Smith, 8 Watts 434 (Pa.)

The opinion of the Court was delivered by

Gibson, C. J.

Some of the points presented are comparatively unimportant; and as it is intimated that the cause has not been brought here merely for reversal, we have turned our attention particularly to those which involve principles of right.

Over the surface of a public river, riparian owners have no peculiar right. Such is the principle of Carson v. Blazer and Shrunk v. The Schuylkill Navigation Company, which seem to have put the public rights of navigation and fishery on the same footing. The right of navigation, transverse or otherwise, being enjoyed in common, is susceptible of exclusive appropriation only by grant from the public, to whom it belongs; and we have, consequently, no such

thing as a ferry by prescriptive right, or presumptive grant of exclusive navigation from length of time. The doctrine of nullum tempus alone, would prevent a title drawn from a source so like the statute of limitations, front being set up against the commonwealth or her grantee. The foundation, however, of what is nearly as effective, is the power whiph the owners of the shores have to control the subservient and indispensable right of embarkation and landing. ■ The existence of such .a power over even the terminus of a public road, is established by Chambers v. Fury and Cooper v. Smith, cited in the argument, as well as by Chess v. Manawn, 3 Watts 219. The presumptive grant of an incorporeal right, sustained as it .is by analogy to the statute of limitations, is founded in an adverse assertion.of right^and nan have no place in respect to a thing ofxvhich there cap not be an adverse use; consequently, it can havu no place in respect to a river which is navigated by general licenser, pursuant to which the individual does nothing to challenge the general right. The principle-of these presumptive grants has been carried further,fin some respects, than the admitted foundation of it would seem to warrant;- as in the case of ancient lights, which happen not to be an annoyance to the premises they serve to overlook, and which would' rather encourage a supposition of indifference on the part of the owner than a want of right to obstruct tljgm, inasmuch as no man is bound to enclose his ground to prevent his neighbour from looking at it. Even as regards acts of apparent usurpation, the rule is that they must be such as in their nature carry with them an assertion of right. Thus in Doe v. Reed, 5 B. & A. 232, the jury were not allowed to presume a conveyance after a possession of fifty years, as a creditor under a judgment; and Chief Justice Abbd'fadded, that these presumptions had been carried too far. Doubtless they have, where the possession or use bore nothing on its face like a pretension of title. In point of reason, no lapse of time, bearing any proportion to the period of the statute, ought to require an exertion of a man’s right merely to show that he (tad not parted with it, when there was nothing in the situation or possession of the property to indicate that he had; and such is the principle which ruled the case of Butz v. Ihrie, 2 Rawle* 218, where it was held that the reservation of a right to swell water on the land of an adjoining owner, was not lost merely because it had not been exerted for thirty-two years. Yet a window, which enables the occupant of it to pry into the domestic economy of his neighbour, is a nuisance whose continuance can be explained only by a want of right to abate it. Perhaps the apparent difficulty of reducing all the decisions on this head to principles of reason, arises from a tendency in the judicial mind to generalize, without stopping to dispose of specific differences. The rights of the parties here, however, are determinable by the plaintiff’s occupancy, not of the stream, but of the shore.

Had the judge therefore charged, as it is.imputed to him, that an

exclusive right might be gained by an exclusive occupancy betwixt the shores, he would have been in error; but he pointedly said, that no other advantage could be had on the water than was had from the ownership of the land. But the wrong charged in the declaration is a disturbance, not of the plaintiff’s easement in the landing, but of an alleged right to an ancient ferry; and hence, it is argued, the evidence did not support the count. Had there been a prayer for direction to that effect, it must have prevailed, for the variance would have been fatal; but nothing like it is perceptible on the record: and, indeed, to have defeated the plaintiff on that .ground, would only have protracted the contest, by reserving the determination of the right for another law suit. In starting the point here, the defendant has slipped his time.

The title to the locus in quo is in the defendant’s lessor, and a .material question was whether the plaintiff had not acquired an exclusive right to use it, by a presumptive grant of one of the lessor’s predecessors; as to which, the judge charged that a grant .presumed from exclusive enjoyment is also exclusive. The extent of the right is doubtless determinable by the nature of the use; and the principle admits of a ready application to positive enjoyment, in order to carry the right to the extent of it, the difficulty being to .know whether it may not be carried even further by a want of actual participation on the other side. There is a plain implication of exclusive right, where the full benefit of the supposed grant could not be had from a concurrent enjoyment of it; as in the case of a pew barely sufficient to accommodate the occupant’s family. In the case of a way, the right is not necessarily exclusive, as was admitted in Kirkham v. Sharp, 1 Whart. 333. The rule seems to be, that the grant shall not be extended beyond the purpose to be .answered by it; nor ought it in reason to be. The presumption being that there was an actual grant, there is no room to suppose the grantee paid for, or the grantor parted with, more than was adequate to the purpose. Accordingly, in Martin v. Goble, *2 Camp.* 322, a plaintiff who prescribed for a window which admitted more light than was necessary for the business of a madhouse, of which it was part, was not allowed to maintain an action for the ¡erection of a wail which shut out the excess. The proper inquiry below, then, was whether the privilege to land passengers on the .defendant’s soil, would have been curtailed by a concurrent use of it; and it presented a question of fact which was, perhaps, not of easy solution. The place was used only at high, or very low water, and at irregular times of the day. A common landing might be alternately used without collision, by boats plying exactly at stated intervals, and even that is barely possible; but the difficulty is insurmountable where, as on our fresh water rivers, the ferry boat plies whenever a passenger presents himself. In all such cases, the jury ought to presume the right to be exclusive, whenever its value would be lessened, in the least degree, by participation. In

