Court of Common Pleas of Montgomery County.

REIFF 7. COMMONWEALTH.

Certiorari.

A separate penalty may be imposed upon a merchant violating the Sunday laws for each separate sale made to different persons, although upon the same day.

The opinion of the court was delivered February 23, 1885, by BOYER, P. J.-Frank D. Reiff was convicted before the justice of the peace of three separate offenses on the same day against the act of April 22, 1794, prohibiting "any worldly employment or business whatsoever on the Lord's Day, commonly called Sunday," and providing that "every such person so offending shall for every such offense forfeit and pay four dollars." The alleged violations of the law consisted of the selling by Reiff, at his store, of three different articles of merchandise, separately, to three different individuals, at different times on the same Sunday. The contention is, that these sales having been made on the same day, constituted but one continuous violation of the law, for which but a single penalty can lawfully be exacted; and that, therefore, the imposition of a fine for each of the three sales was contrary to the true meaning of the act. If this were so, the fine of four dollars might operate simply as a license fee to keep open a store on the Sabbath and take advantage of more law-abiding merchants, who, in obedience to law, abstained from business on that day. This certainly could not have been the intention of the act. But penal laws, it is said, must be strictly construed; and so they must. But they must likewise be reasonably construed according to their letter. The act in question reads that "if any person shall do or perform any worldly employment or business whatsover on the Lord's Day, commonly called Sunday, works of necessity and charity only excepted,

* every such person so offending shall for every such offense forfeit and pay four dollars." It is surely in accordance with a strict construction of the language of the act, to hold each separate sale of merchandise to different persons such offense;

and that for every repetition thereof on the same day the penalty is incurred. If our act of 1794 were worded as was the statute of 29 Charles II., which provided against the exercise by any tradesman, artificer, or laborer of his ordinary "business or calling" upon Sunday, it would justify a construction similar to that applied to that statute in the English cases cited. But the difference is very clearly shown by Judge Pearson in the case of Duncan v. The Commonwealth, reported in 2 Pearson, 213. There are cases, doubtless, where all the acts of one day might constitute a single punishable offense, as in the examples cited by Judge Pearson, of a wagoner driving on the road all day, or the farmer hauling in his grain, because but one piece of work. But the storekeeper selling one article to one man, and other articles to another man, each time offends the act in a different transaction. For similar constructions in analogous cases see Com. v. Borden, 11 P. F. S. 272; Com. v. Cooke, 14 Wright, 201. The judgment of the justice is affirmed.

Court of Common Pleas of Luzerne County.

WINCHESTER et al. v. PENNSYLVANIA COAL COMPANY et al.

Islands in the Susquehanna river.

1. What is an island in the contemplation of the Pennsylvania statutes, and the method of acquiring title thereto.

2. River warrants laid, by authority of law, upon the bed of the river, should stop at low water mark around the shore of an island, instead of running through or over it.

3. The doctrine of accretion does not apply to a case like this. The question here is, what was the condition, location, and size of this island at the time the plaintiffs' title attached? It is that condition, and not the island as affected by accretions since, which fixes the bed of the river for the purposes of this case.

Ejectment for Wintermoot Island.

Hon. Stanley Woodward, A. L. J., charged the the jury in above entitled cause February 18, 1885, as follows:

Gentlemen of the Jury:

This is an action of ejectment, brought by the widow and heirs of S. S. Winchester, deceased, against the Pennsylvania Coal

Company and others, to recover certain premises described in the writ as an island, known as Wintermoot Island, lying in the Susquehanna river just below Pittston. To establish their title to this island, the plaintiffs have shown, first, a warrant issued October 4, 1870, authorizing a survey of this island to S. S. Winchester and David Culver, who had applied for it in the usual manner. This survey was returned October 14, 1870, and showed thirty-seven acres of land as a result. Upon this return of survey is endorsed an assignment by David Culver to S. S. Winchester of all his (Culver's) interest. On October 15, 1870, in pursuance of the warrant, survey, and assignment, the commonwealth of Pennsylvania issued to Stephen S. Winchester her patent for this island, said to contain thirty-seven acres and fiftyeight and nine-tenths perches of land. Previously to the issuing of the warrant, commissioners had been appointed, according to the provisions of our statute, and had reported that there was an island four feet in height at the place named, that it contained at least forty perches susceptible of cultivation, etc., according to the requirements of the statute, to which I will not further call your attention at this time. Next, the plaintiffs call Mr. Sturdevant, a surveyor, who identifies this Wintermoot Island as the same land described in the writ of ejectment in the case before us. Plaintiffs then rested. In the absence of anything else shown in the case, plaintiffs would be entitled under this showing to recover the land claimed by them.

