asked, “What was the extent of the sudden rise of which you speak ?” The question was objected to, because no evidence of the rise could be given after October 4th; it should be confined to that time as the date of the alleged conversion. The question was allowed and a bill of exceptions sealed.

      The plaintiffs having closed, Stephens was examined for the defendants: When Shoup came back to Pittsburg he asked how it occurred that they had given Poor a note ■ for 1 cent per foot for his lumber and Shoup one for 12 cents; witness then told Shoup about Hill selling the timber to Baum and saying that Shoup had given him authority. They gave in evidence a receipt as follows :—
    “ Received, of Shoup & Wilkinson, per Jake Hill, Carrier & Baum’s note for $162, at four months, for our interest in three rafts of pine timber, containing 16,221 feet, our interest being 1 cent per foot.
    Poor & Canfield.
    October 2d 1865.”
    They also gave evidence that Baum, on the 29th of January 1866, deposited $2108.52, that being the price of lumber as sold by Hill, to meet two notes, one for $162 and the other for $1946.52. There was evidence tending to show that these notes had been given by Carrier & Baum for the lumber, and had been in the possession of Poor, and at Andrew Jackson’s request had been given up to him, Jackson.
    The plaintiff in rebuttal proved by Shoup that he never gave Hill authority to sell the lumber, and never assented to a sale by Hill; that he told Hill that he would not stand to the sale made by Hill, that Hill then tried to buy it from him, but did not succeed; immediately after the conversation, the two notes were taken up by Jackson, and it was after that Shoup sold the lumber to Poor & Canfield.
    The defendants’ points were:—

