Fulmer v. Williams

Citations

• 122 Pa. 191
• 15 A. 726
• 1888 Pa. LEXIS 605

Syllabus

<p>1. In Pennsylvania, navigability in fact, not Hie ebb and flow of the tide, is made the test by which the character of a stream as public or private is dolcrmiued, and the great but tideless rivers o£ the state are therefore held to be public highways, belonging to the state and held for the use of all her citizens.</p> <p>2. A grant of land bounded upon a stream, not navigable, extends usque ad medium filum aquae; but a grant of land bounded upon a navigable river extends to ordinary low-water mark only.</p> <p>3. Between liigh-and low-water mark upon a navigable river, the grantee takes subject to the rights of the public, and, as between Mm and the public, he may use his land below high-water mark for such purposes as do not interfere with the free flow and navigation of the waters.</p> <p>4. Adjoining owners upon a navigable stream, as between themselves, are owners of the soil above the low-water mark, and must observe the obligations growing out of such ownership and proximity; one has no more right to injure the other with the flowing waters than with the waters of a non-navigable stream.</p> <p>5. A shore-owner has no right to erect a dam to turn the water to his mill, without a grant from the commonwealth; if he do so, he becomes a trespasser and acquires no title to the water power resulting therefrom.</p> <p>6. Tlie mill-owner having no title to the water, whether above or below low-water mark, lie can have no legal right to the power resulting from his erection of a dam in the stream, and its diversion by an upper shore owner is, therefore, damnum absque injuria.</p> <p>7. The shore-owner, however, may recover from an upper owner when the latter by an unlawful invasion of the bed of the stream has deprived the plaintiff of convenient access to the water and a proper use of it as unaffected by his own unlawful act.</p>