Attorney General ex rel. Muskegon Booming Co. v. Evart Booming Co.

| Mich. | Oct 10, 1876

Cooley, Ch. J:

The pleading of the attorney general in this case is somewhat anomalous, and we deem it important to a proper presentation of our views that a very full statement of its substance should be given.

It begins by saying that, “Informing showeth unto your honorable court, Andrew J. Smith, attorney general of the state of Michigan, by and upon the relation of the Muskegon Booming Company,” that it is the business of said company to run, raft and boom logs in and upon the Muskegon river, which is a stream navigable for running, rafting, driving and floating logs, lumber and timber, and for a part of the distance navigable for steamboats, in which business it has been engaged for eight years or more, and is engaged the present season, that is to say, the spring and summer of 1875; that during the spring of the present season said company took possession of the logs and drive on said river, by and with the consent and at the request of the owners of logs therein and thereon, and by and with such consent has been running such logs; that there is a large quantity of logs so taken possession of and driven, to-wit: about two hundred million feet, and that by taking possession thereof they have entered into contracts with the owners to run, drive and raft the same to points below on the river where they are to be manufactured;

That by law said company has a lien on the logs for the payment for its services in so running, driving and rafting, and also in booming the same, and that the owners of the logs cut and placed them in the river for the purpose of running and driving the same, or of having the said company run, drive and raft the same to the city of Muskegon for manufacture into timber and lumber.

The information then proceeds to aver that “your orator” further informing shows that at a point in said Muskegon river, about two miles above the village of Evart, the said Evart Booming Company have made, erected and placed in said river booms, sticks, piers and piles; that at a point in said river about one mile below said village of Evart the said Evart Booming Company have made, erected and placed in said river dams and large numbers of sticks, piers and piles; that the channel of said river at the point where said booms are so made and erected is about the width of three hundred feet; that the said Evart Booming Company have filled up the channel of said river with logs, booms, piers, piles and timber from the aforesaid point in said river, about two miles above said village of Bvart, where the lower end of said boom is, extending up the channel of said river about the distance of half a mile, leaving open for the said distance of the channel of said river a place or channel only about eighteen or twenty feet in width; that- for the distance of about half a mile aforesaid along the channel of said river the said Bvart Booming Company maintain their booms on each side of the center of said river; that they have standing in said booms large quantities of logs and timber nearly or quite covering the surface of the water of said river; that of the surface left uncovered there is a very narrow space, only about eighteen or twenty feet in width;that all the rest of the surface and channel of said river, except the said eighteen or twenty feet in width at or near the center of said stream, and between the booms of the paid Bvart Booming Company, is filled with logs and timber and entirely filled and obstructed; that at the head of the boom said Evart Booming Company have, during a great portion of the time, booms and boom sticks extended entirely across the channel of said river, filling and obstructing the said channel, hereinbefore mentioned as being eighteen or twenty feet wide, as well as the rest of the channel of said river, and closing it to navigation for logs, lumber, timber and all floatables;

That “your orator” shows that the operations aforesaid of the said Evart Booming Company, carried on and conducted in the manner in which they are carrying them on and conducting them, obstruct, hinder, impede' and delay the navigation of said Muskegon river at the point where the said river passes through the village of Evart, and that the said Muskegon Booming Company, in running, rafting and driving logs aforesaid, are greatly hindered and delayed in the navigation of said river; that they are put to great trouble and large expense in running their logs by and through said village of Bvart, and “your orator” alleges that the said obstructions of navigation constitute a nuisance and a purpresture;

That about the 11th day of June, 1875, the said Muskegon Booming Company had in the drive in said river, at or near the said village of Evart, above the booms of said Evart Booming Company, about seventy-five million feet of saw-logs; that the said company was then engaged in driving said logs in and upon said river to the city of Muskegon; that the said Evart Booming Company stopped and detained the said logs by and above said booms and dams; that by their said operations in said river they caused the water in said river to set back and above the natural channel thereof, and to throw the said logs in charge of said Muskegon Booming Company back and upon the land above and beyond the natural channel of said Muskegon river; that they have held the said logs there, or large quantities of them, for a long period of time, to wit: for several days, and would not let them pass through said booms and dams, and that in consequence thereof the said logs were thrown back and out of the channel of said river, and the said Muskegon Booming Company was obliged and compelled to employ and keep at work large numbers of men to sack off and roll into said river and the waters thereof, the said logs and timbers so as aforesaid floated and set back upon the land by the operations of the said Evart Booming Company; and by means thereof the said Muskegon Booming Company sustained great and irreparable damage and injury.

The information then proceeds to set out with more particularity the injuries which the relator suffers from the wrongful acts of the respondent, and which it will suffer if those wrongful acts are persisted in, and to negative the pretenses under which the action of the respondent is attempted to be justified.