      “ 1. If the jury believe that Stephens was authorized by Shoup & Wilkinson to sell the timber in controversy; that he knew the terms of sale of the property by Hill to Carrier & Baum; that he assented to or encouraged Baum to close the bargain upon said terms, which terms were agreed to and complied with by Baum & Carrier, and possession taken in accordance with said terms before the alleged sale to the plaintiffs, it interposes a bar to the recovery of the plaintiffs.
    2. “ If the jury believe that Stephens, the agent of Shoup & Wilkinson, knew of the sale to Carrier & Baum, and assented thereto or encouraged Baum to purchase from Hill, Shoup & Wilkinson would be estopped from contesting the title acquired by such purchase, which estoppel would also apply to the claim of plaintiffs, their vendees, if possession of the timber was taken by Baum & Carrier, before the alleged sale to them.
    “ 3. Fraud on the part of Hill in making the sale, if such existed, would not affect the rights of Carrier & Baum, unless they knew of such fraud, and of this there is no evidence.
    “ 4. If Poor, one of the plaintiffs, offered to sell the timber in controversy to Carrier & Baum, and was afterwards informed of the sale made by Hill, and became a party thereto, by fixing the price to be paid for the interest of himself and Canfield, which was agreed upon, paid to and accepted, the plaintiffs are estopped from asserting any title adverse to that of Carrier & Baum, and cannot recover in this suit.
    “ 5. If Poor, one of the plaintiffs, offered to sell the timber to Carrier & Baum, and was informed of the sale made by Hill to them, and in view of this, stipulated for the price to be paid for their interest, which was paid to and accepted by said Poor, any title which he and his partner Canfield might afterwards acquire from Shoup & Wilkinson, would be held by them as trustees for Carrier & Baum.
    “ 6. If there was any conversion of the timber in controversy, it took place at furthest, when Carrier & Baum got possession of the timber, marked it and commenced to raft and use it as their own, and if this occurred on or before the 3d of October, A. d. 1865, the plaintiffs cannot recover in this action.
    “ 7. If Carrier & Baum delivered to the plaintiffs their note, as the consideration for their interest in the timber, there can be no recovery against them until the plaintiffs return or offer to return said note; and the offer to give said note, or the actual giving of it to Andrew Jackson, is not sufficient, without proof, that he was then the agent of Carrier & Baum, and of this there is no evidence.
    8. “ There being no evidence in aggravation of damages affecting Carrier & Baum, the plaintffs can in no event recover more than the market price of the timber at Pittsburg, at the time it was taken, with interest from the time of the conversion until the present time.”
    The court answered as follows:—
    “ 1 & 2. These points are answered in the affirmative, with this explanation or qualification in regard to the alleged assent or encouragement by Stephens, viz.: If such alleged assent or encouragement is predicated of the evidence to the effect that Hill alleged to Baum and Stephens that he was authorized to sell the lumber, and thereupon, Stephens, on that account, supposing himself to be superseded, declined to take any part in the sale, but informed Baum that Hill was responsible for what he did, and afterwards gave it as his opinion, when interrogated by Baum, that he supposed that Shoup & Wilkinson had not themselves, up to that time, made any sale to Poor & Canfield. This, we instruct you, would not, on Stephens’ part, if he was ignorant of want of authority in Hill, amount to any such assent or encouragement as would divest Shoup & Wilkinson’s title, and transfer it to Baum & Carrier, or constitute a valid sale of property. His assenting to Hill’s acting as agent for Shoup & Wilkinson, upon Hill’s assertion that he had authority so to act, could neither constitute nor ratify a sale by Hill, in which Stephens declined to take part, and his information to Baum, when inquired of afterwards, that, in his opinion, Shoup & Wilkinson had not made any prior sale, when it was true that no prior sale had been made, and his statement that Hill was a responsible party for his acts, could not be construed as such encouragement as would prejudice Shoup & Wilkinson’s title, but was rather calculated to put Baum on his guard as to Hill’s authority to sell.
    “ 3d Point. We cannot instruct in accordance with this proposition. Fraud on the part of Hill, in making the sale, might affect the right of Baum & Carrier, if such fraud as is alleged here did exist, and of this we cannot say there is no evidence. The fraud alleged is that Hill pretended, both to Stephens and Baum, that he was authorized to sell the timber, when, in truth and in fact, he had no authority at all so to do. If this is true, Hill’s sale to Carrier & Baum conferred no title to the property, and the timber could be demanded and recovered of them by the rightful owners. Unless Hill had power from the owners, or their agent, to sell, his professed power and sale under it, would be a fraud, and, unless ratified afterwards by Shoup & Wilkinson, or their authorized agent, with full knowledge of the facts, it would confer no title on Baum & Carrier.
    “ 4th Point. This proposition is true, and is affirmed; but I would say this, in regard to it, if Poor was not deceived by Hill’s assertion of authority, or the implied assertion, by reason of same, and made the settlement referred to, with knowledge of Hill’s defective or doubtful power to sell, and of Carrier & Baum’s doubtful, or disputed title, under it — in other words, with a knowledge of all the facts and circumstances in regard to it, and made the adjustment of his and Canfield’s interest therein with such knowledge, the plaintiffs would be estopped, as herein asserted; but if Poor made this settlement and adjustment of his claim, under the impression induced by Hill, or Baum & Carrier, that it was an actual bond, fide sale to Carrier & Baum, or to Hill himself, when, in fact, it was only a pretended or void sale, then the transaction referred to in this point would not have the effect to estop Poor & Canfield from subsequently purchasing of Shoup & Wilkinson, when they discovered they had been deceived.
    “ 5th Point. Our answer to the 4th point will equally apply to this. The title by them subsequently acquired, would not enure to Carrier & Baum’s benefit, if the settlement and adjustment of his claim was predicated of the representation and belief that Carrier & Baum had actually purchased the property from an authorized agent, when, in fact, their alleged purchase was void. On the other hand, if, as aforesaid, he made the settlement and adjusted his interest in the property with a knowledge of the actual facts and circumstances in regard to Baum & Carrier’s alleged purchase, or in regard to their defective title, he would • be held as a trustee for their use, under his subsequent purchase.
    “ 6th Point. We answer this point in the negative. Taking possession of the property, without removing it, may or may not be a conversion, under the circumstances. There may be a joint possession, and possession without conversion, and even work done on it, without conversion. The conversion of property is when the party takes exclusive possession, and converts it to his own uses and purposes, or withholds it from the owner; and this is a question of fact, which I refer to you, under the evidence. If such conversion by Baum & Carrier took place before sale to, and possession by Poor, as alleged, about the 4th of October, the plaintiffs here cannot recover.
    “ 7th Point. This point we answer in the negative. It assumes facts. The evidence is for you, hut our recollection is, that the notes were not merely offered to, hut received and taken away by Jackson and Hill, both the note previously given in settlement of Canfield & Poor’s interest, and the note to Shoup & Wilkinson, or for their interest; and we do not recollect any evidence of Poor’s agency to receive the note for Shoup & Wilkinson, nor that it had been endorsed by them, or if they were not payees, and whether the payee had endorsed, or any evidence of Poor & Canfield’s or Shoup & Wilkinson’s acceptance of this note, of the larger amount, and how, and for what purpose it was left in that place, although seen at their place, and taken away, according to the testimony of McClure, by Jackson and Hill.
    “ 8th Point. If there is no evidence in the case of aggravation, affecting Carrier & Baum, this point is correct; but whether there is such evidence, under all the testimony, we leave to you. The theory of the defence, in regard to it, is, that Carrier & Baum were bonfi fide purchasers, through Hill, without knowledge of his defective authority, and that the other parties defendants are, besides Hill, the mere employees of Carrier & Baum, for rafting and running their timber. If this is the correct theory of the case, in this respect, then the defendants’ proposition is correct, and the damages are to be ascertained and assessed as therein stated, if the verdict is for the plaintiffs. But the plaintiffs’ theory of the case is different, and, according to it, they allege that there is evidence of aggravation, affecting Carrier & Baum, in this, that they were aware, or had reason to be informed, of Hill’s want of power to sell to them; that the question of his power was the subject of discussion between them and Stephens, and that when their employee and agent, Andrew Jackson, was informed by Shoup, in the presence of Hill, that Shoup & Wilkinson had neither made nor authorized any such sale, Hill admitted this, but said he had authority from somebody else, and Jackson, thereupon, declared he would take the timber, whether or no, and the timber was taken accordingly. All this, and other circumstances of evidence in the case, the plaintiffs allege, manifest a common interest in the defendants, or couple Carrier & Baum with the transaction, which was intended to get the property out of the possession of its rightful owners, by pretence of purchase, at the point of time when Carrier & Baum were buying up all the timber in the market, with a view to enhance the market price. This is the theory of the plaintiffs, in regard to this part of the case, and which theory is correct, is entirely a question for you to determine. But if you find, from the evidence in the case, that it (the plaintiffs’) is true, and the plaintiffs, on the other grounds in the case, are entitled to a verdict, they are entitled, if, in your opinion, the justice of the case demands it, to a higher measure of damages than that which is indicated in this point of the defendants.
    “ The common and ordinary rule for the assessment of damages in actions of trover, is the market price of the article at the time and place of its taking and conversion to the defendants’ use, with interest thereon to the date of the verdict; but in cases where the property has been taken, or procured from the rightful owner through fraud or force, or trickery and deception, to benefit the party taking and converting it, at a time or' under circumstances which deprived the owner from just gains, which he otherwise would reasonably have made by its retention; in such case the rightful owner is entitled, not only to the ordinary market value, at the time and place of its taking and conversion, but also to such additional damag'es as the jury may believe necessary to make him whole, and put him in as good condition as he would have been in had his property remained unmolested. Whether this is_ a case of that kind, is for you, under all the evidence.
    “ [Hill, if not the agent of the owners in the transaction, must have been the agent of the purchasers, from or through him. A broker is mutual agent of the seller and buyer, where authorized to sell, and, in consequence, Baum & Carrier would be visited with the consequences of his acts ■;] and as no distinction can be made in the verdict, as between the defendants, the same verdict must, if against them, whatever it may be, be rendered as against all of them whom you may find to have actively participated in the transaction of the taking and conversion of the timber, and if some of them are more to blame than others, they must settle that between themselves.
    “ And in case you find for the plaintiffs, and find no such evidence of aggravation as would justify more than compensatory damages against defendants, and the testimony of market price is conflicting, the jury should be satisfied, at all events, that they allowed plaintiffs what was the full market price at the time of the conversion, with its interest. Where one party puts it out of the power of another to deal with his own property as he pleases, and to make the most of it, he cannot complain at being made to pay as much for it as may be reasonably supposed could have been made out of it at the time and place where the conversion took place.” * * *
    The verdict was for the plaintiffs for $8586.19.
    On the removal of the case to the Supreme Court by the defendants, they assigned for error: the rulings as to the evidence; the answers to the points; the instructions as to damages, and the part of the charge in brackets.

