#### Hulings *v.*Lewis.

The Act of Dec. 21, 1784, providing for the sale of the lands within the purchase made by the commissioners appointed for making a further purchase of all the residue of the unpurchased lands within the limits of the state, authorizes a sale of islands within navigable streams; and such islands may be sold under said Act unless embraced within the territory excepted by the Act of April 8, 1785.

Oct. 3, 1888.

Error, No. 90, Oct. T., 1888, to C. P. Forest Co., to review a judgment on a verdict in favor of the defendant, in an action of ejectment, by J. D. Hulings and S. H. Haslett, against J. T. Lewis, Admr. c. t. a. d. b. n. of U. W. Cook, deceased, at Feb. T., 1886, No. 36. Green, J., absent.

The writ was for two acres and nineteen perches of land in Kingsley township. Plea, not guilty.

At the trial, before Brown, P. J., it appeared that the land, in controversy was an island known as Green Island, in Tionesta creek. *423In 1865, the plaintiffs made application for the island under the Act of Jan. 27, 1806. An appraisement was made, the purchase money-paid, and a warrant issued to the plaintiffs on July 20, 1865.

The defendant’s testator was the owner of warrant No. 5266, granted to George Mead on Feb. 26, 1794. The exterior lines of this warrant, as located on the ground, included the island in dispute. The plaintiff offered evidence which tended to show that the Tionesta creek was a navigable stream to a point above the island. The Act of March 4, 1827, declared Tionesta creek a public highway from its mouth to a point about twenty miles above the island in controversy.

The court charged as follows, by Brown, P. J.:

“ The island in controversy is admittedly within what is designated in our books as the ‘ new purchase.’ By Act of 1784, the lands embraced within the ‘ new purchase ’ were, without exception, made subject to sale. No distinction appears in this Act between the mainland and islands, as to the mode in which title shall be obtained. By an Act passed in 1785, the islands in the river Susquehanna and its branches, the river Delaware, the river Ohio and -the river Allegheny were excepted from sales in the manner prescribed for sales of the main-land; and, by legislation, the mode of procuring title to those islands was prescribed.

[“So far as the island in controversy is concerned, we think that the Act of 1784 is so broad that it left this island subject to be appropriated and sold, and included in a survey of the main-land.] [i]

“ While the legislation of the state thus stood, a warrant was granted to George Mead, a survey was made including the island, and, pursuant to this, a warrant and patent were issued to George Mead. And, admittedly, whatever title was vested in George Mead has become vested in the defendant. Standing thus, we dispose of the case by answering the points that have been presented.

“ The defendant’s point is answered in the affirmative.’.’

The defendant’s point was as follows :

“ It being admitted that the island described in the writ is situated within the exterior lines of the tract of land granted by the Commonwealth to one George Mead in 1794, and that the title of the said George Mead to the said tract of land is now vested in the defendant, the verdict of the jury should be for the defendant.’

Verdict for defendant, and judgment thereon.

*The assignments of error*specified, 1, the portion of the charge included in brackets, quoting it; and, 2, the answer to defendant’s point, quoting it.

*B.J. Reid,*with him *A. B. Reid*and *T. F. Ritchey,*for plaintiff in error.

On the undisputed facts in evidence, Tionesta creek was a navigable stream, per se, prior to the Act of 1827, which only recognized and declared a pre-existing fact: The Daniel Ball, 10 Wall. 563; The Montello, 20 Wall. 430; Angelí on Water-Courses, *424694; Cooley, Const. Lim. *589; Morgan *v.*King, 35 N. Y. 454; Washburn on Easements, *397; Treat *v.*Lord, 42 Me. 352; Lancy *v.*Clifford, 54 Me. 489; Hickok *v.*Hine, 23 Ohio, 523; s. c. 13 Am. R. 258.

The importance of the fact of actual navigability, independent of any Act of Assembly declaring certain designated streams navigable, is shown by the Act of 1725, 1 Sm. L. 168, forbidding the erection of any bridge or other obstruction “ over any creek or river within this province .... that shall or may anywise stop or hinder the navigation of any such sloop, shallop, flat, or other craft, or float of logs.”

In Pennsylvania, we have followed the civil law definition of navigable rivers, rather than that of the common law, and we hold as navigable not only those streams which are subject to tides, but all rivers capable of being navigated. Flanagan *v.*Phila., 42 Pa. 230.

If, then, the Tionesta creek was in fact navigable by nature, from its size and capacity, as the proofs clearly establish, it stood in no need of the Act of 1827, P. L. 274, to declare it a navigable stream, any more than the Ohio and Allegheny required the Act of 1798, 3 Sm. L. 320, to make them navigable.

