Scott, 81 Pa. 80 (Pa. 1876)

Chief Justice Agnew

delivered the opinion of the court,

The argument in this case took an extended range of discussion upon the pow'ers of the state, of eminent domain and police. In their leading features, these powers are plainly different, the latter reaching even to destruction of property, as in tearing down a house to prevent the spread of a conflagration, or to removal at the expense of the owner, as in the case of a nuisance tending to breed disease. In the first instance, the community proceeds on the ground of overwhelming calamity; and in the second, because of the fault of the owner of the thing; and in either case compensa

tion is not a condition of the exercise of the power. The same general principles attend its exercise in other directions, and it is generally based upon disaster, fault, or inevitable necessity. On the other hand, the power of eminent domain is conditioned generally upon compensation to the owner, and for the most part is founded, not in calamity or fault, but in public utility. These distinctions clearly mark the cases distant from the border line between the two powers, but in or near to it they begin to fade into each other, and it is difficult to say when compensation becomes a duty and when not. A case of vested ownership on the bank of a great inland fresh-water river, yet where the flux and reflux of the tide is felt, presents something of this difficulty. The well-settled law of this state is, that, while the owner of land on such a river has an absolute title in the soil to the line of ordinary high water, between this line and the ordinary low-water line, his title is qualified by the public right of navigation. This prevents his use of the soil to the prejudice of the public right, and confers on the state the right to improve the intermediate space for public use without compensation: Commonwealth v. Fisher, Richter et al., 1 Penna. Rep. 462, 467; Case of the Philadelphia and Trenton Railroad Co., 6 Whart. 25, 46; McKeen v. Delaware Div. Canal Co., 13 Wright 424, 440.

What then are the relations of the state and the owner of the flats or cripple land lying between high- and low-water lines, and over which the waters of the stream ordinarily come and go? When by the grant of the state the owner has acquired title to such lands in a state of nature, it is clearly qualified, being subject to public use, and the right to improve the shores for useful public purposes; yet no duty lies' on the owner to shut out the stream, or by making banks to exclude the natural flow of the water. On the contrary, the owner cannot limit the public right of passage in ordinary high water, by structures or deposits on or near, to the low-water line: Wainwright v. McCullough, 13 P. F. Smith 66; and even occupancy by means of wharves is subject to the public right of regulation. That the state can bank out the water is not denied, for this flows from the right to protect the public right of navigation. In this respect the owner’s right is subordinate or qualified between the two lines, and he cannot demand compensation, and on the other hand, the state cannot improve at his expense. The influx of the water either from the tide or the natural' l’ise of the river is an existing fact, and comes from no fault on his part, while the state conveyed to him only a qualified title in the soil. In her patent she has burthened her grant with no reservation, except that of a proportion of the minerals. By no contract relation can she impose on him the burthen of the public duty of banking out the stream for public purposes. It is no exercise of the police power of the state on the ground, of his fault, whereby

the expense can be laid upon him. Nor can the private interests of other owners of like lands be made a ground of banking at his expense. They bought their lands in like condition, subject to the natural flux and reflux of the waters. If after a rising circumstances make their lands better adapted to new purposes by reason of changes in business and population, certainly no duty upon their neighbor arises out of these circumstances to benefit them at his expense: Rutherford’s Case, 22 P. F. Smith 82. The interests of the state may make it a public affair, and cause her to exercise her powers for the public good, but this imposes no duty on the owner to pay the expense. He has done nothing to require him to shut out nature, acting in obedience to her own well-known general laws, subject to Avhieh all these oAvners of marsh lands bought. It would be an abuse of terms to call this an exercise of the police power of the state, in the sense of enforcing a remedy against the owner for a nuisance or a public injury.

But we have been referred to the case of Crowley v. Copley, 2 La. Ann. 390, as a precedent. It is not, however, in point. The question of the power of the state to levee the Mississippi at the expense of the owner of the land was not made in that case. The question made by the owner was, whether the laAV of Louisiana compelling the owners of lands along the Mississippi to bear the expense of levees, to prevent the overfloAv of the river in high floods, was a tax contrary to the Act of Congress forbidding the imposition of taxes within five years after his purchase of the land from' the United States. The court held that the assessment for levees was not a tax within the meaning and intent of the Act of Congress. No question was made whether the state Act of 1842 Avas constitutional on other grounds. It seems to have been taken for granted that it Avas. Besides the case is not parallel to this. The overflow of the Mississippi in high floods is attended with great destruction of property far inland, as Avell as along the river banks, OAving to the low grade of the whole country. The case is one of great public calamity, where the property of the owner may have to be destroyed, as in the case of a great conflagration, to save the mischief from spreading to the dire injury of the public. This could be the only justification for the private injury. Yet even this is doubtful. The reason why a private building may be demolished to prevent the spread of fire is, that it is called for by the immediate necessity of the case. It must be done on the instant, and because of an actual necessity. But could the state, in a time of security, when no fire is present, pull down buildings without compensation at certain points, where it might be supposed the public interest Avould be served if a fire should happen ? No one would concede this monstrous proposition. The state may open or widen streets, and do many things for public convenience and security, but in doing so she exercises her poAver

of eminent domain, and allows just compensation either in benefits or money, or both, according to the circumstances. So the states along the Mississippi may levee the river for public protection, but it seems scarcely consistent with just rights of property that they should do this by general law at the expense of the owners of private property.