      W. P. JenJcs and B. F. Lucas (with whom were A. Gc. Lucas and A. M. Brown), for plaintiffs in error. —
    The 73d Rule of the Court of Common Pleas requires exceptions to a deposition to be filed after the return of the commission; it is not required to make objection when the interrogatories were filed. The acts of Stephens were the acts of Shoup & Wilkinson, and his principals were bound by them: McKelvy v. Truby, 4 W. & S. 323; Carr v. Wallace, 7 Watts 394. As to damages they referred to Hill v. Canfield, 6 P. F. Smith 454.

      B. Barclay and (7. B. M. Smith (with whom were Collier, Miller McBride), for defendants in error. —
    The possession at the time of conversion was properly left to the jury: Harger v. McMains, 4 Watts 418. The right of possession is sufficient: Mather v. Trinity Church, 3 S. & R. 512; Fleming v. Bevan, 2 Barr 408; Jacoby v. Laussatt, 6 S. & R. 305.
   The opinion of the court was delivered, November 22d 1869, by

Thompson, C. J. —

The first specification of error in this case is to the admission in evidence against objection, of the second interrogatory put by the plaintiffs below to Whately, a witness examined on a commission, and his answer thereto. The objection was that the interrogatory was leading, and that, therefore, the answer ought not to be received. The court overruled the objection, holding that an objection to the character of the interrogatory should have been made by the defendants before the commission issued. This was a good reason for the ruling, especially as the defendants joined in the commission by filing cross-interrogatories. This has been often held; but I need only cite Overton v. Tracey, 14 S. & R. 311, which is at hand, as sufficient authority on the point. The 73d rule of court is not applicable to the point — that refers to objections to depositions taken, and perhaps to the execution of commissions. This error, we think, is not sustained.

Nor do we think that the second exception below is any better founded. The witness Prescott had spoken of a rise in the price of timber in the autumn of 1865, the same season in which the controversy arose. Having so stated the fact in a general way, the plaintiff’s counsel proposed to ask him, “ what was the extent of the sudden rise in the price of timber of which you speak?” It seems to me this was proper to be asked, if what he had said was testimony, and it was not objected to, in order to give definiteness to what he had already said. Whether it would have any applicability to, or effect in the case, eventually, would depend on subsequent testimony. The court could not reject it at that stage of the case. There was no error, therefore, in receiving it. If the only ground of controversy had been the amount of damages which the plaintiffs were entitled to receive there would have been more plausibility in the objection at that point of the controversy, although not more of soundness ; but the defence was that no damage, was to be recovered at all — that they were not liable to any. Hence it seemed somewhat inconsistent to object that such testimony might subject them to too high a rate of damages, while denying liability to any. At all events, the question was properly allowed, and the answer to be given.

There are twelve other assignments of error, These are upon the answers of the court to the points submitted by the defendants' counsel, and to portions of the general charge. We see nothing in any of them that looks like error, or requires much discussion.

