*42The opinion of the Court was delivered by
Woodward, J.The legislative idea of a river island may be correctly inferred from several enactments on the subject. Thus, by the 4th and 5th sections of the Act of 6th March, 1793, relating to islands in the Susquehanna and its branches, the board of property were to ascertain the value of the island applied for, whether improved or not, having regard to the soil, wood, and distance from the main land, and no warrant was to issue unless the island were susceptible of cultivation, and all sand-bars, not surveyed before 4th July, 1776, were to remain common highways for ever.
By the Act of 2d April, 1822, no application was to be received into the land office for an island in the Susquehanna, unless the same be at least four feet high above common low water, and containing at least forty perches of ground, exclusive of rocks, and be susceptible of cultivation in grain or esculent roots in common seasons, by their growing and becoming maturely ripe. And again, any sand or gravel bars, or accumulations of mud in the Susquehanna, which shall not come under the description of an island as above, shall be considered as part of the public highway.
By the Act of 27th January, 1806, relating to islands in the Delaware, Ohio, and Allegheny rivers, the appraisers appointed by the board of property are required, in valuing the land in such islands, to have regard to the soil, wood, fisheries, and other advantages thereof, and a pre-emption is secured to actual settlers, if any.
From these provisions, a legal definition of an island might easily be constructed, and it is apparent the definition would have to include a soil, and 'distinguish between an island and a sand or gravel bar.
The warrant issued by the board of property to the appraisers in this case, enjoined them to estimate and value all the land in the island applied for; to ascertain the number of acres therein, and whether the same be susceptible of cultivation in grain or esculent roots in common seasons, and having regard to “ soil, wood, fisheries,” &c. — a form adopted at the land office for executing the Act of 1806, and which is a further indication that the Commonwealth means by an island, not a denuded gravel beach or sand-bar, but land having a soil capable of sustaining vegetation.
Was there any such island in the Allegheny known as Smoky or Killbuck island at the date of Reed’s application on the 3d of September, 1849 ? It was admitted, and proved on the trial, that, at the date of the passage of the Act of 1806, there was such an island; that it contained from thirty to forty acres, and was inhabited and cultivated as a farm, but that, in the flood of 1832, the greater part of the soil and surface of said island was swept off, and the residue was completely carried away in 1839 or ’40, leav*43ing, in tbe place of wbat was once a productive island soil, a gravel bottom or sand-bar, incapable of tillage, exposed to view and surrounded by water at an ordinary stage, but wholly covered or submerged when the water is from six and a half to seven feet deep in the channel of said river.
If the statutory definition be applied to these facts, it is apparent there was no island there when this title originated. The insular character of what had been known as Smoky or Killbuck island, was swept away with the soil. The title of the Commonwealth to what remained was not gone, but was no longer grant-able under the Act of Assembly for selling islands. The foundation of the island belongs to the Commonwealth still, but she holds it, as she does the bed of the river and all sand-bars, in trust for all her citizens as a public highway. It is said the state may restore the island. Doubtless she has the right, if such a thing were practicable, to reconstruct an island on that foundation; and possibly it might then be grantable under the Act of 1806; but in 1849 she had no island there, according to her own recorded definitions of islands, and of course her grantee took no title. And that is the time at which the test is to be applied, and not the date of the law, as argued. The Act of 1806 was not a grant of the state’s title, but only a mode prescribed in which titles might thereafter be granted. It would apply, no doubt, to islands formed by natural causes after its passage; and it is equally certain that • it would cease to be applicable to islands existing at its date, but disappearing before application filed. The plaintiffs’ title relates not back to the date of the law, but commenced with his application, and at that time Smoky or Killbuck Island was among the things beyond the flood.
The decision of the board of property to grant the warrant of survey after caveat filed, concludes nothing. The Act of 1792, prescribing the effect of their decisions upon patents for land, has no application to a proceeding of this sort. And, besides, the report of the appraisers, on which the board acted, left open for judicial decision the very questions which have been adjudicated in this case. The presumption is a fair one that the board intended to leave them as their appraisers left them. Whether this be so or not, however, the jurisdiction is a special one, and if the subject-matter, to which the Act of 1806 relates, were gone — had ceased to be — the board of property had no jurisdiction, no more than they would have over any other subject not intrusted to their discretion.
On the whole, our opinion is, that upon the facts admitted and established to the satisfaction of the Court below the plaintiffs exhibited no title, and that judgment should have been entered for the defendants on the reserved question.
The judgment is reversed and a venire de novo awarded.