
    Levi Delosier et al., Plffs. in Err., v. Pennsylvania Canal Company.
    The boundaries of a tract of land taken by right of eminent domain for a reservoir are, -without a deed, sufficiently defined by running a line at a stated level, mapping the tract included, cutting down the timber thereon, compensating the owner for the number of acres included, and then flooding the same, to sustain ejectment for the tract by the commonwealth’s grantee.
    
      Note. — Eor proof of boundaries of land taken by the state for canal purposes, see Pennsylvania Canal Co. v. Dunkel, 101 Pa. 103; Pennsylvania Canal Co. v. Harris, 101 Pa. 80; Smucker v. Pennsylvania B.. Co. 188 Pa. 40, 41 Atl. 457. When the state acquired land for canal purposes it secured a fee, which passed to its grantee, and not a mere easement. Wyoming Coal & Transp. Go. v. Price, 81 Pa. 156; Haldcman v. Pennsylvania O. R. Co. 50 Pa. 425; Craig v. Allegheny, 53 Pa. 477. Though no damages were ever assessed and paid, the owner not having applied to have tis damages assessed within one year as required by the act of April 9, 1827. Robinson v. West Pennsylvania R. Co. 72 Pa. 316. See also Farnham, Waters, p. 452, as to nature of estate or interest acquired in land taken for cenal purposes.
    Land taken for the reservoirs of the Pennsylvania canal, under the statutes regulating its construction, although not entirely covered except during floods, was held by the commonwealth in fee, and passed in fee to the purchaser upon the sale of the canal in 1857.
    (Argued May 24, 1887.
    Decided October 3, 1887.)
    July Term, 1886,
    No. 115,
    E. D., before Merotjr, Cb. J., GORDON, Truetkey, Sterbett, Greek, and Clark, JJ.
    Error to tbe Common Pleas of Blair County to review a judgment for tbe plaintiff on a point reserved in an action of ejectment.
    Affirmed.
    Tbe facts as tbey appeared at tbe trial in tbe court below before DeaN, P. J., were stated in bis charge to tbe jury which was as follows:
    This is an action of ejectment brought by tbe Pennsylvania Canal Company against Levi Delosier and others for a tract of land in Blair township, containing about 129 acres. In 1839 tbe commonwealth commenced tbe construction of tbe eastern reservoir, an improvement designed to store water for tbe use of tbe Pennsylvania canal. Tbe bed of tbe reservoir was located on tbe southwest branch of tbe Juniata river, about 1% miles south of tbe main line of tbe canal, with which it was connected by a feeder. Tbe whole area of tbe reservoir is about 539 acres, 300 acres of which, tbe portion immediately at and adjoining tbe breast, was purchased by tbe commonwealth from Judge Joseph McCune. Tbe remaining portion immediately adjoining tbe McCune tract belonged, at tbe time of tbe construction of tbe reservoir, to Dr. Shoenberger, John L. Ingram, Patrick McOloskey and, perhaps, to other owners. That which belonged to Dr. Sboenberger, to tbe extent of 129 acres, is tbe portion in dispute.
    Tbe defendants on tbe evidence bere bave whatever title or right to tbe possession remained in Sboenberger, or those claiming under him, after tbe abandonment of tbe reservoir; and tbe plaintiff has whatever right or title tbe commonwealth bad or acquired from Sboenberger at tbe time of tbe construction of tbe reservoir.
    It is admitted on both sides that tbe reservoir was abandoned and tbe water drawn off in 1881 or 1882. Tbe issue turns, it .seems to us, upon a question of law which is entirely for tbe court. At tbe time of tbe original laying out of tbe reservoir, as shown by tbe map of Morris, chief engineer, filed in tbe auditor general’s office in 1839, tbe land intended by tbe commonwealth to be embraced within tbe area of tbe reservoir included this land in dispute.