The 3d, 4th and 5th assignments relate to the effect of an alleged assent of Stephens, the agent of Shoup & Wilkinson, to a sale of the timber in controversy, by Hill, one of the defendants, to Carrier & Baum. There was certainly abundance of testimony to go to the jury tending to show that if any assent of Stephens was given to a sale of the timber by Hill it was under the belief that Hill had authority from Shoup & Wilkinson to make the sale, superinduced thereto by the declarations of Hill that he had such authority. It was contended by the plaintiffs below that if any assent were given by Stephens, or acquiescence in the sale by him, it was thus induced. If this were so, such an assent, so induced, would not bind the owners, or anybody. If he was simply the agent in the business of Shoup & Wilkinson, to sell the timber, he could not delegate his power so as to bind them, even if he had attempted it. Delegatus non delegare potest. The answers, and body of instructions on this point of the case, were, proper, and as favorable to the defendants as they had any right to expect. It was referred to the jury to say whether Stephens had assented to the sale by Hill, without being misled by him as to his authority to so sell, with the instruction, if such were the case, the plaintiffs could not recover; but if he was misled, and there was no authority in Hill to make the sale, they might. This is the substance of the instructions, and they certainly were as favorable to the defendants as they could reasonably claim to have them.

The sixth assignment also is not sustained. It is to the answer of the court to the third point of the defendants below. It is certainly true, as was in substance said by the learned judge, that if Hill, through fraud, and without authority, made sale of the timber to Carrier & Baum, no title passed, and did not prevent the owners from selling it to other parties. To hold the contrary would be to assent to the doctrine of market overt, although not applicable to our times, and more, for Hill had not even the possession of the property he was selling.

The answer to the defendants’ fourth point was also unobjectionable. It was to the effect that if Poor, on behalf of Canfield and himself, was not deceived by Hill’s claim of a right to sell the property, and became a party in selling out their alleged interest in it to Carrier & Baum, they might be estopped from holding for themselves under a purchase from Shoup & Wilkinson. But if he made a settlement of their interest in the belief that Hill had authority, while, in fact, he had none, his contract to secure himself and his partner in the timber or lien' upon it, would, under such circumstances, not estop them in asserting title as against Carrier & Baum, under a bond, fide purchase from the owners. The defendants cannot be allowed to claim an estoppel arising out of the misrepresentations or fraud of their agent or their own. This is a principle too consonant with justice to need a reference to authorities to prove. The instructions, therefore, on this point were altogether right and proper, and the submission of these positions to the jury was right.

These remarks are applicable also to the answer of the court to the defendants’ 5th point, which involves the same principle as that contained in the 4th point, and this disposes of the 8th and 9th assignments of error.

In regard to the answer of the court to the defendants’ 6th point, which is the matter of the 10th assignment of error, we think the assignment is not sustained. At what time, place, and in what circumstances, conversion of the timber took place was a questioq solely for the jury, and this was the direction of the court on the subject, and was right.

The 11th, 12th and 13th errors áre not substantially assigned in accordance with the rules, and we need not discuss them in ex-tenso, but in truth this is of little consequence in the case, for we have examined them and find no error in the answers of the court of which they are predicated.

The 14th and last assignment of error is to the remark of the learned judge in his general charge, that “ Hill, if not the agent of the owners of the timber in the transaction, must have been the agent of the purchasers from, or through him. A broker is the mutual agent of the seller and buyer, when authorized to sell, and in consequence, Baum & Carrier would be visited with the conse.quences of his acts.” We see not wherein injury could have resulted to the defendants from the remark quoted. The defendants claimed through a sale made by Ilill, not through a sale by Shoup. Nothing like that, we think, appeared in the case, and there was enough in the case to enable a jury to draw the inference, at least there was enough to be submitted to the jury to draw the inference, that Carrier & Baum became the purchasers through the agency of Hill. If so, and he had no authority to sell to them, they would take no title, and they could not escape responsibility for converting the property to their own use to which they had no right. The true import of the remark and its purpose, was to assert that if Hill had no authority in the premises, the defendants’ purchase from him would be no protection to them, and that they would be responsible for the property to the plaintiffs if they were invested with the title. This was right beyond a question. We see no necessity or call for any more elaboration of this case than we have given it, although the assignments of error are numerous and the discussion of the several questions assumed a very wide range. Therefore, seeing no error in the various rulings of the learned judge, we are brought to the conclusion that the judgment must be affirmed.

Judgment affirmed.


author: Sharswood, J. —

text:
    Mundorff versus Wickersham.
    1. If an agent obtain possession of property under an unauthorized condition, the principal must either return the property or hold it subject to the condition.
    2. Qui sentit commodum sentiré debet et onus.

    3. Where one adopts a contract entered into without his authority, he must adopt it altogether. He cannot ratify the beneficial part and reject the remainder.
    4. Where a servant sells a horse and, without authority, warrants him, the master receiving the price, though ignorant of the warranty, is bound by it.
    5. Where one of two innocent persons must suffer by the fraud or negligence of a third, whichever has accredited him must bear the loss.
    6. The holder of a note is responsible for representations made by a broker employed to sell it, though contrary to his instructions.
    7. A principal who sues to enforce a contract is bound by representations of his agent made to induce the opposite party to enter into it.
    8. A debtor cannot have the benefit of a compromise effected by his agent without adopting all the representations made by the agent whilst negotiating it.
    9. If an agent borrow money for his principal and procures another to become surety who pays the debt, the principal is answerable to the surety.

