Appeal, No. 232, March T., 1958, from decree of Court of Common Pleas of Mercer County, Sept. T., 1955, No. 2, in equity, in case of Lakeside Park Co. v. LeRoy F. Forsmark. Decree reversed. Equity. Before RODGERS, P.J. Adjudication filed finding for defendant; plaintiff's exceptions to adjudication dismissed and final decree entered. Plaintiff appealed.
E. V. Buckley, with him L. R. Rickard, for appellant.
Martin E. Cusick, with him Donald R. McKay, and Wiesen, Cusick, Madden, Joyce, Acker and McKay, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BOK
The single question is whether or not Sandy Lake, in Mercer County, is navigable. The court below held that it was. We think this was error.
What depends is that defendant wants to make commercial use of his shore-front property, which he may do if the lake is navigable and public, but which he may not do if it is non-navigable and private.
The lake is 27th in size among the State's 254. It is 5070 feet long and 1930 feet at its widest point. It has
a prevailing depth of 25 feet and a maximum of 40 to 50 feet, and has no well defined outlet. It is fed by springs and covers 149.7 acres. It is described in the Commonwealth's Water Resources Inventory Report, published in 1917, which contains these items, among others: "Utilization - ice harvesting, summer resort, and water supply for a magnesia manufacturing plant. Navigation - motor boats and rowboats. Ownership - private and corporate: not limited to shore line."
Such commercial glory as the lake had occurred between 1890 and 1920, but mainly around the turn of the century. Railhead on both north and south sides brought many excursionists, and a steamer and barge made irregular trips across the lake. There was a dock, a pier, a ticket office, a hotel and some organized amusement. People came to swim, fish, boat, and drink. Finally, the crowd so increased that the steamer was unable to handle them and the railroad ran its tracks around the lake, which solved the problem.
The present use of the lake by the plaintiff, which owns most of the bed, is the operation of summer cottages and facilities for bathing, fishing, and boating on its own property. Sporadic fishing in boats hired from others is objected to.
Defendant's whole case for navigability depends on these past uses, now forty to sixty-five years ago. His argument is that the lake is susceptible of navigation in fact and hence that it is navigable in law. This is good ...