104 Mich. 208 | Mich. | 1895
Flowing from Portage lake, in St. Joseph county, is a stream called “Portage River,” upon the banks of which, some distance below the lake, at a place called Parkville, the complainant maintains a dam and operates a flouring mill. He is also the owner of a steamboat capable of carrying something over 15 tons, which he and his grantors before him have used in transporting the product of the mill up the Portage river, through the lake, and up Bear creek, to Portage Lake station, upon the Grand Rapids & Indiana Railroad. The river above
The testimony in this case satisfies us that this stream, in its natural condition, was sufficiently large and deep to permit of the floating of logs at some seasons of the year, but that it was not large or deep enough to float this steamer from Parkville to the lake until the dam was built. This, however, was sufficient to fix the character of the stream and the rights of riparian owners and the public in it. In Moore v. Sanborne, 2 Mich. 519, it was held that—
“The true test in determining the right of public .use in fresh-water streams, as public highways, is whether a stream is inherently and in its nature capable of being used for the purposes of commerce for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it.”
In that case it was held that the easement existed,
Again, in the case of Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, Mr. Justice Cooley reiterated the doctrine that the easement existed during the seasons when the water was sufficient for the purposes of commerce, but that it extended no further than the use of the natural flow of water. After a discussion of the authorities, the distinguished jurist continues as follows:
“The dootrine, then, which we derive from the cases, is that.a stream may be a public highway for floatage when it is capable, in its ordinary and natural stage, in the seasons of high water, of valuable public use. The inference •sought to be drawn from it is' that a navigable stream must, in contemplation of law, be navigable at all times, •and under all circumstances; that there can be no such thing as a highway which is only open to the public use periodically, but that, when once the public character of the way is established, the right of the public to the easement is paramount to all private rights; and that nothing ■done to facilitate the public use can be the foundation of a right of action, unless in itself unreasonable, when the •due subordination of private to public rights in the stream is considered and properly allowed for. But no such'inference is warranted by the decisions. The highway they recognize is one sui generis, and in which the public rights •spring from peculiar facts. It is a public highway by nature, but one which is such only periodically, and while the natural condition permits of a public use. During that time, the public right of floatage and the private night of the riparian proprietors must each be exercised with due consideration for the other, and any injury which the latter receives, in consequence of a proper use of the •stream for floatage, he must submit to as incident to his .situation upon navigable waters. Middleton v. Booming Co., 27 Mich. 533. But, at periods when there is no highway at all, there is no ground for asserting a right to create a highway by means which appropriate or destroy private rights. The doctrine that this may be done with-cut compensation to parties injured is at war with all our ideas of property and of constitutional rights. The most that can be said of this stream, during the seasons of low*212 water, is that it is capable of being made occasionally navigable by appropriating for the purpose the water to-the natural flow of which the riparian proprietors are entitled. It is highly probable, in view of the large interests which are concerned in the floatage, that the general public good would be subserved by so doing, but this fact, can have no bearing upon the legal question. It is often the case that the public good would be subserved by forcing a public way through private possessions, but it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public.”
The complainant and his grantors had a right to maintain the dam and pond, which last the defendants claim to have extended to the .lake, raising the water all the way, and making the river navigable for this boat. This was a private pond, and nothing indicates that he had not. a right to run his boat there at all seasons. No testimony was offered tending to show that his rights were in any way limited, and, for aught that appears, he may have owned the fee of all the land covered by the pond. His right to use the pond for running the steamboat was. recognized when it was asserted, and the bridges were reconstructed to permit its exercise, and again when the bridges were rebuilt. A decade or more after, when it became necessary to rebuild the lower bridge, the local authorities concluded to cut off his use of the stream. To do this they propose to cut down the abutments and the approaches, instead of using them as they are, and to entail a-loss upon him which is unnecessary. Many interesting questions suggest themselves in connection with the case, but under the proofs we think that the complainant cannot be deprived by the township officers of what appears to be his right without condemnation and compensation.
Moreover, the stream being navigable, the local authorities have no right to build a bridge without action by
The decree of the circuit court will be reversed, and one entered here in favor of the complainant in accordance with the prayer of his bill, with costs of both courts.