      November 2d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 210, to October and November Term 1869.
    This was an;1 action of assumpsit to July Term 1860, by Gibson A. Mundorff against Samuel M. Wickersham. The suit was brought to recover the amount of the plaintiff’s note, which it was alleged had been lent to the defendant, and which the plaintiff was obliged to take up at maturity. The plaintiff gave in evidence the note and a receipt as follows:—
    “ $300. ■ Pittsburg, November 29th 1858.
    “ Four months after date, I promise to pay to the order of S. M. Wickersham, three hundred dollars, without defalcation, for value received. •
    G-. A. Mundoree.”
    “ Pittsburg, November 29th 1858.
    “ We received of G-. A. Mundorff his note, calling for three hundred dollars, payable to the order of S. M. Wickersham, dated November 29th 1858, which we are to protect at maturity.
    James Yandergriee,. for S. M. Wickersham.”
    The plaintiff then called Yandergriff, who testified that defendant told him the plaintiff was to give him (defendant) a note, told witness to call at plaintiff’s office and he would give the note to him; witness called on plaintiff, who said he was to give a note; he delivered the note in question to witness, and drew the above receipt, which the witness signed. On cross-examination the witness stated that he was not indebted to defendant; did not know whether the plaintiff owed the defendant or not; witness had no authority from defendant to sign the receipt in the way he did. The plaintiff having closed, the court (Williams, J.) directed a judgment of nonsuit, which the court in banc refused to set aside. This was assigned for error, on the removal of the case by the plaintiff to the Supreme Court.

      B. P. Lucas (with whom was A. Cr. Lucas), for the plaintiff in error,
    cited Bevan v. Insurance Co., 9 W. & S. 187.
    There was no argument or paper book for defendant in error.
   /The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

If an agent obtains possession of the property of another, by making a stipulation or condition which he was not authorized to make, the principal must either return the property, or, if he receives it, it must be subject to the condition upon which it was parted with by the former owner. This proposition is founded upon a principle which pervades the law in all its branches: Qui sentit eommodum, sentiré debet et onus. The books are full of striking illustrations of it, and more especially in cases growing out of the relation of principal and agent. Thus, where a party adopts a contract which was entered into without his authority, he must adopt it altogether. He cannot ratify that part which is beneficial to himself and reject- the remainder: he must take the benefit to be derived from the transaction oum onere: Broom’s Legal Maxims 632; Hovil v. Pack, 7 East 164; Coleman v. Stark, 1 Oregon 115. In the familiar case of the sale of a horse by a servant, who, without authority, warrants the soundness of the animal; the master having received the price enhanced by the warranty, even though ignorant of it, is responsible: Nelyear v. Hawke, 5 Esp. 72; Alexander v. Gibson, 2 Campb. 555; Williamson v. Canaday, 3 Iredell 349. Where the agent of the insured, in effecting an insurance, makes a false and unauthorized representation, the policy is void. Where one of two innocent persons must suffer by the fraud or negligence of a third, whichever of the two has accredited him, ought to bear the loss: Fitzherbert v. Mather, 1 T. R. 12. The holder of a note is responsible for representations made by a broker employed to sell it, though contrary to his instructions: Lobdell v. Baker, 1 Metcalf 193. A principal who sues to enforce a contract, is bound by the representations made by his agent, in order to induce the opposite party to make it: Bennett v. Judson, 21 N. Y. 238; Elwell v. Chamberlain, 4 Bosw. 320; 31 N. Y. 611; so a debtor cannot have the benefit of á compromise and release, effected by his agent, without adopting all the representations made by the agent to the creditors, in negotiating it: Crans v. Hunter, 28 N. Y. 389. If an agent borrows money for his principal, and procures another to become surety, and the surety afterwards pays the debt, the principal is answerable to the surety: Higgins v. Dillinger, 22 Miss. 397. There is a very strong case in Barber v. Britton, 26 Verm. 112, where the defendant sent a servant to employ the plaintiff, who was a physician, to visit a boy who had been injured in their service, and directed him to tell the plaintiff that they would pay for the first visit. The servant neglected to mention this, and employed the plaintiff generally. He attended the boy until he recovered, and the defendants were held liable for his whole bill. Many of these cases are put upon an implied authority, but the more reasonable ground, as it seems to me, is, that the party having enjoyed a benefit, must take it cum onere.

The defendant in this case received a note signed by the plaintiff, which was delivered to the defendant’s agent, upon the faith of an undertaking that he would protect it at maturity. He has enjoyed the benefit of tbe transaction. He used tbe note in bis business, and doubtless received- tbe proceeds of its discount. Tbe plaintiff bas been obliged to pay it at maturity, as bis possession of tbe note with tbe defendant’s endorsement proves, at least primá facie. He is now seeking to enforce tbe contract evidenced by tbe receipt. Why shall not tbe defendant bear tbe burden of the transaction, as be bas received tbe benefit ? If tbe note was not an accommodation note, but founded on value; if tbe plaintiff did owe tbe defendant the amount of it, and tbe defendant was not bound to protect it at maturity, then there was a palpable fraud committed by tbe plaintiff, in requiring tbe agent to sign such a receipt, and this would be a full defence to tbe action.

