Ryan v. Brown

18 Mich. 196 | Mich. | 1869

Campbell J.

Complainant being owner of certain dock property in the St. Mary’s River at the foot of the Rapids, and just below the Canal entrance, had certain cribs, placed there by his grantor, intended as a foundation for additional docks on a line with the outer end of the old dock, which last, after the canal was built, had presented an angle to the line of direction of the canal. The new docks, as projected, were intended to remove this angular projection, by building a dock in a line substantially coinciding in direction with the side of the canal as extended. The old dock, being at the head of river navigation, had its front at a considerable angle with the general direction of the stream, as the river widened out below the rapids, and vessels could proceed no further up stream; and such a position was favorable to turning. When the canal was opened, vessels entering it would pass the outer point of the dock, and at certain stages of the wind might have found inconvenience from being brought in contact with the angle, if of light enough draft to approach it. The new dock would have presented an even front parallel with the canal line.

The bill charged defendants with threatening and attempting to remove the cribs and the extremity of the original dock, and they justified as authorized to remove them, as obstructions to navigation; their authority being an order of the Canal Board to that effect.

The answer does not show, and the proof very clearly disproves the fact, that the original or extended dock would have been any obstruction to the natural navigation of the river. It appears quite as clearly, that the altered dock would have been more convenient for shipping after the canal was opened than the old one. And the testimony, so far as it shows any inconvenience to navigation as it stands, which is very slight, shows at the same time, that the inconvenience would not have arisen except for the .action of the defendants, in dredging and removing the structures upon the premises concerning which the controversy arises. We think, if the questions in the case depended on the existence, of a nuisance in fact to the improved navigation, that the facts show rather that a widening out of the canal entrance over these premises would be a desirable improvement, than that these docks, as left to be maintained under the decree of the court below, would amount to such nuisance. The Circuit Court dissolved the injunction as to the lower end of the proposed addition, which would have presented an angle at the east end (and concerning which there might have been more controversy, if the rights of the parties depend on the - riparian theory asserted by the defense), and only maintained it as to the rest.

The answer set up, but without any proof on the subject, that Ryan, the complainant, received his title from the former owner, "Warner, without consideration, and upon a trust for his benefit. But defendants are in no wise concerned with such an inquiry, and a voluntary deed, without consideration, can only be avoided by some one having equities against it. — Jackson v. Cleveland, 15 Mich. 94.

The case, therefore, stands upon the rights of the complainant as a riparian owner, and those of the state as proprietor of the canal, and also as guardian of the rights of the public. And the defense rests not only upon a general denial of the rights of riparian owners to improve their property by wharfage, but also upon an assertion of proprietorship in the state of the property embraced within a strip four hundred feet wide, which is claimed to extend down the River over the lands in dispute.

Unless very clearly confined within less limits by the terms of the grant, we have held the settled law of this state recognizes every ownership of lands upon streams as extending over their bed, to the middle of the stream, when it is a river. Any erection which can lawfully be made in the water within those lines belongs to the riparian estate. And the complete control of the use of such land covered with water is in the riparian owner, except as it is limited and qualified by such rights as belong to the public at large to the navigation, and such other use, if any, as appertains to the public over the water. — Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Id. 125.

The complainant’s title is not shown to have been restricted in any way, except as it would thus be subject to any rights of the public in the use of the stream. And so far as the strip of four hundred feet wide is concerned, it never approached this land. It is granted by the act of Congress providing for the canal, as a part of the lands included in the Military Reservation, through which the canal was to be built; the act giving the right of way, and granting that width of land for its location and that of the necessary appurtenances. — 10 L. of U. S. 35-36. There is nothing in the act assuming to override any private rights, or to include in this grant any land outside of the Reserve-It had been for many years a disputed point whether the State could cross the Reserve without permission, and if it could, there might have been difficulties in the way of condemning land, not being a part of the ordinary domain, but set apart for public purposes, and supposed to be withdrawn from plenary local jurisdiction. This grant removed any doubts upon this subject, but the United States did not and could not give the state any control over private property. That is always subject to the eminent domain for public improvements, and the state authority on that subject was already paramount; but, in order to take property for public purposes, it must be paid for. And, if the state should set up any proprietary rights over the property involved in this litigation, they can only be maintained upon proof of a valid grant, or legal appropriation upon an inquest in form of law.

The controversy, therefore, is narrowed down to the single inquiry, whether the defendants are justified in removing the structures of complainant as unlawful obstructions to navigable water, and as nuisances which they are ' authorized under the direction of the Canal Board to abate.

That board has such a control over the canal and its approaches, as to be authorized to remove such obstructions as are unlawful. But they have not, and could not have, any such judicial authority as to make their finding of any conclusiveness whatever, upon the fact of illegality. Such action must be had at their peril, and can never justify themselves or others in interfering with any rights lawfully existing. They become wrong-cloers as soon as they attempt to interfere with private property lawfully existing where they assail it.

The defendants. claim that this property was in fact unlawfully placed in the stream, and within the jurisdiction of the board to remove. And it is asserted that every erection in the water is unlawful, as interfering with the right of navigation, which extends over the whole stream to the shore.

