197 Mich. 512 | Mich. | 1917
Lead Opinion
Paragraphs 1, 2, 3, and 5 of the bill of complaint are here set out:
“(1) That there is located in the township of Hamburg, Livingston county, Mich., on the west half of section No. 14 and the east half of section No. 15 a small body of fresh water known as Winans lake, covering about 100 acres of land; that said body of water is one of the finest lakes in southern. Michigan entirely surrounded by a highway and a good shore and*514 is well stocked with fish and is a valuable piece of property.
“(2) That your orator is the owner in fee simple of all the land to the high-water mark under the water of the said lake, except a small parcel on the east shore thereof, of which land your orator has a lease from the tenant thereof of all the land under the water upon said east shore; that he is either the owner in fee simple or the lessee and in possession of all the land covered by the waters of Winans lake to the high-water mark thereof; that he is also the owner of about 800 acres of real estate adjacent to said lake and the owner of cottages located upon the shores thereof, which cottages are used by him and his friends and tenants as summer homes.
“ (3) He shows that no other person or persons own any of the lands under the waters of said lake, and that there are no riparian owners thereof except himself. He further shows that there is no natural outlet to the waters of said lake and no outlet [inlet?] thereto except small ditches draining the adjacent lands. * * *
“(5) He further shows unto the court that David O. Willetts, Willis G. Johnson, and La Verne O. Cushing, all of whom are residents of the city of Ann Arbor, have from time to time for a period of two or three years last past been in the habit of coming upon your orator’s premises without his permission or consent and going upon said lake with their boats and fishing outfits and with their friends and agents and traversing the waters of said lake, taking fish therefrom, crossing your orator’s premises, and denying him the right to control his own premises; that your orator has asked the said above-named parties who are made defendants to this bill to desist and refrain from trespassing upon his property as aforesaid, and that they deny your orator’s rights to control his own property, and that they threatened to continue with their acts of trespass as heretofore stated, unless restrained from so doing by an order of your honorable court.”
At the hearing in the court below the plaintiff moved for leave to amend the bill of complaint, and, receiv
“The amendment, I propose, is to strike out of the second paragraph the sentence reading, ‘That he is either the owner in fee simple or the lessee of all the land covered by the waters of Winans lake to the high-water mark thereof,’ and insert instead of that the following: ‘That the lands on the southerly and westerly parts of said lake are owned by the plaintiff and his brother, Edwin B. Winans, Jr., subject to a dower interest therein owned by their mother, all of which lands he is in possession and has control thereof, except the dwelling house in which his mother resides; that he is either, the owner in fee simple or the lessee or the joint owner and in possession of all the land covered by the waters of Winans lake to the high-water mark thereof.’ ”
The prayer of the bill is that the said defendants be restrained, temporarily and permanently, from entering upon said premises without plaintiff’s permission. Defendants filed a joint answer, in which they admit the existence of the lake, that it is surrounded by a public highway, and they say that the boundary of the highway extends on the lake side to the low-water mark of the lake, and aver that any person rightfully upon the highway can rightfully pass over the waters of the lake in a boat without trespassing on the lands of any riparian owner. They aver, further, that the highway was established, constructed, and maintained by the public. They deny that plaintiff is the owner of all the land under the waters of the lake to the high-water mark except a small portion on the east side, or that he is the owner of all the land or the lessee thereof under the water of the lake. They aver that more than one-third of the shore of the lake on the east side is owned in fee by the heirs and estate of George Hull, deceased, and that those lands have been in the actual exclusive posses
The cause came on to be heard in open court, testimony was taken therein as in a suit at law, and a decree favorable to plaintiff, and from which he has not appealed, was entered. Defendants have appealed.
Plaintiff says the only question involved is whether
For the defendants it is said that the testimony does not support the contention that plaintiff is the owner or lessee of all of the land above or below high-water mark, but that, if he is owner or lessee of the entire bed of Winans Lake, and as such a riparian owner has the exclusive right to fish in the lake, he cannot maintain this action because he has leased the right to fish in the lake to the Pleasant Lake Club, a private lease. It is contended further that the undisputed facts show that Winans lake is a part of the navigable waters of the State, and any person navigating these waters from Lake Erie through and upon the Huron river and so through the connecting waters of Strawberry and Zukey lakes is rightfully upon the water and may fish therein from his boat. Finally, it is contended that, if Winans lake is, in fact, a private pond, plaintiff has not given such a notice to the public not to fish in its waters as to revoke the license which the public by custom had to fish there.
Winans lake used to be called Pleasant lake. There is no evidence that it is a meandered body, and there is only one line recorded in the government survey, which is the section line between sections. 14 and 15. The water covers a part of the southeast quarter of the northwest quarter, also the northwest quarter of the southwest quarter, and the northeast quarter of the southwest quarter, and the southeast quarter of the southwest quarter and the southwest quarter of the southwest quarter, and the southwest quarter of the northwest quarter of .section 14. On some of the subdivisions the water only covers a slight part thereof. On section 15 it covers a portion of the east half of the northeast quarter, the northeast quarter of the
It is plain, however, that the lake is not a public, navigable body of water, and 'is a privately owned pond. Giddings v. Rogalewski, 192 Mich. 319 (158 N. W. 951), and cases cited. Defendants have no right or license, from any owner or part owner of the property, to fish therein, without which, whether they enter the premises from a highway or elsewhere, they are trespassers. They have not been misled by any custom of public fishing in the pond or any failure to notify them that a public license to continue to fish there had been withdrawn. Marsh v. Colby, 39 Mich. 626 (33 Am. Rep. 439). The fact that there may be fish in the lake, not the private property of plaintiff or of any one else, and that the State may control the taking of fish therein, does not avail the defendants. They can no more enter without permission the portions of the premises covered by water than they can invade the uplands of the riparian owners. Sterling v. Jackson, 69 Mich. 488 (37 N. W. 845, 13 Am. St. Rep. 405); Hall v. Alford, 114 Mich. 165 (72 N. W. 137, 38 L. R. A. 205); Giddings v. Rogalewski, supra.