Judgment reversed, and procedendo awarded.


text:
    Davis versus Sabita.
    1. A decedent’s land was laid off in lots by a master, &o., in proceedings partition, and a street laid out and marked on a plan. Davis sold lots adjoining according to a plot which he exhibited at the sale, and which indicated that streets on which his lots were located opened on the street of his neighbor; the report of the master was afterwards set aside, and a new plan made, leaving a strip of six inches wide between the streets on Davis’s lots and the street on the neighbor’s land, and depriving the lots from access to that street. Held, that the purchasers of his lots had a good defence against bonds given for the purchase-money.
    2. The reservation of the six inches could not be disregarded under the maxim de minimis lex not curat. It is only when a matter is deemed utterly unimportant to carry out that this maxim applies.
    3. One citizen cannot disregard the lawful exercise of rights by another.
    4. An owner may dedicate his property to uses not unlawful, either public or private, and no change can be made except by lawful process or the assent of those for whom the dedication was made.
    November 2d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe District Court of Allegheny county: No. 124, to October and November Term 1868.
    J. G. Davis, tbe plaintiff in error, being tbe owner of land in East Liberty, laid it out in lots designated on a litbograpbed plan, with tbe beading, “ Orchard addition to East Liberty, part of tbe property known as Shakespeare Gardens. Auction sale of lots on Monday afternoon, August 28th 1865, on tbe premises.” Handbills containing this lithographed plan were posted in tbe neighborhood. Tbe plan exhibited three tiers of lots as bounded on tbe east by a street marked “ East street,” represented to be 50 feet wide, and on tbe south by “ Union lane,” 20 feet wide. Tbe tiers of lots were separated by Liberty street and an alley 10 feet wide. East street and Union lane were not opened, nor were they marked on the ground. The lithographed plan was exhibited by the auctioneer as descriptive of the lots and their localities. The lots adjoined land belonging to Denniston’s heirs, which prior to the sale of Davis’s lots had been laid off in lots by a master and commissioners, who located a street, which they called Denniston street, along the east line of Davis’s land; this was the street called “ East street” on Davis’s plan. Sabita at the sale purchased four of the lots for $510, paid one-third of the purchase-money on the 30th of August, gave two notes with warrants of attorney for the deferred payments, and received a deed for "the lots, whose description in the deed corresponded with the plan made for the Denniston estate. After the sale the report of the master and commissioners dividing Denniston’s estate was set aside and under direction of the court they made and filed another, laying out “Aurelia street,” in place of 'that called “East street” on Davis’s plan, but leaving a strip about six inches wide between that street and Davis’s land, so that there was no outlet from the lots through Liberty street or the 10 feet alley. Judgment for $190 was entered on the 19th of September 1866 against Sabita on one of the notes. On the 8th of October 1866 the judgment was opened and the defendant let into a defence.
    On the trial the foregoing facts were given in evidence. The plaintiff in rebuttal gave in evidence a deed of dedication by himself, in which he recited the laying out and sale of his lots; the change of the plan made for Denniston’s heirs, by which Liberty street as marked in his plan had no outlet; that he had purchased three lots of the Denniston land for the purpose of affording an outlet, and then dedicated to public use as an highway so much of the land thus purchased as would be covered by the extension or prolongation of Liberty street till it would enter into Aurelia streeet, and granting to all persons who have purchased from him lots in his plan, &c., the right of passing from Liberty street to Aurelia street, &c., and the use of all the streets on the Denniston plan, so far as he had right to give and grant the same.
    The plaintiff’s points were:—
    1. The reservation of six inches across the ends of streets, and of the use of streets, in the Denniston plan, is inoperative to prevent the use of these streets by the owner of lots in the adjoining plan, as to the six-inch reservation, on the maxim — “ de minimis non curat lex."

      2. If the first point be declined, then that such reservation would be inoperative after the execution and delivery of the deed in evidence from J. Gr. Davis.
    4. If the jury believe that the plan referred to in defendant’s deed is the plan recorded, then there is no ground for damages in this case.

      The court (Williams, J.) answered the points thus:—
    “ 1. The court declines to charge as requested in this point. The owner of private property adjoining lands of others has the right to lay it out in town lots, with streets and alleys, for the ex. elusive use of the purchasers of said lots — and in order to prevent the owners of the adjoining property from using the said streets, he has a right to retain the title to a strip of land between the line of the streets so laid out, and the line of the adjoining owners, and he would have the right to build up a stone wall or wooden fence on the strip so reserved, whether the same be half a foot or more wide — and the owners of the adjoining property would have no right to pass over the strip so reserved, in order to travel on the streets laid out for the exclusive use of such town lots.
    “ 2. The court declines to charge as requested in this point. The deed of J. G. Davis in evidence grants only a street over the three lots mentioned therein, and the same right to the streets in the Denniston plan as he himself has as the owner of said lots. It does not purport or undertake to convey a right of way over the reserved strip in the Denniston plan; and if it did, the plaintiff has not shown any title to the strip so reserved.
    “ 4. If the jury believe that the plan referred to in the defendant’s deed is the recorded plan given in evidence, and that this plan was brought to the notice of the defendant before or at the time he executed the deed, then there is no ground for damages in this case. But if the defendant bought the lots on the faith of the lithograph plan, and if he never saw, or had any notice of the recorded plan, until after the execution of the deed, then he is entitled to avail himself of the defence set up here, although the scrivener in drawing the deed may have had the recorded plan before him, and taken the length of the lines from the said plan.”
    The jury found for the defendant. The plaintiff took a writ of error, and assigned for error the answers to his points.