addition to the presumption from enjoyment, there was at least some parol evidence of ah exclusive grant, which was-also for the consideration of the jury.

Another material question was whether the use of the easement had been so notorious as to give notice of it to subsequent pur-' chasers. At common law, ap innocent purchaser of a legal title' took it clear of trusts and equities, but not of legal conveyances,' whether known to him or not; but our recording acts, which designed to make all conveyances matter of record notice, put even1 legal conveyances on the footing of equities. An actual convey-' anee of a title to an easement is a legal one, which admits of registration, but a conjectural one does' not; and hence a necessity to affect a purchaser of thg soil, with notice of the latter through some other channel than the public register. By Billington v. Welsh, it was settled that possession, to have that effect, must be several,' distinct, and so notorious as to strike the eye. It was not said that it must be continuous and unceasing; nor could the enjoyment be so, in the case of an easement, for it could not be kept so uninterruptedly in use as to leave the notoriety of it without break or interval; and a rule so strict as to require it, would extinguish the’ title to it at the coming in of the first purchaser. The law, however, is not so unreasonable as not to allow of those ordinary intermissions that are incident to the business to which the easement is subservient. Moreover, it is sufficient, where it exists, that there is something in the aspect of the premises lo put a purchaser on his guard. In Alexander v. Kerr, *2 Rawle 83, a question was made whether the purchaser of a mill was bound to take notice that the darn sometimes flooded ihe land of an adjoining proprietor; and, as the probability of the fact was apparent to the eye, it was held that there was enough to lead hinrto an inquiry. In like manner, was there not enough to lead jhe defendant’s lessor and his-predecessor to the fact that the land líelow was occasionally used for the purposes of this ferry, when it is considered that the upper landing, with its road, was but a few yards above the plaintiff’s boundary? that it was obvious a boat could not reach it at high water? and that to meet such a contingency, there was a visible landina-place, with a road to i.t, at the locus in quo,* the object of which must have been suggested by the aspect of the, premises?

It is argued, however, that the certificate of the commissioners in ISOS was the origin of a new grant which, supplanting the Connecticut title, purged the land of its incumbrances; and that it consequently extinguished any grant of the easement in question, which existed at the time. The act of 1799 and its supplements, however, were passed, not to extinguish, but to confirm the Connecticut title within a particular district. The primary one was treated as' confirmatory in Avery v. Dailey, 4 Serg. & Rawle 281; and that it was not styled so in the act itself, is probably because an obnoxious act bearing that, name had just been repealed. Its provi

sions, however, were confirmatory. Its declared object was to ascertain the settler’s rights for confirmation by a patent, and it would have been strange had not their accessories also been confirmed. It is certainly true, that a conveyance on the basis of a Connecticut right, was declared to be illegal by the act of 1802, and it must be admitted that scruples were felt by some of us on that head in Barney v. Sutton, which was consequently ruled on another point; but from the operation of that act were expressly excluded all the lands in the seventeen townships which were, or should be, submitted to the commissioners under the act of 1799. Even had the assertion of such a title been previously unlawful on grounds of general policy, the proviso would have implicitly legitimated it in the excepted instances. But it was prospectively legitimated by the act of 1799 itself, which it was not the purpose of the act of 1802, in the least, to repeal or disturb; for the rights of the settlers could not be ascertained without receiving and acting on their conveyances as they might stand at the time. The evidences of their title were to be delivered up and deposited in the land office, but not cancelled; for a certified copy of one of them was allowed to be competent evidence in Carkhuff v. Anderson—a case which is decisive of the present; for it is impossible to understand why an incumbrance by grant shall be void, while an incumbrance by judgment shall be valid.

It is scarce, necessary to add that the admissions by a grantor of the land; while he owned it, were competent evidence against the defendant claiming under him; or that the widow, from whom the plaintiff derives title, was a disinterested witness. She had conveyed her whole estate in the premises without warranty or covenant; and though there was a parol agreement by the plaintiff to pay her a yearly stipend, its continuance was not dependent on the enjoyment of the easement. The bills of exceptions are therefore groundless.

Judgment affirmed.