Thornapple Lake is a body of water between two and three miles long, and half a mile in width, in the county of Barry. The testimony in the case shows
Interested partiеs filed a petition with the county drain commissioner to establish a drain beginning at the outlet of the lake and extending dоwn the stream, the avowed object of which was to lower the level of the lake four feet. Near the south bank of this lake there is a high bluff, owned by the complainants, which approaches within 50 feet or thereabouts of the water’s edge. The complainants’ father owned this property, consisting of a farm, and he built a dock and filled in аlong the shore behind it; thereby giving access to the lake, where he kept boats to let, and a steamer, which hе used to transport pleasure seekers who were attracted to the place. For three decаdes or more he and his children, who now own the place, conducted a successful resort, and spent cоnsiderable money in improvements. Among other things constructed by them to this end were a dance hall, and a larger dwеlling, a boathouse, and a depot or waiting room for passengers. This was immediately in front of, and within 70 feet or thereabouts of, the house, and also immediately opposite the dock. There is about 4 feet of water at thе dock at the ordinary stage of water.
The drain proposed will lay bare about 66 acres of the bottom оf the lake, and it will make shallows of other lake bottoms now covered by 4 feet and more of water. It will corrеspondingly lessen the area, that can be traversed by complainants’ boats — especially their steamboat. The com
The complainants were not made parties to the drain procеeding. They were not assessed for benefits, and we do not see how they could be, and, on the other hand, no damages suffered by them were considered.
Section 4339, 2 Comp. Laws, provides:
‘ ‘ Drains may be laid or extended into or along or from any lake or other body of water surrounded wholly or in part by a swamp, marsh, or other lowlands for the general purpose of drainagе contemplated by this act but not so as to impair the navigation of any navigable water.”
The evidence in this сase is clear that Thornapple river and Thornapple Lake have been used for floating logs whenever there were logs to float, and occasion to float them. As long as there was timber in the vicinity, it was floatеd upon the lake; and in early days timber was brought down the tributaries not only to a boom and mill upon the lake, but also down the outlet to a mill situate at Quimby, a mile or two below the lake, and it has been navigated since by thousands in steambоats and skiffs owned by complainants. The stream and lake were therefore navigable waters, under our decisions. See Moore v. Sanborne,
“The navigable waters leading into thе Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, imposts» or duty therefor ”
—Saved to the public the right to nаvigate the streams of the State by bateaux, and even canoes. Who can doubt that the Grand river and its tributaries wеre navigable, under this rule, as well as Thornapple Lake, through which the river runs ? It may be that hurrying the water from the surface of the land by artificial drains, which empty it into the Great Lakes with a celerity which nature abhors, is essential to publiс health. Under this statute, it is possible that private lakes and ponds may be obliterated in the interest of public health, upon compensating the owners for the loss, which, however, has not been done nor proposed in this instanсe; but the legislature has set bounds to the practice, by limiting such draining and prohibiting the impairing of the navigability of water. Thоrnapple Lake being navigable, and this drain being admittedly intended to lower the ordinary level of the lake four feet, it is forbidden by the statute.
As this point disposes of the case, we do not pass upon other questions raised.
The decree is affirmed.