44 Mich. 7 | Mich. | 1880
This is a suit to recover of the defendant a considerable sum of money which the plaintiffs have paid under protest, as tolls for passing through a canal around a "dam constructed by defendant across the Cheboygan river about a mile above its mouth where, before the construction of any dam, there were rapids. To an understanding of the legal questions it is necessary to have some knowledge of the water-courses which find an outlet by way of this river.
The stream named the Cheboygan is eight miles long, passing from Mullett lake to Mackinaw straits. Mullett lake is twelve miles long by three or four wide, and is connected with Burt lake of like size by Indian river, a stream five miles long. Crooked river, five miles long, connects Crooked lake, six miles long and a mile wide, with Burt lake. Bound lake, about a mile in diameter, is near Crooked lake and connected with it. About five miles above the mouth of the Cheboygan river, Black river comes into it. This is a stream sixty miles long, and passes through Black lake, which is ten miles long and three wide. Bainy river, thirty miles long, empties into Black lake. Pigeon river, forty miles long, empties into Mullett' lake. Sturgeon river, seventy miles long, empties into Indian river. Maple river, thirty miles long, empties into Burt lake. Two small steamers, capable of carrying a hundred passengers each, navigate the waters from the head of Crooked lake to the straits of Mackinaw. All the waters mentioned are made use of for floating logs and lumber on their way to the place of manufacture or to market, and vessels drawing five feet of water run up to the head of Mullett lake, and those drawing two and a half feet to the head of Crooked lake. Freight boats and lighters are also used on Black river.
In the year 1817 a dam was built by one McLeod across the Cheboygan river where that of the defendant now stands. It was not so high as defendant’s dam now is, but high enough to raise the water so that such craft as the plaintiffs now make use of on the river could navigate it to Mullett’s lake.
To prove a personal grievance the plaintiffs gave evidence tending to show that they owned a mill above the dam, and used in their business a tug and several ligbiers; that in 1876 the tug made a hundred and sixteen trips each way, and the
It was decided in Benjamin v. Manistee River etc. Co. 42 Mich. 628, that the State might lawfully authorize corporations to make improvements of navigable rivers and to charge tolls for the use of the same, notwithstanding the compact in the Ordinance of 1787 that the navigable waters of the Northwest Territory should be forever free. The tolls, it was said in that case, are not charged for the use of the navigable river thus made free, but are imposed in respect of the improvements, and to obtain the benefit thereof, and the compact itself might have been a curse to the Territory instead of the blessing it was meant for, had it required the water highways of the Territory to remain unimproved in order that they might be used in their natural condition without toll or impost. That case governs this, to the extent at least of determining the general question of the right to take tolls.
But it is insisted on the part of the plaintiffs that the right to the free navigation of public streams must still exist, notwithstanding the improvements, as to whatever property or
We do not think the broad question which the plaintiffs attempt to raise is in the case. There was no attempt in the court below to show that the commerce carried on by the plaintiffs was not facilitated by the improvement, or that any portion of it was burdened with tolls for the use of that which did not benefit it. It was shown, negatively at least, that the tug and lighters required the facilities of the canal in passing down, and though it was proved the lightérs could have passed up unloaded before the dam was constructed, it did not appear that their going up, when they could not also go down, would be of advantage to the interest of any one. The rafts, it was • shown, could have passed down before, but' whether as conveniently and safely did not appear. It is consistent with everything appearing in the record that every use made by the plaintiffs of the river was facilitated by the construction of the dam and canal. If they were so, the exaction of tolls for the use of the canal was as proper and just as it would have been if the dam had first made the use of the waters practicable. The tolls are charged in respect to the enjoyment of benefits conferred by the expenditures of defendant; and whether these benefits originate with the improvement the defendant has made, or are only enhanced by it, is immaterial to the justice or legality of the impost.
It is further contended that defendant is the successor and assign of McLeod in respect to this dam, and is charged with all his duties; and that there was legislation under which
But it is said that defendant must claim under McLeod, who built his dam before the present Constitution was adopted, because since that time no dam can be constructed across a navigable stream except with the consent of the board of supervisors Of the county, which defendant has never obtained. The conclusive reply to this suggestion is that no question of the consent of the board of supervisors appears to have been made in the court below, and we neither know what the fact was, nor could we act upon it if we did. We sit here to review only the rulings of the circuit judge.
The circuit judge gave instructions to the jury corresponding to.the views above expressed, and verdict and judgment were rendered for defendant.
This judgment must be affirmed with costs.