    Thomas T. Wierman, in charge of tbe construction of tbe work, ran tbe line of tbe land intended to be embraced within tbe boundaries in 1816 or 1847. This line, be testifies, was run so as to include all land which might be covered by water at tbe height of four feet above tbe overflow or waste way at tbe breast of tbe dam, and included so much of Shoenberger’s land as is now in dispute. This, as nearly as be remembers, was in 1846 or 1847 that be ran that line, after or about tbe time tbe work was completed. At tbe time of tbe construction of the reservoir much of tbe Sboenberger tract was covered with timber. This, under tbe direction of tbe commonwealth’s officers, was cleared off; and although Shoenberger took the timber, it was claimed by tbe commonwealth; and as it formed part of tbe compensation to be paid to tbe contractors for clearing they were allowed $700 for it.
    According to tbe testimony of Wierman, surveys and maps of tbe whole 539 acres were made by him, including tbe Sboenber-ger portion, and transmitted to tbe canal commissioners. Search has been made for these maps, but they bave not been found and are not produced bere. Wierman testifies to tbe running of tbe lines and tbe making of tbe maps, and be remembers distinctly of transmitting them by stage in a tin case to the commonwealth’s officers at Harrisburg.
    On March 6, 1847, Sboenberger made application to tbe canal commissioners for compensation for tbe damages caused by the taking of these 129 acres; and $2,450 were awarded him in full, and that amount was paid to him. Whatever the commonwealth did, by way of taking land for the purpose of this reservoir, was done under and by authority of the legislation of. 1836 and subsequent statutes for the construction of public works, or internal improvements, between the west and the east. The reservoir was not a distinct improvement, it was part of the canal just as much as any other portion not the actual boat channel was part of the canal. The legislation authorizing the construction of the canal authorized the construction of sufficienl reservoirs to make the canal navigable in dry seasons. It is not. material that the construction of canal and reservoir were not simultaneous. The reservoir might be constructed years after the completion of the main channel, under the authority of the general legislation authorizing the construction of the internal improvements.
    Under our present impression of the law we instruct you that if the commonwealth in fact appropriated this land for the purpose of the reservoir, then it took an absolute estate in the land in perpetuity, and that estate is vested in this plaintiff.
    The question, then, is: Did the commonwealth appropriate this land ? It was not necessary it should have a deed. It was not necessary it should actually make permanent monuments upon the ground to show the extent of its claim. The map of Morris, the subsequent surveys of Wierman and Garrigues verifying that map of Morris, and the testimony of Wierman showing that he ran the lines and made maps himself at the time show conclusively that it was intended by the commonwealth to appropriate this land up to the line four feet above the water level at the waste weir of the reservoir. This testimony is not disputed; and we say to you that that was sufficient appropriation of the land to give title to the commonwealth, to the extent to which it could acquire title under the legislation then existing.
    On the part of the defendants it is argued that an estate in perpetuity was not taken; that the commonwealth was the owner only of that portion of the land which formed the bed of the canal proper, and that the statute expressly stipulated that nothing but an easement could be acquired to any land taken for any other purpose; and as the reservoir formed no part of the bed of the canal on its abandonment the land reverted to the former owners, and therefore there can be no recovery in this case; or that, at most, tbe plaintiff cannot recover for more land than was embraced within the water line from the sluice, being about eighty acres. We desire to give a further examination to this question, and we therefore reserve our answer to this point made by the counsel for the defendants.
    The counsel for the defendants has also submitted the following written points:
    1. The commonwealth, being the owner of the McCune tract, .and having erected thereon a dam whereby the water backed on the land, did not acquire a fee iri any part of said land.
    
