49 Mich. 110 | Mich. | 1882
Complainant is owner of lots numbered 31 to 36 inclusive, on a subdivision of part of the Loranger farm, south of Fort street in the city of Detroit, being part of private claims 338 and 474. The subdivision was made by a plat duly executed July 24, 1863, by Bosalie Loranger,
This is an injunction bill to restrain the construction by the city of the wharf for whose construction a contract has been made. The Superior Court granted the relief prayed. It does not appear what use the city proposes to make of the wharf when constructed, and the complainant contests the right to construct it for any purpose whatever. His claim is that the slip is entirely upon his own land, and that the dedication terminated at the shore. If, therefore, the city has no authority to construct the wharf for any purpose, the decree from which the city has appealed' must, stand; but if the city may construct it for some purposes,
This is an important question, for it is one that arises in-many places, and considerable interests are likely to depend, upon it whenever the land affected by the supposed dedication is valuable for commercial purposes. Each party claims that the position contended for is eminently reasonable and just, and asks judgment on that basis. But each-party claims also that its contention is sustained by authority.
The river Detroit is a navigable river, in the American sense of that term. The site of the proposed wharf is covered by navigable water.. It is not claimed that the wharf, if constructed, will in any degree obstruct or embarrass navigation, and if a private individual were owner of the bank, his light to construct the wharf would be conceded. In examining the case on authority, however, we are subject to-some embarrassment in the application of cases decided arising from the different rules which prevail in different jurisdictions respecting the ownership of land under navigable waters, and also in the same jurisdictions, depending oru the fact that the water is or is not navigable, in the common-law sense, as distinguished from the American sense of that term. At the common law the title to all land on navigable-waters below high-water mark is in the sovereign; but navigable waters are only those where the tide ebbs and flows. This rule was so far modified, in its adoption in. some of the American colonies, as to extend the bank ownership to low-water mark, but in other respects it remains-the law of this country at the present time. At the common law the ownership of the banks of fresh-water streams, whether subject to public easements or not, extended to-the middle of the stream, and if a river was capable of ' being navigated, the riparian proprietors were at liberty to make any use of the soil under it which was not inconsistent with the public easement, subject of course to the restraining, regulating and controlling authority of the sovereign, power. They might, therefore, erect docks on ground below the line of either high or low water, provided no.
Other courts have not considered that the greater size of the American rivers was a circumstance that should vary the rule of private ownership • on navigable fresh-water streams, and they have held to and applied the common-law doctrine that the line of private ownership is the middle of the stream: Adams v. Pease 2 Conn. 481; Stuart v. Clark's Lessee 2 Swan 9 ; Gavit's Admrs. v. Chambers 3 Ohio 496; June v. Purcell 36 Ohio St. 396; Walker v. Board of Public Works 16 Ohio 540; O’Fallon v. Daggett 4 Mo. 343; Middleton v. Pritchard 4 Ill. 510; Canal Trustees v. Haven 10 Ill. 548; Houck v. Yates 82 Ill. 179 ; Washington Ice Co. v. Shortall 101 Ill. 46; Ingraham v. Wilkinson 4 Pick. 268; Commonwealth v. Chapin 5 Pick. 199 ; Knight v. Wilder 2 Cush. 199; Canal Commissioners v. Kempshall 26 Wend. 404; Browne v. Kennedy 5 H. & J. 195 ; Jones v. Pettibone 2 Wis. 308; Mariner v. Schulte 13 Wis. 692; Arnold v. Elmore 16 Wis. 509; Mc Cullough v. Wall 4 Rich. 68 ; Brown v. Chadbourne 31 Me. 9; Rundle v. Delaware, etc. Canal 1 Wall. Jr. 275 ; Hart v. Hill 1 Whart. 124; Morgan v. Reading 11 Miss. 366; Steam-Boat Magnolia v. Marshall 39 Miss. 110; Minto v. Delaney 7 Ore. 337; Moore v. Willamette etc. Co. 7 Ore. 355; Schurmeier v. Railroad Co. 10 Minn. 82. And these cases, so far as they declare the principle mentioned, have had the approval of this Court. Lorman v. Benson 8 Mich. 18; Ryan v. Brown 18 Mich. 196; Watson v. Peters 26 Mich. 517; Bay City Gas Light Co. v. Industrial Works
If, therefore, according to the law as it exists and is recognized in this State, the strip of land which constitutes a .street extending to the river bank between lots 33 and 34-, had been granted by Loranger to an individual, the grantee, ■or any one claiming under him, would have had an undoubted right to construct the wharf in question. As before • stated, it interferes in no manner with the navigation, and the -ostensible purpose in constructing it is to aid navigation, not to hinder or embarrass it. But the strip of land was not granted to an individual, but was dedicated to the use of the public as a street. The city is not the public, though it represents the public for all the purposes of control, repair and improvement of the street. The plat, under the statute which was in force when it was made and recorded, passed •the fee in all streets marked upon it to the county in which the city is situated: Comp. L. § 1345; but this was only in ■trust for street purposes. We attach no special importance to the fact that the title passed instead of a mere easement. The purpose of the statute is not to give the county the ■■usual rights of a proprietor, but to preclude questions which might arise respecting the public uses, other than those of ■mere passage, to which the land might be devoted. The common-law dedication would be sufficient to estop the owner from setting up any claim or asserting any right to the preju- - dice of the easement. Cincinnati v. White's Lessee 6 Pet. 431; Hunter v. Sandy Hill 6 Hill 407; Dubuque v. Maloney 9 Iowa 450; Schurmeier v. Railroad Co. 10 Minn. 82; Brown v. Manning 6 Ohio 298: s. c. 27 Am. Dec. 255; Tinges v. Baltimore 51 Md. 600; and this is all that is import■,ant here.