      IT. Burgwin, for plaintiff in error.

      Bruce & Pfegley, for defendant in error,
    cited McCall v. Davis, 6 P. F. Smith 431.
   The opinion of the court was delivered, January 30th 1870, by

Thompson, C. J. —

The plaintiff in error, and plaintiff below, being the owner of certain real estate near or adjoining the village of East Liberty, Allegheny county, projected and laid out what.he .called the “ Orchard addition to East Liberty.” He procured a plan of the addition to.be lithographed, showing the streets and alleys, and numbers of the lots therein, and by this he held a public sale of the lots on the 28th of August 1865, at which he sold the lots in question, and delivered to the defendant two days thereafter, a deed for the lots purchased by him, on the payment of one-third of the purchase-money, taking two judgment-notes, each for a third of the purchase-money. It is as to the judgment on one of these notes this controversy has arisen.

The lithograph plan of the town, represented a street called “ East street,” as if laid out by the plaintiff on his own property; but it turned out in proof that this street was a street proposed' to be laid out by an adjoining owner on his own land, and which he never did lay out. Besides this, an alley on the rear of the defendant’s purchase which the lithograph represented as connecting with Aurelia street was a eul de sao, being cut off from that street by a narrow reservation, by the owner of the Dennis-ton town plan. These were material differences between the actual state of the property, and that in which the plaintiff represented it on his plan; and these differences, if they affected the value of the defendant’s purchase, constituted good grounds for an equitable defence to the payment of the purchase-money in full, and that is what the defendant below claims.

In McCall v. Davis, 6 P. F. Smith 431, this court held in a case arising out of the same facts we have here, excepting as to parties, in an opinion by my Brother Agnew, that where an owner of ground lays it off into town lots, with streets and alleys for their convenient use, and sells his lots accordingly, it is a dedication of these ways to the use of the purchasers. The plan which he exhibits to the bidders is the evidence of their existence and locationciting Birmingham v. Anderson, 12 Wright 253, wherein it was held that a plan or map thus referred to, becomes a material and essential part of the conveyance, and is to have the same force and effect, as if copied into the deed. It was also held in McCall v. Davis, that the vendor was liable for damages to a vendee for the non-existence of East street, and for want of a connection of the alley purporting to run into Aurelia street, and this whether the representation was fraudulent, or merely by mistake; “ that for his own positive acts which misled and injured, the vendor is liable.” One would suppose that all this would have satisfied the plaintiff below that he could not hold buyers of lots to contracts not made by them, or compel them to pay for ground differently situated from what he represented and induced them to believe was its situation. But it seems not.

The three assignments of error on this record are, to the refusal of the court to affirm the three points propounded by the defendant’s counsel, or either of them, viz.: “ That the Denniston reservation across the ends of the streets in his plan, and the restriction of the use of the streets to the use of the lots in his plan, were inoperative“ that it would be inoperative after the execution of the deed of the plaintiff of the 29th February 1869, dedieating to the purchasers the right of a street, or rather the extension of a street over lots purchased by him in the Denniston plan;” “and, lastly, in refusing to charge that if the jury believed that the plan referred to in the defendant’s deed to plaintiff was the plan recorded, there would be no ground for damages.”

The answers of the court to these points were entirely proper and adequate. Where one owns property by a title sufficient to give him entire dominion over it, he can grant it all, or reserve portions of it as he pleases. So may he dedicate 'it to uses not contrary to law, either public or private, and it is only by lawful process, or the assent of those for whose use the dedication was made, that any change can be made. It is not for one citizen to disregard the lawful exercise of rights by another. Nor can courts disregard reservations expressly and carefully made for a purpose not unlawful, on the principle de minimis. It is only when a matter is deemed utterly unimportant to carry out, that this principle operates. To the second point, the answer of the court was proper, and needs no discussion. The deed mentioned in it, did not supply the want of East street, which the plaintiff proposed in his plan, nor did it give a right of way over the reservation of the six-inch strip. -As to the last point, the answer is unexceptionable, and had it accorded exactly with the plaintiff’s prayer, it would have been manifestly erroneous. The plan recorded, was recorded after the deed was delivered to the defendant, and differed materially from the lithograph by which he bought. The recording of the plan, after the delivery of the deed to the defendant, did not go a step towards proving that the plaintiff had seen it at all, or was bound by it. It was, therefore, proper to instruct the jury that as it differed from the plan of the purchase, it would not bind the defendant, unless it had been shown to him, and had been assented to by him. This was the substance of the instruction. Seeing no error in any part of the record, the judgment is

Affirmed.