      Ans. This point is reserved.
    2. If, in fact, the canal commissioners only appropriated the right to back water upon the land of Dr. Shoenberger, leaving to him the use of the land consistent therewith, the plaintiffs ■cannot recover.
    
      Ans. The evidence shows, without dispute, that the commissioners undertook to appropriate the land. The point is denied.
    3. If the commonwealth, in fact, appropriated only so much ■of the land of Dr. Shoenberger as is embraced by the water line •from the sluice, about 80 acres, as is shown by Mr. Garrigues, the verdict cannot exceed that line.”
    
      Ans. This point is denied.
    4. There being no description of the land in the petition or receipt and nothing thereon from which a survey could be made, the plaintiff cannot recover.
    
      Ans. This point is denied.
    Verdict directed for the plaintiff for the land described in the writ, subject to the opinion of the court upon the point reserved.
    Afterwards the court filed the following opinion:
    It is not disputed that the commonwealth did, by the construction of the breast of the dam or reservoir upon the land purchased from McOune, back the water over the land of defendants, at that time the property of Peter Shoenberger. . Perhaps the mere backing of the water, without more, would have given no title to the commonwealth. But in considering this question we cannot leave out of view the other undisputed facts in the ■case.
    These facts were clearly proven and were not disputed: The ■canal commissioners established as the area to be appropriated so muck land as would be covered by a water line four vertical feet above tbe waste weir at tbe western end of tbe reservoir. Tbe evidence showed beyond dispute that sucb a water line would embrace or include tbe land in controversy. Two maps were put in evidence certified from tbe auditor general’s office: one made in 1839 by Elwood Morris, and one made in 1840 showing tbe McCune survey. Tbe water line proposed on each of these maps for tbe reservoir afterwards constructed would take in this land, but tbe one made in 1840 did not purport to plot tbe entire reservoir site. Tbe deed from McCune to tbe commonwealth in 1841 specifies tbe water line as 4 feet in height above tbe water way at western end of dam. In 1846 Thomas Wierman, engineer for tbe state, ran tbe line around tbe entire reservoir tract and made notes of bis survey; be marked tbe line with stakes; be ran tbe line on tbe Sboenberger tract and others; made maps of bis work and transmitted them to tbe commissioners.
    These maps are now lost, but a map of tbe line on Shoenber-ger’s land was made at bis, Shoenberger’s, request, who made an application to tbe canal commissioners for damages, claiming damages per acre for 128 acres. He was awarded $2,460, and afterwards took tbe timber from tbe land, which, added to tbe $2,460, made about $25 per acre for tbe 128 acres. Tbe number of acres in tbe tract now in dispute, by exact measurement, is 129 acres and 42 perches. A large portion of tbe land during tbe existence of tbe reservoir was constantly flooded. Sometimes it would be flooded back to tbe 4-foot vertical water line and cover tbe whole. From a survey made by Mr. Garrigues, engineer, a map of which was put in evidence showing tbe line run by Mr. Wierman in 1846 to correspond with tbe present 4-foot vertical line above tbe water way at western end of dam.
    This evidence was not contradicted; tbe credibility of the witnesses was not questioned. It shows more than a mere flooding of defendants’ land by backing tbe water; it shows a distinct, unequivocal appropriation of tbe land by tbe commonwealth for reservoir purposes; and if this appropriation was by authority of law tbe fee of this tract, 129 acres and 42 perches, was vested in tbe commonwealth, and by tbe sale of the main line in 1851 passed to tbe plaintiff.
    Tbe acts of April 11, 1825, P. L. 238; April 9, 1827, P. L. 192; March 24, 1828, P. L. 221; March 21, 1831, P. L. 181; July 19, 1839, P. L. 631; and January 21, 1846, with the constructions put upon them in Com. v. M’Allister, 2 Watts, 197; Haldeman v. Pennsylvania C. K,. Co. 50 Pa. 425; Pennsylvania Canal Co. v. Harris, 12 W. N. C. 432, clearly gave the canal board authority to appropriate this land for canal purposes. The mode of appropriation was sufficient to invest the commonwealth with the fee; and as a consequence of the sale of the public works in 1857 this plaintiff took the same title held by the commonwealth.
    It follows, then, if this land was flooded by the commonwealth, after an authorized appropriation of it by its officers, the defendants have no title or right of possession.
    This point is denied.
    Judgment was accordingly entered for the plaintiff.
    The assignments of error specified respectively the answers to the defendants’ four points, and the action of the court in directing a verdict for the plaintiff.
    
      Samuel S. Blair, for plaintiffs in error.
    The title of the plaintiff below depends entirely upon the statute and the payment of damages to Dr. Shoenberger, under whom both parties claim. The defendants below contend that the commonwealth acquired but an easement in the land, and that as it has been abandoned the land is now open to their unrestricted enjoyment, they having succeeded to the title of Dr. Shoenberger.
    Although the statute of 1827, in connection with that of 1826, gave a fee to the bed of the canal it was a determinable fee — to cease on the abandonment of the canal. Judge PeabsoN, who well understood the general sentiment, says in Haldeman v. Pennsylvania C. P. Co. 50 Pa. 432, that he was constrained by Union Canal Co. v. Young, 1 Whart. 410, 30 Am. Dec. 212, and Com. v. M’Allister, 2 Watts, 190, to hold the title a fee simple absolute, although it did not accord with his views and was in conflict with the opinion of the legal profession through the state, and the habits and practices of the people.
    And even so lately as the case of Wyoming Coal & Transp. Co. v. Price, 81 Pa. 156, the present chief justice declares that if the question were res integra it would be otherwise decided. The doctrine of an absolute fee in the bed of the canal is, of course, now protected by the rule of stare decisis.
    