Complainant refers to several cases in support of his view
Prosser v. Wapello County 18 Iowa 327, though having-more apparent relevancy, is really no more important. It it must be borne in mind that in Iowa the boundary of private ownership on navigable fresh-water rivers is at the-bank. It was proposed to lay out a public highway across-the land of a non-consenting proprietor to the river Des-Moines, and the land-owner contended that this would deprive him of an existing ferry landing, and enable the landing to be made use of for the ferry of a third party. On this contention he claimed large damages. The court-held first, that no ferry could be established there except
There are a number of cases favoring the right of the city which are more directly in point, and some of which are referred to by counsel. In Barclay v. Howell’s Lessee 6 Pet. 500,512, it is declared that if a street as laid out is bounded by a navigable river, it is limited on that side only by the public right. “ To contend that between this boundary and the public right, a private and hostile right could exist, would not only be unreasonable, but against law.” In People v. Lambier 5 Denio 9 it was decided that a proprietor through whose land a highway extended terminating on navigable water, could not by filling up the land in front obstruct the public right of passage from the land to the water; but that the street was, by operation of law, extended from the former terminus, over the newly-made land to the water. This decision was approved in Newark etc. Co. v. Newark 15 N. J. Eq. 64, and the court in that case disposes of some objections which are suggested by the cases from Massachusetts before
That accretions in front of land dedicated to public use go-to increase the land thus dedicated is decided in New Orleans v. United States 10 Pet. 662; Godfrey v. Alton 12 Ill. 29; Cook v. Burlington 30 Iowa 94; as well as in the-New Jersey cases referred to. In Barney v. Baltimore 1 Hughes 118, it is decided that if one dedicates a street which runs to navigable water, he thereby surrenders it for use as-a wharf where1 vessels may load and unload. The same-principle seems to be recognized in Dugan v. Baltimore 5 Gill & J. 374, and is more formally declared in McMurray v. Mayor etc. of Baltimore 54 Md. 103. In that case-the following language is used: “In our judgment the dedication of Gross street to the public use as a street extending to the water, carried with it by necessary implication, the right of the city to extend it into the harbor by the construction of a wharf at the end thereof.” Authority, therefore, is very clearly and decidedly with the city, and the cases which favor its claim make no account of the
But an argument on the statute is made for complainant which requires some attention. The statute for making and recording town plats requires that the plat shall particularly set forth and describe all streets, etc., by their courses, lengths, widths, etc. Comp. L. § 1345. The plat in this ^case gave the width of the street which was laid down upon it, and also, by giving the dimensions of the lots, gave the length also. The argument is that the plat dedicated to public use so' much in width and so much in length, and no more, limiting the donation within the exact lines which would give that length and breadth. If this is the case, the proprietor might immediately on recording the plat have proceeded to take possession of the land at the end of the street; might have erected across it a barrier to prevent the. public having access to the navigable water; ■ might have sold it for the purposes of a ware-house, or made any other use which a private owner may lawfully make of his own possessions. It cannot be questioned that if she had asserted, exercised and been sustained in any such a right, it would have been a surprise to people purchasing lots embraced in the plat. They must have supposed that in dedicating a way to the river she was giving to the public access to the river, and not merely to a wall on its bank or some other obstruction put up to preclude access. It must have been understood by them, as it was by an eminent court under the circumstances of a similar dedication, that “ the purpose was to provide means of access for the public to navigable waters,” and that “such was the scope and purpose of the dedication.” Hoboken L. & I. Co. v. Hoboken 36 N. J. 540-546. If JLoranger had sold off every lot on her plat would it have entered into the head of any of her grantees that she still had upon the plat something which was salable ? "We think not. Whatever on the plat was not marked off as lots was dedicated to the public; and as the grant to an individual, vdien bounded by the water, extended to the middle line of the river, so the gift to the public had a similar extension. The
But it is not to be inferred, from what is above said, that in our opinion the city has a right to appropriate the end of the street to private uses, or to any uses inconsistent with the dedication. It would be premature for us to undertake to indicate precisely what the city may and what it may not do, since the question is not now before us. It is enough for us to say that the city derives its authority from the dedication of the public way, and that the construction of a wharf which shall give the means of access from the highway by land to the highway by water, is not inconsistent with the gift.
The decree must be reversed and the bill dismissed with costs of both courts.