author: Williams, J. —

text:
    Short versus Stevenson.
    1. Stevenson being in negotiation for oil-land, proposed to form a company, represented that the land could be bought for §12,000, and induced Short to take and pay for a share in it at §1000. Stevenson bought the land, for §6000, without disclosing to his associates the price which he gave. Held, that on these facts Short could recover his money back.
    2. If Stevenson had disclosed the sum for which the land could be bought, and which he paid, and refused to sell for loss than §12,000, and Short had agreed to pay §1000 for a share with a knowledge of the facts, the transaction would have been unimpeachable.
    3. Good faith required that Stevenson should charge his associates no more for their respective shares than the amount actually paid for them.
    November 2d 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county; No; 2, to October and November 1869.
    This was an action of assumpsit by Marshall Short against Philip H. Stevenson, commenced July 18th 1867.
    The plaintiff declared in one count, that the defendant represented to him that he was about to buy 15 acres of land for $12,000; that the Stevenson & Smith’s Perry Oil Company were organizing for taking oil from the land, and the defendant would buy the land for the company at $12,000, and in consideration of the payment by plaintiff of $1000, defendant agreed to give him one-twelfth interest in the land; plaintiff averred that the defendant had paid but $6000 for the land, and he therefore became liable to pay plaintiff $1000.
    The second count set out as in the first, and averred that the defendant promised that whenever the plaintiff should become dissatisfied, the defendant would repay him the $1000, and that the plaintiff having discovered that the defendant had paid but $6000 became dissatisfied and demanded the repayment of the $1000.
    The declaration contained also the common counts.
    The plaintiff gave evidence by Levi Stevenson that in June 1865 the defendant told the plaintiff that a tract of oil land-containing 15 acres near Smith’s Perry could be bought for $12,000, and wished some good men to go in at $1000 per share. Short then agreed to take a share and put his name down.
    J. McNall testified that he was present at a meeting, August 5th 1865; the defendant showed a deed for the property, stating the consideration to be $12,000 ; defendant said the matter was all right; witness said the deed showed $12,000 had been paid for the property; Stevenson made no reply.
    J. Dougherty, the vendor of the land, testified that in April and May 1865 Stevenson came to him to buy the land, and not then buying it, came two or three times afterwards, the land was sold to him about the last of July or the 1st of August, for $6000; defendant paid for stamps for $12,000.
    There was evidence for the plaintiff that the defendant had promised the plaintiff to refund the $1000 if he became dissatisfied.
    The plaintiff gave -in evidence two receipts to him from the defendant for the payment in full of his share in the oil company.
    The plaintiff having closed, the court (Stowe, J.) directed a non-suit, which the'court in banc refused to take off. This, on the removal of the case to the Supreme Court by the plaintiff, was assigned for error.

      Collier, Miller McBride, for the plaintiff in error,
    cited Simons v. The Vulcan Oil Co., 11 P. F. Smith 202.

      T. M. Marshall and T. B. Hamilton, for defendant in error,
    referred to McElhenny’s Appeal, 11 P. F. Smith 188; Simons v. Vulcan Oil Co., Id. 202.
   The opinion of the court was delivered, January 24th 1870, by

Williams, J. —

We are clearly of the opinion that this case should have been submitted to the jury, and that the court erred in withdrawing it from them by ordering a judgment of nonsuit and refusing to set it aside.

The evidence shows that the plaintiff subscribed for a share in the Stevenson & Smith’s Eerry Oil Company, of which the defendant was a promoter; that, when he made the subscription, the defendant was not the owner of the lanc[ on which it was proposed to carry on the operations of the projected company, but represented that it could be bought for $12,000; and, on the faith of this representation, the plaintiff subscribed and agreed to pay, for one share, the sum of $1000 — the whole number of shares being twelve, at $1000 each — and that he paid one-half of the amount subscribed before the defendant bought the land; and that, when he paid the residue, the defendant exhibited a deed for the land, which he had in the meantime procured, showing the consideration therefor to be $12,000, and said that the matter was all right. Instead of paying $12,000 for the land, as represented, the defendant, as the deposition of Dougherty the vendor shows, paid only $6000 for it. If he had disclosed the exact sum for which the land could be bought, and which he actually paid for it, and had refused to sell to his associates for less than double the amount which he paid, and the plaintiff had subscribed, and agreed to pay $1000 for the share with a full knowledge of all the facts, the transaction would have been unimpeachable, and the defendant might have pocketed the profits without any liability to account therefor. But he made no such disclosure. He was not the owner of the land, and he did not buy it for himself alone, but for himself and his associates, and good faith requh’ed that he should deal fairly with them, and charge them no more for their respective shares than the amount actually paid therefor. As was said by the present Chief Justice, in the recent case of Simons et al. v. Vulcan Oil Company, 11 P. F. Smith 202, — “ An agent cannot make profits out of his principal in the business of his agency; nor a partner out of his copartner, without his assent; nor an associate out of his co-associates, for whom he has undertaken to act. That this is the law, authorities need not be required to prove. It is elementary.” The principle applies with all its force to the facts as proved in this case, and the evidence should have been submitted to the jury, with the instruction that, if they found that the defendant purchased the land for himself and associates without disclosing the price paid therefor, and was guilty of concealment and misrepresentation as to the terms of thé purchase, the plaintiff 'was entitled to recover back the advance price which he paid the defendant for his share.

Judgments reversed, and a procedendo awarded.