Lorman v. Benson

8 Mich. 18 | Mich. | 1860

Campbell J.:

The rights of the plaintiff in this case depend entirely upon the doctrines applicable to riparian proprietors upon the water communication which is known as Detroit river.

Some reference was made on the argument to the general system of law prevailing here, in view of the former history of the country; but we deem it useless to enter into any extended examination of this question. It is undoubtedly true that at one time the Custom of Paris was in force here. It was expressly abrogated by the Territorial Legislature in 1810, and probably applied to very few cases then, if to any. Practically the common law has prevailed here, in ordinary matters, since our government took possession; and the country has grown up under it. How, or by what particular means, it originated, would open an inquiry more curious than useful. A custom which is as old as the American settlements, and has been universally recognized by every department of government, has made it the law of the land, if not made so otherwise. Our statutes, without this substratum, would not only fail to provide for the great mass of affairs, but would lack the means of safe construction. We are of opinion that questions of property, not clearly excepted from it, must be determined by the common law, modified only by such circumstances as render it inapplicable to our local affairs. Such was the view taken in Stout v. Keyes, 2 Doug. Mich. 184, and in the opinion of Mr. Du Ponceau, cited in 1 Bish. Cr. Law, §15, n. 4.

There are ,no tide waters within this state, and therefore no waters which, by the technical meaning of the term “navigable” at common law, would come within it. But we have more than a thousand miles of external boundary waters, which are open to navigation in the popular sense, and many interior streams valuable for purposes of public convenience and passage. The inquiry before us is, whether our circumstances require the common law rule to be so modified as to apply the doctrines belonging to tide waters, navigable in the common law sense, to these waters, which are beyond the tidal influence.

By the Ordinance of 1787, these Avaters, Avhich are there designated as “navigable,” are declared to be public highways. No special force can be derived from this language however, for it applied very evidently not only to ship and vessel navigation, but more generally to the passage of canoes and bateaux, which Avere then the chief means of conveyance, there being few large vessels and fewer land roads. But the Ordinance couples with the waters the portages or carrying places connecting them, and which Avere used by the parties making long voyages in small boats, in passing from river to river. Such were the portage between Fox and Wisconsin rivers, that around the falls of St. Mary, and others. We are therefore compelled to look at the nature and situation of the streams themselves, and not to any mere verbal nicety. And it becomes necessary to glance at the rules of the common laAv as applied in England, and to see how and wherein our position may require a modification of them.

There are, in England, two kinds of water highways. All rivers and streams above the ebb and flow of the tide, which are of sufficient capacity for useful navigation, are public rivers, and subject to the same general rights which the public exercise in highways by land, to which Lord Hale aptly likens them. In these streams the adjacent proprietor owns the banks and bed, and has a right to make such use of this land, and of all benefits of the stream, as will not interfere with the public easement or servitude. Formerly it was doubted whether a right to the use of the bank for towage was not appurtenant to the public easement of navigation, but it is now declared to exist only in particular places by local usage.' — Ball v. Herbert, 3 T. R. 263; Blundell v. Catterall, 5 Barn. & Ald. 268. Wharves, or other appropriations of the bed of the stream were only allowed So far as they did not actually obstruct free navigation, and when they did so, they were indictable as public nuisances.’ Their analogy to highways was complete. — Hale de Jure Maris, ch. 2, 3.

All navigable waters in which the tide ebbed and flowed were also public highways. The right of navigation was precisely like that in other public rivers, ánd there was no right to use the banks for towage. But there were some important distinctions to which we must ’carefully attend. The grant of land bounded by the stream did not convey the fee to the centre or thread of the stream, but stopped at the line of ordinary high tides, which is declared in the late case of Attorney General v. Chambers, 27 Eng. L. & Eq., 242, not to extend up to the line of highest tides, but to that medium line which is the average bound of ordinary and natural high tides throughout the year. The shore (which signifies the land between high and low tide), and the bed of the stream, were the property of the King or of individvals, but presumed to be in the King until shown to belong elsewhere. When owned by the King, it was as part of his Jus privatum, and subject to be disposed of by him until restrained. — See Attorney General v. Burridge, 10 Price 350; Attorney General v. Parmeter, Ibid. 378 ; Parmeter v. Attorney General, Ibid. 412. And it was subject to substantially the same rules and burdens whether- owned by the King or by private persons. — Mayor of Colchester v. Brooke, 7 Q. B. 339, and cases above cited. The public had a right of navigation over the whole bed of the stream at high tide, and over the water, so far as it was practicable, at all tides. As this was a common law right, and only to be repealed by Parliament, the King could not,' neither could any one by his authority, make any erections which .would obstruct navigation. Thus far his rights were qualified by the public easement, precisely like those of a private owner in the bed of a public stream above tide water. In both classes of streams the public easement controlled the use of the land. The easement reached the high water line whenever the tide was up, and prevented any permanent improvements below that line as effectually as below the ordinary river margin, and no more so, and for no different reason. The owners of the soil in both streams could make any erections which were not nuisances, and their character as nuisances was to be determined as a question of fact: — • King v. Tindal, 1 Ad. & E. 143; Regina v. Betts, 22 Eng. L. & Eq. 240; Hale de Port. Mar., pt. 2 ch. 7 p. 85. The Legislature could grant to the owners in either case the right to make such erections as would otherwise be unlawful, for they may determine or extinguish any public right; and this power has frequently been exercised; and, when occupied for public use, by railroads, or other works, the owner, whether King or subject, is entitled to his "damages for the use of it. — See Rex v. Montague, 4 B. & C. 598; Abraham v. Great Northern Railway Co., 5 Eng. L. & Eq. 258.

