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May 3, 1985

WILLIAM JOHN LIVINGSTON, a minor, by his parents and natural guardians, WILLIAM E. LIVINGSTON and DOROTHY LIVINGSTON, and WILLIAM E. LIVINGSTON and DOROTHY LIVINGSTON in their own right

The opinion of the court was delivered by: TROUTMAN



 Between 1924 and 1926 Pennsylvania Power & Light Company (PP&L) constructed Lake Wallenpaupack on the border of Wayne and Pike Counties in the Commonwealth of Pennsylvania. The lake was created by damming the Wallenpaupack Creek, thereby flooding land which PP&L had acquired specifically for the purpose of generating hydroelectric power. However, its attraction as a resort area, which is actively promoted by PP&L, has largely supplanted that function in recent years. PP&L's Federal Power Commission (FPC) license *fn1" specified various conditions in connection with the creation and maintenance of the Wallenpaupack Project Area, including a requirement that some of the land be dedicated to the public. Accordingly, PP&L maintains four recreational areas on land it has retained near the lake. PP&L also kept and maintained a "ribbon" of land around the lake, thus requiring abutting landowners to seek easements across the "ribbon" to gain access to the lake itself, PP&L grants easements in exchange for one-time $15.00 fees, PP&L also grants licenses for placing docks on the lake.

 In its motion for summary judgment, the defendant has raised two legal theories, either of which, it contends, renders it immune from liability. If correct, defendant is entitled to summary judgment notwithstanding disputed factual issues in connection with the details of the accident.

 PP&L first contends that Pennsylvania's Recreation Use of Land and Water Act, 68 Pa. Cons. Stat. Ann. § 477-1 -- 477-8 applies. Under that Act, landowners who make their premises available to the public free of charge for recreational purposes are under no duty to keep the premises safe or to warn of dangerous conditions, uses, structures of activities thereon. Similarly, the owner extends no assurance that the premises are safe, assumes no duty of care toward recreational users, and incurs no liability for negligent injury to such users. This statutory immunity does not apply if the owner levies a charge upon persons who enter the land for recreational purposes. Similarly, the owner is not relieved of liability for willful or malicious failure to warn or guard against a dangerous condition, use, structure or activity.

 Second, PP&L contends that it cannot be held liable for an accident which occurred in the waters of the lake or the lake bed because ownership thereof is vested in the Commonwealth by virtue of the navigability of Lake Wallenpaupack.

 To establish that Lake Wallenpaupack is navigable in fact, PP&L describes its length, depth, acreage, the substantial number of annual visitors it attracts, and the commercial activities it supports. Relying upon the case of Conneaut Lake Ice Company v. Quigley, 225 Pa. 605 (1909), defendant contends that its description of the lake supports the conclusion that the lake is navigable in fact and thus owned by the Commonwealth. In addition, PP&L buttresses its argument by noting that Wallenpaupack Creek had been legislatively declared a public highway in 1808. Presumably, by including this fact, PP&L is contending that the dammed portion of the Creek, now Lake Wallenpaupack, is ipso facto a public highway.

 Although not cited by either party, the Court's research has revealed that the Conneaut case was explained fifty years later in Lakeside Park Co. v. Forsmark, 396 Pa. 389, 153 A.2d 486 (1959) which appears more applicable than Conneaut. The court in Lakeside first noted that the ". . . argument. . . that the lake is susceptible of navigation in fact and hence that it is navigable in law . . . is good law for rivers but must be accepted with caution for lakes", at 391. The court then elaborated on the concept of navigability:

Navigation and navigability are portentous words. They mean more than the flotation of buoyant vessels in water: if it were otherwise, any tarn capable of floating a canoe for which a charge could be made would make the water navigable. They mean more than some commercial use to which collected water is put: if this were not so, every spring-fed pool capable of being bottled and sold for drinking water would be navigable. No single factor can control. Lakeside at 394.

 The Court went on to establish a frame of reference for a decision as to whether a particular body of water should be found navigable:

 The court concluded that the body of water before it, a 150-acre lake, ". . . falls far short of qualifying as a highway for commerce or a link of a chain within the reasonable intendment of that phrase. People came to stay and enjoy the lake as an end in itself, not as an incident in a journey along a trade route". Id. at 392.

 Similarly, we conclude that if the Pennsylvania courts were to pass upon the navigability of Lake Wallenpaupack, they would follow Lakeside and find that it too is a point of interest, more suited to private than public use. The only reason for making a determination as to navigability in this case is to determine ownership of the lake waters and lake bed. Therefore, we hold that PP&L, not the Commonwealth, is the owner of Lake ...

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