If a stream is not per se navigable, an Act of Assembly is powerless to make it so, without the consent of the riparian owners, except in the exercise of the right of eminent domain, and then only by making compensation for private property converted to public use: Cooley, Const. Lim. *591; Morgan *v.*King, 35 N. Y. 454; Shrunk *v.*Schuylkill Nav. Co., 14 S. & R. 80; Martin *v.*Bliss, 5 Blackf. 35 ; s. c. 32 Am. Dec. 5-2.

From the earliest period of our colonial history, the islands in our navigable streams were treated as not embraced within the laws, usages, or decisions applicable to the main-land. The general term “ land” was not understood as including the beds of such streams or islands therein: Fisher *v.*Carter, 1 Wallace, Jr. 80; Shrunk *v.*Schuylkill Nav. Co., 14 S. & R. 79; Fisher *v.*Haldeman, 20 Howard, 193; Johns *v.*Davidson, 16 Pa., 520; Stover *v.*Jack, 60 Pa. 34.0; Sergeant, Land Law, 193-4. See, also, Penn’s directions to his commissioner’s Hazard’s Annals, 530.

Under the uniform rulings of this court cited above, we think that the word “ lands ” in the Act of 1784 should be held to include only the main land, and to exclude islands in navigable streams.

When the framer of the Act of April 8, 1785, undertook in § 13, 2 Sm. L. 322,to enumerate the streams in the “new purchase,” the islands in which were to be excepted from the operation of the Act, he demonstrated his ignorance of the geography of that portion of the state, by including the Delaware river, no part of which is within fifty miles of the nearest point of that purchase. The enumeration was no doubt meant to be a complete one of all the navigable streams in the new territory — but it was palpably erroneous and incomplete, and ought to be construed liberally, to further *425the constant policy of the officials and courts of the Commonwealth, in reserving all islands in navigable streams from the operation of the laws relating to the main land.

If there be any question as to the time when the Tionesta was declared by law a public highway, as compared with the date of the Act of 180b, under which we claim title, — we answer that it is immaterial whether the declaring Act was prior to the passage of the Act of 1806 or not. “ The time when application is made for an island is the time when the character of the territory is to be ascertained Allegheny City *v.*Reed, 24 Pa. 39.

*C. Heydrick,*with him *CarlI Heydrick*and *Samuel Dale Irwin,*for defendants in error.

The land in controversy was purchased by the “ commissioners appointed for making a further purchase of all the residue of the unpurchased lands within the limits of the state,” commonly called the “ late purchase.” The lands within this purchase were put in. market by Act of Dec. 21, 1784, § 6, 2 Sm. L. 272, providing for applications at the land office for “ the lands within the purchase made or to be made by the commissioners aforesaid, —the lands within this state, appropriated for the redemption of depreciation certificates, and the donation lands to the officers and soldiers of the Pennsylvannia line *only*excepted.” The legislature undoubtedly understood this to include the islands in great rivers and small streams, when, by § 13 of the Act of April 8, 1785, they expressly withdrew from the market upon the common terms the islands in the Susquehanna, and the East and West branches thereof, and in the Ohio, Allegheny and Delaware, and authorized the sale of the islands in these specified rivers upon other terms; thus leaving the islands in all the smaller streams open to appropriation on the common terms.

The cases cited by plaintiffs in error will be found, upon a careful examination, to be in entire harmony with our position. They follow the lead of Hunter *v.*Howard, 10 S. & R. 243, which held, first, that § 13 of the Act of April 8, 1785, withdrawing the islands in the Susquehanna and the East and West branches thereof, and in the Ohio, Allegheny and Delaware from sale upon the common terms, was in harmony with the practice of the land office under the provincial government, reserving the islands in the *great*rivers; and, second, that that Act, and not the former practice of the land office, was the foundation of all land-titles in the “ late purchase.” Fisher *v.*Carter, Fisher *v.*Haldeman, and Johns *v.*Davidson, simply reiterate what is said in Hunter *v.*Howard. The first two cases concerned an island in the Susquehanna, one of “the great rivers of Pennsylvania.” In the other case, the island in controversy had been expressly withdrawn from appropriation. upon the common terms by the Act of Jan. 27, 1806.

The Act of 1806, In § 1, provides as follows: “The officers of the land-office, upon application to them made for a warrant of sur*426vey for any unappropriated island in the rivers Delaware, Ohio and Allegheny, or any of their branches, which are by law declared public highways, shall and they are hereby directed to issue such warrant under the conditions and limitations hereinafter prescribed.” Before its passage, George Mead had acquired title to the island in question under the then existing laws; and, it has no application to islands in Tionesta Creek, which was not declared a'public highway until 1827.

Oct. 29, 1888.

Per Curiam,

The learned judge of the court below ruled correctly that the Mead warrant embraced the island in controversy, and properly directed á verdict for the defendant.

The judgment is affirmed.