
    WESTERN PENNSYLVANIA R. R. CO. vs. SHARP.
    The title of the State in the land occupied by the public works does not extend to the part of the canal which was widened by the adjoining owner to build boats.
    The burden of proof is upon the purchaser from the State to show that there was an actual occupation and appropriation outside of the Statutory sixty-two feet.
    The construction of a stone wall by the State, along ihe berme bank of the canal enclosing a basin, which was made by the adjoining land owner, by widening the canal for boat building, is not such an appropriation by the State as would divest the land owner’s title.
    The use of said basin by the public, and the construction of the stone wall by the State, which remained until after the canal was sold, do not amount to a dedication to the public, or constitute an estoppel against the land owner.
    Error to Common Pleas of Allegheny county, No. 242, October and November Term, 1877.
    This was an action of ejectment brought by Mrs. Isabella Sharp and Mrs. Eliza Clark against the Western Pennsylvania Railroad Company for a lot of ground in Sharpsville, on a part of which said company had erected their depot. The Pennsylvania Canal, when built, had passed through the land of James Sharp, who was the father of the plaintiffs. At the point where the premises are situated, a lock had been constructed.
    In 1843 Palmer C.- Root leased from James Sharp the ground just below the lock and adjoining the canal, and obtained permission from the Supervisor of that part of the canal to remove the low embankment at that point and allow the water from the canal to flow back. The embankment was then removed back about twenty or twenty-five feet, the water flowing back and filling the excavation made by Root forming what was afterwards called the basin, or at least a part thereof. This basin was used by the tenants of Mr. Sharp in carrying on their business of building and repairing boats to be used on the canal; and timbers called ways or skids, extended from, tlie boat yard into the basin, on which the boats being repaired or built were drawn up or let down into the canal. The public also made use of the basin in connection with the tenants of Mr. Sharp. It was also claimed by the railroad company and some evidence offered to show that the State, under which the railroad company claimed title at one time, had erected and had maintained a stone wall around said basin without any objection from James Sharp, the plaintiff below. It was contended by the railroad company that the permission given to the public of the use of said basin, as well as the widening of the canal and allowing the water to flow back upon the premises of the plaintiff below, amounted in law to a dedication to public use, and that these acts in connection with the construction of a stone wall around said basin by the State, without objection from James Sharp, amounted in law to an estoppel against the plaintiff below.
    The points submitted by plaintiffs below were:
    1st. That the title of the West Penn. Pailroad Co. extends ■only to the land actually and permanently occupied by the State for canal purposes, and does not extend to or cover any widening of the canal made by James Sharp or his tenants for the purpose of carrying on their business of building and repairing boats.
    2d. That as shown by the contracts of the Canal Commissioners, in evidence, for the construction of the canal on the section covering the Sharpsburg lock, and along and abutting upon the property of the plaintiff, the general width of the canal, including towing path, water way, berme bank and embankment along water way, is sixty-two feet, and the burden of proof is upon the defendant to show an actual, permanent occupation of ground for canal purposes outside of and beyond .said sixty-two feet, if they seek to establish title beyond said width.
    Both of which points were affirmed by the court below, which ruling was excepted by defendants, and assigned as error.
    