It avers that the Evart Booming Company have not the necessary and usual facilities at their booms, or at the head of their dams, for assorting the logs that float down the said river, and that they are and have been negligent and unskillful in erecting and maintaining, and in acquiring and owning the necessary and usual facilities for booming and assorting logs in and upon said river at the village of Evart aforesaid; and the other booms and facilities for booming and assorting logs on said river are entirely inadequate for the wants and necessities of booming operations at said point, and they fall greatly short of the facilities and means that might be had in and upon said river by using reasonable diligence, skill and care in erecting booms and assorting places on said river.

“And further informing, your orator shows,” that the said Evart Booming Company only works at the assorting places which they have at their booms on said river for ten or eleven hours during the twenty-four hours of the day, and that then they do not employ the necessary number of men to work with such expedition as the business of said river and the necessity of the occasion require; that the said stoppage, delay and detention by the said Evart Booming Company is entirely unreasonable and unnecessary, and without authority of law; that it occasions constantly recurring grievances to said Muskegon Booming Company and other persons navigating, and desiring to navigate said river, and that it is a public nuisance.

The pleading then avers' requests to the Evart Booming Company to desist from its unlawful acts, which it refuses to heed, and it prays that said last mentioned company “may be restrained and enjoined from in any way or manner obstructing the navigation of the Muskegon river at or near the village of Evart, and from hindering, delaying, stopping or interfering with the floating, running, rafting or driving of logs in the said Muskegon river, and from detaining at Evart, or at any other point in said river, the logs being run, rafted, floated or driven by the said Muskegon Booming Company, and from in any way hindering by their booms or otherwise the free navigation of said river by logs, timber and lumber; and that the said Evart Booming Company may come to a fair accounting with the said Muskegon Booming Company respecting the damages already sustained and to be sustained by their acts already committed by the Muskegon Booming Company by reason of the said Evart Booming Company stopping, hindering, delaying, or interfering with the navigation of said Muskegon river for running, rafting, driving or floating logs therein, and interfering with, stopping and delaying the logs floated and being-floated, rafted and run in said Muskegon river by the Muskegon Booming Company, or that the said complainant and the Muskegon Booming Company may have such other relief or such further relief in the premises as may be agreeable to equity and good conscience.”

We have said that this pleading is anomalous. It is certainly not artistic in form, and reads as if it might originally have been prepared as a bill on behalf of the Muskegon Booming Company, and afterwards, by slight alterations, converted into an information. The words “your orator” are so employed that it is not clear at all times whether they refer to the informant or to the relator, and while logically we must refer them to the informant, because he is the person addressing the court, the sense would seem to indicate that the relator was the party intended. But all matters of mere form may be overlooked if the substance of a legal complaint appears; and it is to that question that we shall direct our attention.

An information at the instance of the attorney general must necessarily be based upon a public grievance. If one is shown here, the information may be sustained; if not, it must, as an information, be dismissed. • It is insisted that a public grievance is shown; that the acts which are complained of constitute a public nuisance and a purpresture, and that it has become the duty of the attorney general, acting on behalf of the state at large, to take proceedings for restraining persistence in this injurious conduct.

A purpresture may be defined as an enclosure by a private party of a part of that which belongs to and ought to be open and free to the enjoyment of the public at large. The appropriation by an individual of a part of a public common may therefore be a purpresturo, and as it would constitute an invasion of a public right, it would be proper that proceedings for its abatement should be taken on behalf of the state. An unauthorized enclosure of a part of a highway may also be a purprosture and a public wrong, whether the highway be one by land or by water.

It is, however, to bo observed of a purprestnre that it is not necessarily a public nuisance. A public nuisance must be something which subjects the public to some degree of inconvenience or anuoyance; but a purpresture may exist without putting the public to any inconvenience whatever. Such might bo the case where the part of a common highway is enclosed, provided the appropriation is confined to a part never made use of for purposes to which the highway is devoted. A highway usually includes within its limits more than is ever made use of for public purposes; but as it is set apart for public use provided1 there shall be occasion, the appropriation by an individual is unlawful, though it occasion no present inconvenience to any one, and it may be abated because the result of its being persisted in might be to obscure and possibly in the end to defeat the public right altogether, and thus preclude enjoyment by the public in case the use of that which was enclosed should ever be needed for highway purposes.

On the other hand, the appropriation of a part of that which belongs to the public may sometimes not be unlawful, not only because it may be made under circumstances raising an implication of. assent on the part of the public authorities,, but because it may be essential to the proper enjoyment of the public right. Such a case may be found in the extension of a wharf into navigable waters. Wharves are essential; and while the state may limit their construction to the line of navigability, this is seldom done except under very peculiar circumstances.