The principle which gives the land between high and low water mark to the crown, is said, in the case of the Attorney General v. Chambers (above cited) to be “ that it is land not capable of ordinary cultivation or occupation; or, according to the description of Lord Hale, as generally dry and manurable; and so it is in the nature of unappropriated soil. Lord Hale gives as his reason for thinking that lands only covered by the high spring tides - do not belong to the crown, that such lands are for the most part dry and manurable; and, taking this passage as the only authority at all capable of guiding us, the reasonable conclusion is that the crown’s right is limited to lands which are, for the most part, not dry or manurable.”— See also Lowe v. Govett, 3 B. & Ad. 863.

Here then we have the doctrine very clearly maintained, that the riparian owner takes all the ' land which is of any use for ordinary purposes, and all which is not commonly submerged by the average ordinary high tides, which would seldom leave any of the shore dry more than twenty-four hours at a time. It is not reserved, therefore, as useful land, bxrt as waste land which is characterized by the water service over it. And the firm land, which is made by alluvium, becomes private and not crown property.-— Gifford v. Lord Yarborough, 5 Bing. 163; Scratton v. Brown, 4 B. & C. 485. But as the public are sometimes said to have rights to some easements on the shore, it may be well to notice what those rights are.

The case of Blundell v. Catterall, 5 Barn. & Ald. 268, contains a more full investigation of this subject than any other modern case to which our attention has been called. As we have already seen, the public rights are in general the same whether the soil of the bed and 'shore of tide waters is owned by the crown or by individuals. In the case now referred to, the plaintiff, a private person, owned the shore and upland, and brought an action of trespass against the defendant for crossing the shore on foot, and with carriages and bathing machines. ' The defendant justified on a claim of a public right of way for bathing purposes. The case was considered by the court upon the' general law of the land, and may be regarded therefore as a fair exposition of it. It was held by all the court except Best J. (Abbott C. J., Holroyd and Bayley JJ. concurring) that no general right existed under which the defendant could justify. And it was laid down as a general rule, that the public rights over the shore existed not as land but as water - rights, to be exercised when the land was covered by the tides. The only public rights recognized as commonly existing on such waters were those of navigation and fishing; and it was left undecided whether any common right of fishing could ever exist where 'the. soil was private. And it was very clearly held that no one could, of right, plant stakes or other temporary or permanent conveniences for drawing nets on any part of' the sea-shore, whether private or not, except the land owners. The right of landing, and of loading and unload-, ing, was held to exist (except by particular custom) only in ports and established landings. And, while it was said that it was quite common to use the shore for various pur-* poses of passage, that use was regarded not as rightful, but merely by sufferance, and analogous to the frequent passage over unenclosed lands, which was not lawful, but was seldom complained of.

When, therefore, we look at the state of the common law upon the subject before us, it is very evident that the ebbing and flowing of the tide, and not the mere sus-* ceptibility of the stream to purposes of useful navigation, has made the distinction between the rights of riparian owners on the fresh and tidal public streams of England and that, where these happen also to own the shore on tide waters, their ownership is not distinguishable for any useful purpose, if at all, from their dominion over the beds of fresh water public rivers. By giving in all cases the whole extent of dry and available land to the bordering owner, the law left to the crown, in any case, a very unprofitable ownership, which could rarely aid him, or any grantee, unless the latter owned also the upland.