      The following are the points submitted by the defendants below, with the answers of the court thereto ; to which answers exceptions were taken by the defendants :
    4. That in considering whether the land in dispute was taken by the State, the jury have a right to presume that the agents and engineers of the State exercised proper care and skill as to the quantity of land that was requisite for the permanent úse of the canal, and if upon the whole evidence they find that what the defendants claim was taken was nothing more than was reasonably necessary for said use, they have a right to presume that the said agents and engineers did mark off and appropriate the disputed land now in possession of the defendants, and if they so find, defendants are entitled to a verdict.
    Answer. Refused. The jury will not be justified in finding for the defendants merely upon the presumption suggested in this point. But if the evidence leaves it in doubt as to whether or not the land, or a portion of it, was actually taken by the State for the use of the canal, the fact that the same was reasonably necessary for the use of the canal, as laid out and built, would be some evidence tending to indicate that it was so appropriated and may be considered by the jury upon that question.
    5. That if the jury believe the evidence of Major Jamison, that he gave permission to Root, the tenant of James Sharp, to scoop out the bed of the canal for a distance of one hundred feet or thereabouts below the locks, and that said scooping was within the original limits of the canal, such work by Root gave said Sharp no title to the ground of any kind as against the Commonwealth, and as a consequence the plaintiff cannot recover by reason of the wrork so done.
    Answer. Affirmed, if you find that the evidence of Jami-son was suggested. What the evidence was of course is for the jury.
    6. That before the jury find that the original berme bank was for the distance of one hundred feet below the locks removed and set back any distance, whether it be twenty feet or thereabouts, as claimed by plaintiff,the evidence should be clear and convincing as to the alleged removal, and if under all the-evidence in the case the plaintiff has failed to satisfy the jury that said berme bank was so changed the verdict should be for defendants.
    Answer. Affirmed. Striking out (should be clear and convincing) and inserting (should fairly and reasonably satisfy the jury.)
    8. That if the jury believe from the evidence that after said alleged removal of the berme bank the Commonwealth constructed a stone wall along the said berme bank from a point, near Main street to the waste weir, and said wall existed until the canal was sold by the Commonwealth and became the-property of the defendants, such act amounted in law to a taking by the State of all the ground inside of said wall towards the water which had not been enclosed by the original berme bank, and James Sharp thereafter, by such act on the-part of the State, lost his title to said ground and had his remedy for damages against the Commonwealth, and if such be the facts the plaintiff cannot recover.
    Answer. Refused.
    9. That if the jury believe from the evidence that James-Sharp allowed or knew a stone wall to be built by the State along the berme bank, as stated by the witnesses, Lewis and Miller, and said wall included ground of his not within the original canal limits, and said wall was plainly to be seen on the premises at the time the canal was sold in 1857, by the Commonwealth, and after said sale said wall was permitted to remain until the period of his death, in 1861, such acts constitute an estoppel against the plaintiff's right to a verdict for the ground claimed, by reason of the change of the berme bank, and the defendants are in law to be tr. ated as innocent purchasers, without notice, by record or otherwise, of the claim of the present plaintiff, and are entitled to a verdict.
    Answer. Refused.
    10. That if the jury believe from the evidence that the berme bank was removed by Root with the knowledge and consent of Sharp, and the ground of the latter by such removal became part of the canal basin, and was used by the public •during the time said Root remained, in possession of the premises leased to him by Sharp, and said use was continued until the sale of the canal in 1857, and that during said period, viz: From the time said removal was made until sale, the ■State erected and maintained a stone wall along the berme side of the basin, including the portion excavated by said Root, .and that Mr. John Sharp set his fence on the top of the berme bank, as testified to by Burns and other witnesses; such acts, conduct and declarations in law constitute a dedication of the property of James Sharp to the public, to the extent of the portion used, and if the jury find such dedication to include the premises in dispute, the verdict should be for the defendants.
    Answer. Refused.
    The charge of the Court was as follows: per
    Stowe, P. J.
    Plaintiff has shown legal title to all the land she claims in this case subject to such rights as the defendant may have shown under their purchase of the Pennsylvania canal from the State.
    And now the question, in the first place, is how much of the land in dispute is the defendant entitled to under the evidence in this case.
    It is clear that whatever the State owned, and was entitled to hold as against James Sharp and his heirs, the defendant is entitled to hold against the plaintiff, and so much of the land covered by plaintiff’s claim, as appears to have belonged to the State, the defendant has a good title to, and for so much plaintiff has no right to recover.
    This, then, brings us to the title of defendant. It does not appear that the State ever filed any plats or specifications of the land they had taken for the use of the canal.
    
      The Canal Commissioner had a right to take so much as-was necessary for any purpose ordinarily incident and proper for that purpose, such as for water ways, locks, waste wiers and basins.
    It seems that the average dimensions fixed for the canal proper was forty feet wide at water line, twenty-eight feet at bottom, and four feet deep, subject to such occasional alterations as the engineer and acting commissioners might find necessary. The dimension of locks fifteen feet wide and eighty-five feet long in chamber.
    Under the contracts made by commissioners for building of canal we find that the canal banks (were) to be so constructed that the water may at all places be at least forty feet wide on. the top water line, twenty-eight feet at the bottom, and four feet deep. Each of the banks shall be at least two feet above the top water line, and such a slope shall be preserved on the inner side of the banks, both above and below the top water line, as that every foot perpendicular rise shall give a horizontal base of eighteen inches, towing path at least 10 feet wide, and the bank opposite at least six feet, and both banks shall have a declination from the inner to the outer edges thereof equal to five inches in ten feet of surface, &c. This, .as you will perceive, gives sixty-two feet for the towing path, berme and water way, with the necessary inner slope for canal bed. This much, at least, the State would seem to be clearly entitled to in connection with the canal, without reference to outside slopes of towing path and berme; but then, as the defendant claims-more, to-wit, land taken for outside slopes on berme side for waste weir and for basin, the next question is how" much more than this sixty-two feet has defendant shown a right to hold, and this is the great question in the case, under the evidence, to be determined by the jury.
    The only matter for the Court to instruct you upon in regard to this is the rule of law. And that is this : Whatever the defendant has shown the State took originally for the permanent use of the canal, including water ways, locks, waste wier, and the slopes and embankments of wiei and canal as constructed by the State, is certainly the defendant’s.
    
