The opinion of the court was delivered by: MARIS
This is an action at law by the Gulf Refining Company (hereinafter referred to as the Company), against the City of Philadelphia (hereinafter referred to as the City), to recover the sum of $51,443.42, claimed to have been paid by the plaintiff to the defendant under a mistake of fact. A jury trial was waived by the parties.
The Pennsylvania Act of July 22, 1913, P.L. 911, 53 P.S.Pa. § 4351, provides as follows: "That the directors of the Department of Wharves, Docks and Ferries, in any city of the first class, shall have authority, after the appropriation by councils, of said city, or by the Commonwealth of Pennsylvania, of the money required therefor, to erect and construct retaining structures adjoining the banks of navigable streams located within its corporate limits, for the purpose of protecting the channel of such streams; and when any such retaining structure shall have been erected or constructed the cost thereof per foot shall be filed in the office of said director, and no riparian owner, lessee or licensee, shall use any such retaining structure for the purpose of constructing, extending, altering, improving or repairing, any wharf, or other building in the nature of a wharf, or other harbor structure, or for other wharf purposes, without having previously paid to the said director of the city in which such retaining structure is erected or constructed the cost of erecting so much of said retaining structure as is so used; and any such person who shall use any such retaining structure as aforesaid, before the cost thereof has been paid to the said director as aforesaid, shall pay to the said city a penalty of twenty-five dollars per day for every day on which such retaining structure shall be so used, to be collected as debts of a similar nature are now collected. All money paid to the director under the provisions of this act shall be paid by him into the city treasury, to be used by the said city, only for the purpose of developing, extending, and improving the wharves owned by the said city."
Philadelphia is a city of the first class, and pursuant to the provisions of this act it constructed timber bulkheads or retaining structures along the east bank of the Schuylkill River from the vicinity of Penrose Ferry Bridge to the vicinity of Haenns Wharf. These bulkheads were constructed between the years 1915 and 1918. Their purpose was to prevent the flat lands along the banks of the river from washing into the channel and also to permit the reclamation of these lands by the riparian owners. Subsequent to the construction of these bulkheads the low lands lying between them and the fast lands on the bank of the river were reclaimed by being filled in with dredged material.
From time to time over a period of years the Company acquired a number of tracts of land along the east bank of the Schuylkill River extending from a point below Penrose Ferry Bridge on the south to the vicinity of Haenns Wharf on the north. These tracts are shown and numbered upon a plan attached as Exhibit "A" to the statement of claim. The bulkheads in question are in front of and contiguous in whole or in part to the tracts numbered 6, 13, 14, 9, 10, 11 and 15.
The tract numbered 6 was acquired by the Company in April, 1924. On December 1, 1926, Birger F. Burman, an engineer of the Company, wrote to the Department of Wharves, Docks and Ferries of the City (hereinafter referred to as the Department), as follows:
"Dept. of Wharves, Docks & Ferries,
"Will you kindly furnish me with complete information and whatever data you have available covering the mud fence or bulk head which was constructed under your supervision some years ago at Penrose Ferry Bridge on the North side of the Schuylkill River running in a Westerly direction from the Bridge.
"Thanking you in advance for your courtesy in this matter, I am,
Up to this time there had been no communications between the officials of the City and the Company with regard to said bulkheads. On December 6, 1926, the Director of the Department replied to the Company as follows:
"Department of Wharves, Docks and Ferries
"Mr. Birger F. Burman, Engineer,
"Answering your request of December 1st, for complete information regarding the mud fence that was constructed under the supervision of this Department some years ago along the east side of the Schuylkill River north of Penrose Ferry Bridge:
"There is forwarded herewith a copy of the Rules and Regulations of the Department of Wharves, Docks and Ferries, which, on page 13, quotes the Act of Assembly authorizing the Director of the Department to erect and construct retaining structures adjoining the banks of navigable streams for the purpose of protecting the channel of such streams. You will note that the Act prohibits any riparian owner from using any such structures without having previously paid to the Director the cost of the erection of such structures.
"Before the Department can accurately determine the cost of the mud fence that was built in front of your property, it will be necessary to have the District Surveyor furnish the exact length of your property along a line 32 feet inside of the established bulkhead and pierhead lines.
Transmitted with this letter was a pamphlet which set forth the Pennsylvania Act of July 22, 1913, P.L. 911, in full text.
"Department of Wharves Docks and Ferries
"Mr. L. R. Jones, Superintendent,