
    Arthur Chambers against Daniel Furry and Christian Furry. Same against same.
    In a highway, the right of passage belongs to the public, but the right to the soil, the stones, wood, or grass, continues in the owners of the lands.
    There is no custom to laud or receive freights on another’s freehold on the banks of a navigable river without his consent.
    
      These were two actions of trespass quare clausum fregit, for landing wagons, borses and passengers, on the plaintiff’s freehold in Paxtang township, on the east side of the river Susquehannah, from the defendants’ flats, and for receiving wagons, horses, and passengers, on board the said flats from the said close.
    The plaintiff shewed title to the locus in quo, under a deed dated 30th November 1785, from John Eppele and wife, and Sophia Eppele his mother, to the said plaintiff, in consideration of 120!. of a parcel of land, extending — perches on the east side of the said river, and the width of 3 perches from high water mark, and of 4 perches from low water mark, and of the old ferry, (called Teaff’s,) belonging to the farm whereon the grantors lived.
    The plaintiff proved the trespasses in both cases, and it was then admitted, that the defendants had received ferriages from persons crossing the said river, who were lauded within and also taken from the supposed freehold of the plaintiff.
    The defendants contended 1st, That the place where the supposed trespass was committed, was a public highway. 2d, That every person had a right to land on, or receive property from the banks of a navigable river. 3d, That possession of this privilege had been had by those under whom they held their lands on the west side of Susquehannah, for fifty years, and a right must therefore be presumed from so considerable a length of time.
    The first ground was given up, on its appearing to the jury, who had viewed the road in the presence of a shewer mutually agreed to, that the public highway was laid out at some perches distance from where the boats landed or received their freight.
    *On the second point, were cited 1 Ld. Raym. 725. r*igo Every man of common right may justify the going of *- his servants, or of his horses upon the banks of navigable rivers, &c. to whomsoever the right of the soil belongs. 1 Burr. 292. A jury found after a second new trial, that all persons whose occasions led them to navigate the river Tees, which divides Yorkshire from the county palatine of Durham, had a right to a track path on each side of the river for the convenience of towing, without let or hindrance from the owner of the soil. Dougl. 425 to 429. The right to the soil of a navigable river, belongs by presumption of law to the king, and not to the owners of the adjoining lands.
    On the third ground of defence, evidence was given, that upwards of thirty years ago, ferries were kept on both sides of the river, and boats received their freights and landed on the opposite shores without molestation or hindrance, the owners on each side permitting those on the other side to enjoy the benefit of their respective landings. That Michael Teaff first kept the ferry on the east side of Susquehannah (where John Eppele, who conveyed the lands to the plaintiff, now lives) and Marcus Huling on the western side, where the defendants lately dwelled; and that they and their successors were never disturbed in landing or receiving wagons, horses or passengers, on board their flats on the opposite shore, until the year 1785, when the plaintiff purchased the landing from Eppele, and forbad the defendants and their boatmen from landing on his shore.
    The defendant’s counsel farther cited 3 Term Rep. 262, where Eord Kenyon says that small evidence of usage before a jury, will establish a right by custom, on the ground of public convenience.
    The plaintiff’s counsel contended, that it had been settled in a late case (Ball v. Herbert, 3 Term Rep. 260) that the public were not entitled to the use of the banks of navigable rivers, at common law. That the case in 1 Ed. Raym. 725, was considered as inaccurate and of no authority. 3 Term Rep. 261, 262, 263. And that no prescriptive right could be set up in Pennsylvania to the use of the banks of the Sus-quehannah, which was first established a highway by act of assembly passed 9th March 1771, as to the purposes of navigation up and down the same. On the contrary, the different acts of assembly which had passed since the late revolution, vesting ferries in particular persons, evinced the uniform idea of the legislature to have been that to entitle a person to keep *1 «or such ferry, he must either * hold the grounds where -* the landing is made, or obtain the consent of the owners of the lands for that purpose. The law passed nth March 1784, giving John Sumral a right to a ferry over Youghiogeny, contains this clause; “provided always, that “nothing contained in this act shall be construed to vest a “right in the said John Sumral, his heirs or assigns, to land ‘ ‘ any boat or boats, upon any landing belonging to any other “person or persons, without their consent first had and “obtained.” 2 State Laws 283.
    So of the act passed the same day vesting a ferry over Monongahelah in John Ormsby. Ibid. 284.
    So of the act passed 8th September 1787, vesting a ferry over Schuylkill near Spring Mill in Peter Ee Gaux. 3 State Eaws 315.
    So of the act passed 28th March 1791, vesting a ferry over Swatara in Christian Seltzer. Loose Laws p. 23.
   By the court.