We shall assume in this case that the information makes out a plain case of appropriation by the respondents of a part of the bed of the Muskegon river to their own purposes. The questions then are, first, whether the appropriation is of something which is common to the public; and if so, then, second, whether it is made in a manner or under circumstances which justify or excuse it. In considering these questions it is important that we bear in mind the sort of navigable water we are dealing with. Navigable waters at the common law are those where the tide ebbs and flows; under these the public have a proprietorship in the-soil itself; and in various ways the sovereign authority may make use of this ownership for the benefit and protection of navigable rights as well as for other purposes. The Muskegon river, it need hardly be said, is not of this character, and the public have no rights whatever in the soil under it. Neither is it a navigable stream, at least at the point where the alleged purpresture exists, in the more popular sense of that term, for it is only a small stream whose value to the public consists in the use which can be made of it for the purpose of floating logs and lumber. The right of floatage is unquestionably a right which the state should guard and protect; but it is a serious mistake to assume that the private appropriation of a part of. the bed of the river would necessarily be either a purpresture or a nuisance. The-property taken in such a case is not public but private-property, and the owner of the bank, who also presumably owns to the center of the stream, may maintain trespass or ejectment against the taker. If the owner make no complaint, the public can have neither right nor occasion for any, provided the navigable rights are not abridged. If they are, it is not very manifest how this; can be a purpresture-. The difference between the highway by land, with its definite limits to which the public right extends, whether the-whole is used or not, and the highway for floatage in our small streams, where the public rights have no definite limitations of space except as practicability for use and the-occasion for use may give variable limits* as the seasons and tbe needs of business and traffic may change, is so plain that the difference between an -appropriation in the two cases needs only to be mentioned. It requires neither argument nor illustration. The one is a public grievance of some sort; but the other is no public grievance of any sort, unless the public use is unreasonably abridged or inconvenienced.

But if the appropriation of a part of such a stream were presumptively a public injury, the public must be deemed to have waived its right to complain, so far as the appropriation was not unreasonable, when the law permitting the organization of booming companies, and regulating their operations, was enacted. This is so because some appropriation is essential to their operations. Nothing can be a nuisance which the sovereign authority allows, especially when the allowance is on public grounds, and made to facilitate the use of that which is common to all. The question of lawfulness in the action of a booming company in enclosing part of the stream for its own purposes, whether it is done by permanent structures or otherwise, must therefore necessarily be a question depending on the particular facts; it is a question of nuisance or no nuisance; in other words, it is a question whether the general public desiring to avail themselves of the navigable rights are or are not more inconvenienced than accommodated thereby. If they are not, the enclosure is not unlawful; if they are, it may be.

The information certainly makes out a case of inconvenience and injury to the relator, but it does not follow that a public nuisance is shown. It is perhaps impossible that two booming companies should make the same part of a stream the field for their respective operations without subjecting each .other to more or less annoyance, impeding somewhat each other’s operations and abridging each other’s receipts. But like common carriers on the same route,— which in a certain sense they are, — they must put up with these inconveniences so far as they are not reasonably to be avoided; they constitute no nuisance, and neither party conducting its business in a proper and prudent manner can be subject to either public or private complaint. Any injury under such management must be considered incidental to and inseparable from the exercise of a general right.

But if the respondent fails to keep within the limits of a just exercise of its rights, the case may still be one of purely individual injury. If one stops another in the street, but permits all others to pass along, there is private wrong, but no public wrong. The fact of its being committed ■ in a public place does not make it public. We cannot read the information before us without being impressed that the complaint is of a private injury to this relator; of carelessness or recklessness in the exercise of a public and general right to its prejudice. Others are referred to as being inconvenienced, but the inconvenience to them appears to have reference to their transactions, actual, contemplated, or possible, with the relator, and to constitute a grievance on its behalf rather than on theirs. They may or may not care to complain, and until they do the attorney general -may well leave them to deal with the case as they may desire or as they may be advised. As the case stands on the information the state at largo can have no more interest in any individual grievance of this nature than in many others that are from day to day being called to our attention, and in which confessedly there is a public interest in no legal sense whatsoever.

It is insisted, however, on behalf of the relator that the pleading is both an information and a bill; and that though we conclude it should be dismissed as an information, it may still be sustained in the other character. But the fact is not as is claimed. There is no bill here; ' nothing but an information. It is undoubtedly informal, but wo cannot treat that as both an information and a bill which on its face purports to be an information only. There can be no bill of complaint without a complainant; and the fact that the attorney general, appearing as the solo party addressing the court, fails to make out a case on behalf of the public, cannot entitle him to bring the relator forward as orator at tlie bearing. When the information is dismissed there is nothing to support a decree in favor of any one. A reference to cases like Attorney General v. Mayor of Bristol, 3 Madd. Ch., 164; Attorney General v. Vivian, 1 Russ., 226; Attorney General v. Heelis, 2 Sim. & Stu., 67; and Attorney General v. Master, etc., of Catherine Hall, Jac., 381, in which the pleading was treated as both an information and a bill, will make plain tbe difference between those cases and the present in that regard.

We agree with the circuit judge that no case was made for the intervention of the public authorities. The information was therefore properly dismissed. The decree will be affirmed, with costs against the relator.

The other Justices concurred.