In both kinds of public streams the rights of naviga-. tion were the same; and, so far, the public at large had no interest whatever in the question of ownership of the bed of the water. The right of fishing in navigable rivers, was not originally a general common law right of every subject, excluding the possibility of a private right to a several fishery, but a prerogative right of the crown, and grantable with, if not attached to, the soil in private hands. Considering the high esteem in which navigation was held in England, we may be sure that no principle would have been allowed to grow up into common law, which would materially impair the shipping interest. And the adjudged cases recognize the common sense doctrine that it did not matter who held the fee of property, so long as the public easement was maintained. We do not find that the public rights over navigable Avaters belonging, Avith their beds, to manors, were any more hampered than when the title was in the croAvn. The doctrine that the whole public easement ceased Avith the destruction of the navigable character of the waters, is intimated in Rex v. Montague, 4 B. & C. 498, and strongly confirms Blundell v. Catterall in the limitation of public rights not depending on navigation.

The Roman law recognized the title of the river beds as belonging to the riparian proprietors, subject to the public easements of passage and toAvage, and of moorage on the banks. The modern civil law is said to be generally different in this respect; but it is laid down by Justinian that all newly-formed islands belong to the riparian proprietors; and Vinnius demonstrates that this right is incident to and derived from the ownership of the bed. — Vinnius Com. on Justin. Lib. 2 Tit. 1, §§4, 5, 20, 22, 23. And see also the opinion of the Chancellor in Canal Appraisers v. The People, 17 Wend. 592, 3.

It is also worthy of remark, that in this country, in most of the states where it has become necessary to discuss tideAvater rights, all of the modifications made have been in favor of riparian owners, extending their privileges beyond those at common law. We do not deem it necessary to review the many cases cited on this subject by counsel. They differ in many particulars, but in most of them we perceive an enlargement of riparian privileges, and in no case is there any curtailment of them.

In applying the principles of tthe common law to the tideless stream in question, we do not perceive what public interests would be subserved by placing it on the footing of tide waters, when the rules applying to public fresh water streams provide amply for every common easement. The right of navigation, to which all others are subservient, is in no way injured or abridged by this holding. And the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. "We can perceive no advantage to the state in setting up a barren and useless title. We think that in this respect the common law is already adapted to our circumstances, and needs no changing.

It is urged that this ruling will interfere with the improvement of rivers, and disturb the title of islands. But these objections are not well taken. The public authorities can regulate water highways as well as land highways, although the soil of neither belongs to the state. And if the government see fit (as is the case with all islands in this river, which have not only been kept separate as property from the mainland, but most have been named and distributed between Great Britain and the United States by treaty) to regard each island as a separate property, this infringes no common law rule. Islands have always been susceptible of separate ownership, and when so separated the Jilum aqua,e is to be drawn between them and the mainland. The facts before us create none of the embarrassments which have been suggested to us, and we have no difficulty in holding that the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. The cutting of ice is the exercise of a valuable privilege in securing that which has become stationary on the freehold; and we can conceive of no reason which would justify a denial of it. And we think a trespass creating an obstruction which prevents it, justifies a finding of damages for this as á direct consequence of the injury. — White v. Mosely, 8 Pick. 356. The right to raft logs down the stream does not involve the right of booming them upon private property for safe keeping and storage, any more than the right to travel a highway justifies the leaving of wagons standing indefinitely in front of private dwellings or stores. And the booms in question were erected under a license from the plaintiff’s grantor now determined, and not under any right or claim of right as appurtenant to navigation.

The cases cited from Ohio, Indiana, Illinois, and Wisconsin, as well as from some of the older states, show, as we think, that the common law rule is the most desirable one, so far as fresh streams are concerned.

Had the usage of this region been inconsistent with the rule we have adopted, that might afford some reason for doubting its applicability. But usage has uniformly conformed to it, and, so far as we have any legislation bearing Upon the subject, it recognizes the rights of private owners fully. The charter of Detroit, passed in 1827, contained the following provisions: “ That nothing in this act contained shall be construed to vest in the said corporation, or any officers thereof, any right to the water, or the land undijr the water, in front of the farms included within the said city, nor any power to erect, or cause or authorize to be erected, any wharf or other thing on the said land; but the right of the proprietors of the said farms, to the water and land in front of said farms, and to fill in the water, and erect fixtures thereon, shall remain and vest in said proprietors the same as if this law had not passed. R. L. of 1827, p. 588, §49. This provision was preserved in terms until the passage of the new charter of 1857, which'indirectly recognizes the same principle, by giving to the city power to regulate navigation, and to build wharves on their own property; but, as to all other property, merely to establish a line beyond which wharves shall not extend. — L. 1851, p. 95. The right of individuals has been constantly asserted and exercised.

"We think that the plaintiff has, under his lease, a legal interest in the land covered with water, which will support the action of trespass; and that the hindrance in taking ice was the proper subject of damages under the case presented.

The other Justices concurred.