In those waters whose beds are public, and not private property, erections by riparian owners are unlawful, not because they are nuisances, in the proper sense of the term, but because they are encroachments on the public domain, and they are as unauthorized as would be the erection of houses or barns upon public land away from the water, by an adjoining landholder. But, where the ownership is private, and the public rights are simply easements or privileges upon it, the owner may do what he pleases, 'so long as it does not injuriously affect the public enjoyment. On land, where roads are laid out of a prescribed width, the law or the authorities having determined that width to be desirable, the right to encroach upon the way cannot be very extensive. But where the way exists in a watercourse, whose boundaries are variable and laid down without human intervention, the extent to which private improvements are compatible with the public use must depend upon circumstances, and must always be a question of fact. The owner’s use is lawful until shown to be unlawful. It is plain enough that there are streams which cannot safely be encroached upon at all, while there are others so considerable that they could not be appreciably injured by a very extensive system of dockage or' other erections in their beds.

The rights of the public for purposes of navigation must be appurtenant to the ordinary means of navigation. Small boats can land where large ones do, but large ones cannot go where small ones can. It would be absurd to apply rules to the enjoyment of rights of navigation, as if canoes and scows, instead of ships and steamers, did the business of the country. If wharves and similar conveniences were not allowed upon our large streams, the shipping business would become practically worthless. It can never be unlawful for a land owner to make such wharves and landings as will accommodate all vessels ordinarily using the stream, unless there are some exceptional circumstances, as narrows, bends, or the like, which may in particular cases render his structures improper. Then the private right must yield to the public right. But where they do not conflict, there is no wrong done.

In the case before us, the original wharf went out into the stream as far as the proposed extensions. No vessel could pass above it, as it was just below the Bapids, and was the extreme upper limit of navigation. For all practical purposes the navigable stream began there.

It is admitted that before the canal was built, the wharf was a. necessity, and operated as a very great convenience to vessels. And from the end of the wharf to the old shore line, even if it had been deep water, the space was not more than an ordinary steamer’s length, while, in fact, the proof shows that it approached shoal water so nearly, that at that point the water, which was deeper lower down, was too shallow to accommodate ' large vessels. There was nothing which could be called navigable water available above it.

This structure being lawful, and any additions which could have been made to it above, being in no way adapted to interfere with navigation, the State undertook, not to improve the navigation of the riverj which practically ended there — the- Sault being an insurmountable obstacle — but to make an artificial water-course in the shape of a canal, to connect the waters above the Falls with the stream below. This canal is in no sense a part of the river. It is as distinct from it as if the waters it connects were two separate streams. The rapids severed the upper and lower' waters as effectually as if they flowed in different channels. The canal is an independent water-way, like a turnpike, which can only be used upon such conditions as the State, under the Congressional grant, might lawfully impose. The premises in question are not within it, and have never been assumed under the eminent domain- for ■ public use. The erections are not charged in the answer to obstruct any but canal navigation, and the proofs show that such is the only effect, so far as they are obstructions at all.

The State has no more right to interfere with private property without compensation, to make or improve a canal, than it has for a road upon land. And if the canal entrance is desired to be made wider, and the widening is over private property, which, in the absence of the canal» could have been kept improved without any impropriety, the State may unquestionably have it condemned by some process of law provided for the purpose, Or may purchase it of the proprietor; but it cannot be taken arbitrarily. It is as much the owner’s freehold as if it were upland.

It was suggested on the argument that these improve" ments were prohibited by section 4, article 18, of the Constitution of 1850, which declares that “No navigable stream in this State shall be either abridged or dammed without authority from the Board of Supervisors of the proper county, under the provisions of law.”

The constitution, as reported in its several stages, and as published, with the joint certificates of the Secretary of State, and Mr. Swegles, principal secretary of the convention, as having been enrolled and signed, uses the word “bridged” instead- of “abridged,” which latter is a word not commonly used in such connection. — Convention Debates, xxxvii, 909, 828, 830, 831.

Whichever may be the correct reading, it is, we think, plain that this provision refers only to such streams as are wholly within-the state, and which at any given point must be under the control of one or more boards of county officers, instead of in part subject to the jurisdiction of a foreign country, with which no board of supervisors could lawfully treat or hold any official intercourse. The provision ■ was adopted as relating solely to our internal police, where the authorities acting under state law could. entirely regulate the use of ,the stream for the purposes proposed. ■

It was also claimed that the injury complained of was not such as to authorize the interference of a court of equity. But, where a trespass is calculated to do permanent damage to the freehold, the jurisdiction has always been exercised, and the circumstances of this case show that the injury must be very serious if permitted. It is not necessary to consider the insolvency of the defendants, for the remedy does not depend upon it. The case also involves an abuse of authority by public officers and agents, under color of office; and ever since the case of Osborn v. Bank of U S. 9 Wheat. 738, it has been held that such official oppression would make it proper to interfere upon a less grievance than would justify proceedings on private misconduct, for reasons that are too obvious to require explanation. But, as before stated, the injury itself is, in this case, such as to give jurisdiction, independent of the position of the actors.

As complainant has not appealed, we cannot consider the propriety of the decree dissolving the injunction as to' the cribs below the .old dock. But the decree as made against the defendants must be affirmed, with costs.

Christiancy and Graves JJ. concurred. Coóley Oh. J. did not sit, having been of counsel.