There can be no doubt but the plaintiff is entitled to recover in both suits. The plaintiff complains of an injury done to him in his freehold, and has fully proved his case. How then do the defendants justify themselves?

Their first plea set up, that the place where the supposed trespass was committed, was a public highway, has been abandoned. The facts would not warrant it. But had it been a highway, would it have been a justification? The public would in that case have been entitled to a right of passage, but the title to the soil, the stones, the wood or the grass growing thereon, would have still continued in the owner of the lands. The use of the ground would be dedicated to the public for particular purposes only. The books lay it down, that in England, the right to the bed of a navigable river is presumed to belong to the crown, and of course in such case here, to the commonwealth, usque ad jilum aqiicz; but the right to the adjoining land rests in the owner of the soil. Hence arises the right to wharves in the city of Philadelphia, and commercial ports. No one can use them without making compensation to the respective proprietors.

The case in i Burr. 293, depended on a right founded on immemorial usage to a track path on each side of the river Tees. In the case in Dougl. 425, the right of the mayor and commonalty of the city of Eondon to make the horse-towing path on the soil of the river Thames, was derived under powers vested in them by the statute of 14 Geo. 3, cap. 91, and 17 Geo. 3, cap. 18.

*The defendants cannot ground their right to land or receive freights on another person’s freehold upon any custom, for none such exists. The late proprietaries claimed a right by way of prerogative, to grant patents for ferries; but they never pretended this claim where the pat-entee was not possessed of lands on both sides of the water, or at least had not the permission of the owners of the landings. The acts of the legislature in the instances cited by the plaintiff’s counsel, strongly negative the idea, that a person may trespass on the property of his neighbour with impunity, even by landing his boats on the rocks of an opposite shore, the freehold of another. The judgment on the demurrer in 3 Term Rep. 260, fully establishes the doctrine which must govern this case on the principles of the common law.

The usage set up by the defendant as to this ferry, will not operate as a good ground of defence. While the holders of the ferries on each side of the river enjoyed the mutual advantage of landing on each others shore, each derived a benefit from the permission of his opposite neighbour. A reciprocity of indulgence and good .offices was advantageous and necessary on both hands; but this was obligatory on neither, longer than they thought proper or deemed it convenient. Therefore when Eppele discontinued the old ferry, and sold his landing to the plaintiff, whose new ferry lay lower down the river, as the plaintiff his assignee could receive no benefit from the landing on the opposite shore, he was under no moral or equitable obligation to continue a licence originally founded on mutual advantage. The plaintiff determined this licence by forbidding the defendants and their boatmen from landing on his shore, and they persisting after such notice, are guilty of a trespass, for which they must make reparation in damages.

Cited in 3 Watts, 219, in support of the decision that the owner of a private ferry has no right to land boats and passengers at the terminus of a public highway, between high and low water mark, on the opposite margin of the river, without the consent of the owner of the soil. Cited for a similar purpose in 9 S. & R., 32; 8 Watts, 439.

Cited in 8 Pa., 294, in support of the decision that trover lies for timber cut by a stranger on the land of the plaintiff, though within the lines of a public road.

Cited in 49 Pa., 109, where the decision was that in action for damages cannot be sustained against a railroad company for cattle killed or injured upon the track at the crossing of a public road.

Cited in 78 Pa., 167, in support of the general proposition that the right to the soil of a highway continues in the owner of the land, subject only to the right of way in the public.

Messrs. Ingersoll, C. Smith and Henry pro quer.

Messrs. Duncan, Kittera and Hanna pro def.

The suits being brought to try the right of the defendants to land and receive freights on the plaintiff’s shore, it was then agreed, that the jury should give a verdict for the plaintiff with six pence damages and six pence costs, which was done accordingly.  