      In the absence of title, shown by application and plats filed by the State, none of which have been found, so far as this question hero is concerned, the case depends solely upon the-testimony tending to show where the actual location of the canal works was and their extent. Then, where were these-works located and what was their extent ? This, of course,, includes the basin, so called, as originally built.
    To this extent, with the necessary berme, including outside-slope depending upon its height, the defendant is entitled to, and no more, unless you are satisfied that for twenty-one years before suit brought the State occupied this portion of the basin, claiming exclusive control and ownership in it and the land covered by the widened portion, and so notoriously as to-indicate to the owner and others that it was claimed and treated as a portion of the State property. If the evidence satisfies you of this then the defendant has a good title under the statute of limitations. If it fails to do so, the plaintiff has a right to all that James Sharp owned as against the State as the canal works were originally constructed and used.
    Then, gentlemen, what was the original ground occupied by the State works as shown in the evidence?
    Having found that, that fixes the title of defendant to the-land in question, be it more or less, unless you should find that after the canal was built the basin was widened, as claimed by plaintiff, and that the State and the defendants had 'by adverse, notorious and hostile possession for 21 years acquired a title to to that portion of the ground by the statute of limitations.
    This, v,re think, covers the entire case as to all except that portion of the so-called basin. Where and what was the extent of the ground originally taken by the State ? Having fixed that this to that extent fixes the right of defendant.
    As to the basin, the original ground taken for that will also fix the limit of defendant’s rights, unless after it was widened the State for 21 years and defendant held and used the same so as to give them a title under the statute of limitations:
    On February 2, 1876, the jury rendered a verdict against the railroad company, who then took this writ of error, complaining of the charges and answers above set forth.
    Messrs. Hampton and Dalzell, for plaintiff in error,
    argued that the removal of the embankment and widening the basin was a dedication to the public; Schenley vs. Commonwealth, 36 Pa., 29; P. Ft. W. & C. R. R. vs. Dunn, 56 Pa., 284; Downing vs. McFadden, 18 Pa., 335. Defendant in error was estopped by permitting the wall to be built; Pittsburg vs. Scott, 1 Pa., 309; Biliington vs. Welsh, 5 Bin., 129; Carr vs. Wallace, 7 Watts, 394; Covert vs. Irvin, 3 S. & R., 283; Woods vs. Wilson, 37 Pa., 379; Chapman vs. Chapman, 59 Pa., 214.
    Messrs. W. S. Miller, R. McKnight and J. H. Miller, contra,
    argued that there was no dedication ; Gowen vs. Philadelphia Exchange Co., 5 W. & S., 141; Irwin vs. Dixon, 9 Howard, 10. On the question of estoppel, they cited : Hepburn vs. McDowell, 17 S. &. R., 383 ; Alexander vs. Kerr, 2 R. 83; Crest vs. Jack, 3 Watts, 240 ; Davidson vs. Barclay, 63 Pa., 407 ; Lawrence vs. Luhr, 65 Pa., 236 ; Edelman vs. Yeakel, 27 Pa., 26 ; Hill vs. Epley, 31 Pa., 334.
   The Supreme Court affirmed the judgment of the Common Pleas on October 21st, 1878, in the following opinion:

Per Curiam.

Without a good title to the premises in the State, acquired by an exercise of the power of eminent domain or by the voluntary and clearly intended dedication of the owners of this part of the alleged canal basin to public use, it is very clear the present ownei of the property of the State has very little show of equity. This part of the so-called basin was used by the owner of the land for private uses, and by means (the ways or skids) giving notice of a different title and use. The State hersel abandoned her canal and works and they fell into disuse and decay.. The Railroad Company found a state of facts which did not accord well with either dedication or estoppel. The question of original taking has been dispose I of by the verdict of the jury against the company under a fair decree and submission; while the other questions are not only doubtful in equity, but in the evidence, to raise them. We do not see that the Court below committed any substantial error.

Judgment affirmed.  