    
      But tbe act of 1827, while it changed, the mode of redress for cutting the canal through the owner’s land, extended the remedy to injuries “by interfering in any manner with his rights of property.”
    Bedress for injuries by cutting the canal through the land was to be by giving up the fee upon compensation by the state. The act is silent with regard to any interest the state might acquire through compensation for any other interference with the rights of property. The inference is legitimate that the state did not intend the acquisition of a fee by any such interference. Com. v. Snyder, 2 Watts, 418; Vanhorne v. Dorr anee, 2 Dali. 316, 1 L. ed. 396, Bed. Gas. No. 16,857.
    There can be no doubt that all parties understood the damages to be put compensatory of an easement.
    Assuming that the commonwealth would take a fee it was necessary for the plaintiff to define the land appropriated. No description of the land was made. There were no enduring memorials of what was actually taken, as there would be when the land is taken for the canal. The bed and berme bank would mark the limits. There were no marks showing the water line. The effort was to fix a line from the deed of McCune whiefi established the line of the purchase from him by assuming a level four feet vertical above the bed of the waste way.
    The fact was that it required a flood to raise the water to the level of the waste way. At the ordinary stage of water Shoen-berger’s land was almost clear. The adjoining owners cultivated their land. The fact that in making the purchase from McCune they bounded the land by a water-level line was not even admissible evidence of the Shoenberger line. It might have been 50 feet above the waste way on the McCune purchase, but it would not follow that the same line would apply to the owners above who were paid damages. The question of location is essentially a question of fact, and it should have been left to the jury to determine what land was actually appropriated.
    
      Daniel J. Neff, for defendant in error.
    The acts of assembly and all the authorities were reviewed in the case of Wyoming Coal & Transp. Co. v. Price, 81 Pa. 174, and it was held that whenever land was taken for permanent use, under the acts in question, the commonwealth acquired an estate in perpetuity.
    Two kinds of occupation were plainly in view, — one permanent and continual; the other 'temporary or of limited duration, such as might be required for the deposit of materials, or accommodation of the workmen, while the canal was in process of construction ; the former of the land occupied by the canal and its necessary works, and the latter of that required to be used only during the period of construction. Haldeman v. Pennsylvania C. R. Co. 50 Pa. 425; Craig v. Allegheny, 53 Pa. 479.
    The fact that all the land was not continuously flooded, or the permissive occupancy of a small portion of the land by Shoen-berger, or his successors, occasionally for pasture, did not affect the title of the commonwealth. Such occasional possession or permissive occupancy was not a hostile or adverse holding, it was in subservience to the commonwealth’s title. Union Canal Co. v. Young, 1 Whart. 425, 30 Am. Dec. 212; Buckholder v. Sigler, 7 Watts & S. 159; Craig v. Allegheny, 53 Pa. 477.
    It was held in Pobinson v. West Pennsylvania R. Co. 72 Pa. 316, that the commonwealth acquired the fee in the basin also, the portion excepted in the Robinson deed, although the basin was not defined or described, but merely occupied and no damages were assessed or paid and no release given.
    There was a more exclusive dominion exercised over the reservoir than over the canal itself; for during a portion of the year there was no water in the canal, and it was not used for purposes of navigation.
    Under the act of 1826 the jury were required to value the land and damages. The act of 1827 made no essential change in this respect. Under either act consequential damages could be allowed.
    In Com. v. Snyder, 2 Watts, 418, there was no appropriation of complainant’s land, no defining of it by a property line. It was a case of consequential damages. The ownership of land was not under consideration.
   Pee OueiaM:

The boundaries of the land seized for the use of the state were sufficiently defined, and that the fee thereto vested in the commonwealth is a matter now so well settled by previous decisions that discussion concerning it is unnecessary.

The judgment is affirmed.  