A sudden breach and instant danger might change the rule. Mr. Cooley, in his Constitutional Limitations, states the case as a general principle, on the authority of Crowley v. Copley, but without any reference to the precise question decided, or the ground of the exercise of the power. It would seem probable he attributed it to the exercise of the power of eminent domain, as he begins the next sentence with these words: “ And the right of eminent domain is sometimes exercised in order to drain considerable tracts of country.” But if it be this power, the condition of its exercise would certainly be compensation in some form, benefits it might be. A better view of the relations of the owners of land on the Mississippi, it seems to me, is that of Chief Justice Shaw, in the Commonwealth v. Alger, 7 Cushing 86-7, when discussing the power of the state to prevent an owner of tide-water land from removing a natural embankment, to the prejudice of the public. “Principles,” he says, “ are tested by taking extreme cases. Take the case of the river Mississippi, where large tracts of country, with cities and villages, depend for their protection upon the natural river bank, which is private property. Perhaps, under such circumstances, it might not be too much to say, not only that the owner cannot do any positive act' toward removing the embankment, but that he may properly be held responsible for the permissive waste of it by negligence and inattention.” Here is no intimation of a liability to throw up new banks, but only a moderate expression of opinion of liability for waste. A natural marsh, between high- and low-water lines, has no such features as the Mississippi lands, and no such great public calamity to guard against. No one is interested but the owner of like marsh lands, having a like qualified title, subject to a like natural flow of the river. So much may safely be said of the original or natural state of the property. But where the state has banked out the water, and the owner is left in possession of the improvement made by the state, under her sovereign authority and at her own expense, it seems to me he stands in a new and different relation. The state having, by her own-authority, taken the land between high- and low-water lines out of the public use, has, in effect, appropriated it to the use of the owner of the qualified title, and in effect conferred upon him an absolute .title. She has thus benefited him, and it is but just that the duty of repair should now devolve upon him. To this extent we may, I think, conclude that the Act of March 25th 1848, under which this proceeding took place, is constitutional: Pamph.

L. 1848, p. 250.’ Its title is fairly descriptive of its tru'e purpose, though the act having been passed before the constitutional amendment of 1864,'the title has not the same force in interpretation it would have since. It is entitled, “ An Act to provide for the repairs of the meadow banks upon the Delaware front, in the county of Philadelphia, above the city of Philadelphia,” &e. The purpose of the act was to compel repairs of existing meadow-banks, not to construct them. The only question, therefore, remaining is, whether the act has furnished a constitutional mode of proceeding, to bind the owner of the land to the payment of the expense of the repairs. The following are all its material provisions : “ It shall be the duty of the commissioners upon complaint by any person owning property fronting upon such river, or liable to be damaged by the overflow of the same, that said banks, or any part thereof, are out of repair, or in an unsafe or insecure condition, to give notice forthwith to the owner or owners of such part or portion to repair the same within forty-eight hours after such notice, and in case such owner or owners shall neglect or refuse to cause such repairs to be made within the time aforesaid it shall be the duty of such commissioners to cause the said banks to be well and thoroughly repaired, &c., and they shall enter the same as lien against the said premises and the owners thereof.” The law then provides for a scire facias to enforce payment, and declares “* that upon the trial of such action the said defendant shall only be permitted to aver and prove in defence that the lien, in whole or in part, has been paid since the same was filed, and that all matters necessary for a recovery on part of the plaintiffs shall be considered as proved by the production of the lien and scire facias thereon at the time of trial.

/The law, it will be seen, provides no mode of determining the necessity for repair, not even the judgment of the commissioners, for they are bound on complaint, forthwith to give notice, and the owner is bound, within forty-eight hours after notice, to make the repairs, and on default, the commissioners shall do the work at his expense. Whether the bank actually needs repair, or the injury complained of, if any, is a total destruction of the bank, demanding reconstruction, or a mere repair, which the owner is bound to do, is not to be ascertained before the liability is settled upon him. He is to pay at all events, and this case itself is evidence of the necessity of the provision to determine the nature of the thing complained of, for we have a finding of $6445.66 against the defendant, a sum which looks,more like the price of reconstruction than of repair. Repair is all this law provides for. Perhaps some allowance might be made, and the clause requiring the commissioners u to cause the banks to be well and thoroughly repaired,” might be interpreted as inferentially requiring an examination and

decision upon the duty of repairing before they proceeded to do it. Rut we are met by the proviso, which .forbids any defence but payment. There can be.no inquiry into the fact whether the commissioners actually did determine it to be a case of necessary repair, whilst they may have gone on different grounds. An act -which subjects a man to a penalty of over six thousand dollars for not doing the work for which complaint was lodged, should clearly devolve the duty of decision upon some impartial tribunal. The case of Kennedy v. The Board of Health, 2 Barr 366. is not in point. There the 27th section of the Act of 29th of January 1818, grounds the right of the board to abate the nuisance in express words in the opinion of the board that the nuisance tends to endanger the health of the citizens. This is an essential pre-requisite, and the citizen is absolutely entitled to the judgment óf the board on this point. This feature is at the foundation of the decision. In that case the constitutional question was not raised. But here the learned judge below was of opinion that the Act of 1848 does not furnish due process of law, within the protection of the 9th section of the Declaration of Rights, that no one shall be “ deprived of his life, liberty or property unless by the judgment of his peers or the law of the land.” In this view we concur. What is meant by the law of the land has been fully discussed in Craig v. Kline, 15 P. F. Smith 413, and the cited authorities. I shall not enlarge upon it. Suffice it to say, the law must furnish some just form or mode, in which the duty of the citizen shall be determined before he can be visited with a penalty for non-performance of the alleged duty. The proceeding must be in its nature judicial, though it is not necessary it should be before one of the ordinary judicial tribunals of the state.

Judgment affirmed.