A defense, however, is made against the claim of the plaintiffs by the Pennsylvania Coal Company. We remark at the outset, that the defense applied only to the coal and other minerals lying under the alleged island, and not to the surface of it; in other words, there is no denial that the plaintiffs have shown title to the surface of this island, if, as matter of fact, such an island exists. The defendants, to establish their title to the coal and minerals, show first, under date of April 20, 1848, a warrant issued in favor of one William Sayford, for one hundred acres of the bed of the Susquehanna river, lying between low water marks at a certain part of the river, which would include the land in controversy. On July 3, 1848, this survey was returned by Henry Colt, the county surveyor. On March 21, 1849, Sayford.

assigns his title and interest to one Thomas J. Rehrer, and on March 24, 1849, in pursuance of the warrant, return of survey, and assignment, to which I have called your attention, the commonwealth of Pennsylvania issued to Thomas J. Rehrer her patent for the coal and minerals described in the warrant and return of survey. Another warrant was granted about the same time to one Asa Dimmick, to which a return of survey was had, and of which, also, an assignment was made to Thomas J. Rehrer, as in the former case, and on March 26, 1849, the commonwealth of Pennsylvania issued her patent to Thomas J. Rehrer for that warrant also, thus vesting in Rehrer the title to the coal and minerals underlying the Susquehanna river as described in the two warrants referred to. Without going over in detail subsequent conveyances it will suffice to say, that they result in vesting in the Pennsylvania Coal Company, the present defendants, whatever title Thomas J. Rehrer took by virtue of his patents from the commonwealth, to which I have called your attention.

Now, the question in this case is this: Did the title to the coal and minerals under the premises described in the writ of ejectment pass, by virtue of the patents issued to him by the commonwealth, to Thomas J. Rehrer in 1849? The survey and description include these premises. About that there is no doubt. But did the title pass? To answer this question it becomes necessary, under our view of the case, to ascertain whether Wintermoot Island existed in 1849.

What is an island, in the elementary sense, we have all learned at school; it is not necessary to dwell on that. What is an island, as defined by the Pennsylvania statutes, is also to be considered in the present case. The statutes which provide the method of acquiring islands in the Susquehanna river describe what is contemplated by the use of the word "island" in a legal sense. In this connection it will be proper to call your attention to another point; that, originally, the river Susquehanna belonged to William Penn. It was never granted away by him. The title to it vested in him by a royal charter, or grant, from the king of England, but on May 9, 1771, an act was passed, which was assented to by William Penn, which declared the Susquehanna river a public highway. Thus, and then, this river become the

property of the commonwealth. In England, at common law, a river in which the tide does not ebb and flow, and which is not navigable, belongs, not to the government, but to the owners of the land on either side; and, therefore, an island in such a stream would belong to the adjoining shore owner nearest to it. But the Susquehanna river is a public highway, and a navigable river, and therefore belongs, not to the adjoining owners, but to the commonwealth or her grantees.

I will now state to you, as I understand it, the description of an island under our statute-such an island as the commonwealth will grant to her citizens by survey, warrant, and patent. The act of assembly of 1822, following that of 1793, provides that any sand or gravel bar, or accumulations of mud in the river Susquehanna which shall not come under the discription of an island as contained in the preceding section, shall be considered as part of the public highway. The preceding section referred to is as follows: "No application shall be received in the Land Office for any island in the river Susquehanna, unless the same be at least four feet high above common low water mark, containing at least forty perches of ground, exclusive of rocks, be susceptible of cultivation in grain or esculent roots in common seasons by their growing and becoming maturely ripe." And under these statutes it has been held in Pennsylvania, in a decided case, that territory, to be liable to grant as an island, must have a soil capable of sustaining vegetation. I refer to the case of Allegheny City v. Reap, 24th Penn. State, 39.

This brings us, gentlemen, under our view of the case, to the question of fact involved in this controversy; a question, of course, for the jury to decide from the evidence which they have heard. Was there such an island as the statute contemplates, at the place named, in 1848? If you find in the affirmative, that there was, we say to you that the survey of the river right, or warrant, being confined to the bed of the river, would not include land constituting such an island. In other words, a survey of the bed of the river such as defendants claim under, would stop at this island and follow its courses and distances around and not go over or through it. This brings us naturally to the other