Except as costs are involved, the enforcement of
There is evidence of such an assertion of right by defendants and such conduct that continuing trespasses might be anticipated, to prevent which a court of equity may grant an injunction. There is such evidence of a family arrangement, to which plaintiff, his brother, and his mother are parties, by which plaintiff is in such possession and control of the Winans estate, and expected, if not under obligation, to protect and defend it from trespassers, that defendants ought not to be permitted to profit by any want of formality in the arrangement. And although the right to fish in the lake may have been granted by plaintiff to the Pleasant Lake Club, this fact does not prevent plaintiff from preventing, by proper action, trespasses upon his property. So also it is quite unimportant whether the injunction granted is in form perpetual. It should continue until such time as defendants, or some of them, have secured the right to invade the property and will not prevent them from securing or from exercising the right when obtained.
As I understand the record, however, plaintiff has not shown himself to be owner, or lessee in possession, of all of the land covered by the waters of the lake. In such case, of course, defendants might prove a license to fish in the lake, and it would then be a question for decision whether, possessing such a
No reason for disturbing the decree is seen, and it is affirmed, with costs to appellee.
Concurrence Opinion
I am unable to agree with Mr. Justice Ostrander in this case, and will briefly state my reasons.
I do not conclude from this record, measured by the holdings of this court, that Winans lake is a non-navigable body of water, or that its outlet is a non-navigable stream. The lake itself covers 100 acres, and is certainly a floatable body of water. Its outlet connecting it with Gut, Zukey, and Strawberry lakes flows into Huron river and Lake Erie. The fact that this outlet has a capacity sufficiently large to allow small boats to come up stream into Winans lake demonstrates to my mind that it has sufficient capacity to float logs down stream. It therefore has a sufficient capacity, a sufficient capability, to perform a valuable service to the public. If it has the capability of such valuable use, it is not of importance that it is not now so used. Its capability determines its character and fixes the rights of the parties; its use or nonuse does not change its character. I entertain no doubt that millions of feet of forest product have been floated to mill and market through lakes and streams much more inconsequential than this lake and outlet without a thought by owners of subaqueous lands that a trespass had been committed, or their rights invaded.
The narrow construction of what were and what were not navigable waters, and limiting the term “navigable waters” to those only where the tide ebbs and flows, never found lodgment here. The leading case of Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec.
“But in this country the public right cannot depend upon custom, or upon general use, and we accordingly find that in nearly all the States this rule has been extended so as to be adapted to the necessities of our trade and commerce, and to embrace all streams upon which in their natural state there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. A stream which can only be made floatable by artificial means can in no sense be deemed a public highway, nor, on the other hand, can the fact that a floatable stream has not been used by the public, or has only been used by persons following a particular occupation, deprive such stream of its public character.”
Measured by this standard, and it is the standard used by this court in numerous cases, I think that not only Winans lake, but its outlet, form part of the navigable waters of the State. Sterling v. Jackson, 69 Mich. 488 (37 N. W. 845, 13 Am. St. Rep. 405), and Hall v. Alford, 114 Mich. 165 (72 N. W. 137, 38 L. R. A. 205), are not in point. Both cases involve the right of fowling. Giddings v. Rogalewski, 192 Mich. 319 (158 N. W. 951), dealt with a small pond covering only 20 to 25 acres, with no inlet or outlet, entirely surrounded by lands of a single owner, and it was expressly stated:
“The right of the people to fish in navigable or meandered waters where fish are propagated, planted, or spread, and to which they have lawful access by land or water, even though such waters may superimpose the subaqueous lands of a private owner, is not decided nor involved here.”
It is provided by section 7694, 2 Comp. Laws 1915:
“That in any of the navigable or'meandered waters of this State where fish have been or hereafter may be propagated, planted or spread at the expense of the people of this State or the United States, the people*522 shall have the right to catch fish with hook and line during such seasons and in such waters as are not otherwise prohibited by the laws of this State.”
The testimony shows that Winans lake has been planted, with fish from the State fish hatchery at Northville. If this lake is navigable water, and I believe it is, and it has been planted with fish at public expense, as the proof shows it has, then I think the public has the right to go upon its surface and exercise the right of fishing, provided no fast land,under private ownership and control is crossed to exercise that right. It was said by this court in Lincoln v. Davis, 53 Mich. 375 (19 N. W. 103, 51 Am. Rep. 116) :
“Such fishing as is done with lines from boats, even in narrow streams, cannot be complained of by riparian owners. The fish are like any other animals ferse naturas, and in this region have always been regarded as open to capture by those who have a right to be where they are captured.”
The bill alleges and the map shows a public highway on the shores of this lake. One can step into a boat from this highway and touch no part of the fast land under the control of plaintiff. I do not understand that there has been any trespass upon or threatened trespass to the fast land under the control of plaintiff. I think the bill should be dismissed.