Bott v. Natural Resources Commission

327 N.W.2d 838, 415 Mich. 45

Opinions

Levin, J.

Littoral owners on 75-acre Big Chub Lake (in Bott)1 and 60-acre Burgess Lake (in Nicho las) seek, with the Department of Natural Resources, over the objections of Bott and the Nicholases, access through connecting creeks to nearby 35-acre lakes.

Bott owns all the land surrounding both 35-acre Linton Lake and the creek connecting it with Big Chub Lake.² The Nicholases own 7/8 of the land surrounding 35-acre Dogfish Lake and all the land surrounding the creek connecting Dogfish Lake with Burgess Lake.³

The creeks connecting the two lakes are, in both cases, relatively narrow and are shallow. The depth, at one point, is eight inches in Bott4 and six inches in Nicholas.

The established law of this state is that the title of a riparian or littoral owner includes the bed to the thread or midpoint of the water,⁵ subject to a servitude for commercial navigation of ships and logs,⁶ and, where the waters are so navigable, for fishing.⁷

In the instant cases, it appears that the creeks connecting the smaller with the larger lakes are too shallow to permit the flotation of logs. The creeks are, therefore, not navigable under the law as it has heretofore been stated, and only the littoral owners have a right to use the lakes.

Prior case law also provides that although there is a navigable means of access, the littoral owner of all the land surrounding a small inland dead-end lake has the sole right to use it. Winans v Willetts, 197 Mich 512; 163 NW 993 (1917).

The only recreational use heretofore recognized by this Court as an incident of the navigational servitude is fishing.⁸

The dissenting opinion would change established rules of property law in the following respects:

(1) It would substitute a recreational-boating test for the log-flotation test of determining navigability stated in Moore v Sanborne, 2 Mich 519; 59 Am Dec 209 (1853).

(2) It would overrule the dead-end lake rule stated in Winans v Willetts.9

(3) It would enlarge the recreational use permitted in navigable waters beyond fishing to include "the right to make reasonable use of the lake’s surface” for "navigation, fishing, and recreational use”.¹⁰

It is proposed to make the foregoing changes in property law to meet "current public needs”.¹¹ It has not been demonstrated, however, that a change of the law is needed to accommodate the needs of the public or that the proposed changes will, in general, do more than, as in the instant cases, enlarge the recreational access of one group of littoral owners and users who have access to one lake and desire to have access to another lake.

The rules of property law which it is proposed to change have been fully established for over 60 years, and the underlying concepts for over 125 years. Riparian and littoral land has been purchased in reliance on these rules of law, and expenditures have been made to improve such land in the expectation, based on decisions of this Court, that the public has no right to use waters not accessible by ship or wide or deep enough for log flotation, and that, even if there is navigable access to a small inland dead-end lake, the public may not enter over the objection of the owner of the surrounding land, and that the only recreational use recognized by this Court as an incident of the navigational servitude is fishing.

The Legislature can, if it is thought to be sound public policy to enlarge public access to and the use of inland waters, pass laws providing for the enlargement of the rights of the public in those parts of the state where the Legislature finds that there is a shortage of public access to inland rivers and lakes and for the compensation of landowners affected by the enlarged servitude.

In the cases decided in other jurisdictions where a recreational-boating test was approved and applied, the body of water was of sufficient depth and width to permit its actual use for recreational purposes.¹²

The recreational-boating test, applied to a body of water of sufficient width and depth to be usable for recreational purposes, may not differ significantly from the log-flotation test. Adoption of the recreational-boating test, in such a case, might not significantly change or enlarge the servitude imposed by the log-flotation test. In the instant cases, however, the watercourses connecting the smaller with the larger lakes are not of sufficient depth to be used for recreational purposes. There is more water in a wash basin and considerably more in a bathtub than the eight inches in Bott and the six inches in Nicholas at the shallowest points.

What is here sought is not a recreational use of the intervening watercourses, but rather use of them as a means of passage to a body of water which can then be used for recreational purposes. This contrasts with the navigational servitude for the passage of ships and logs, which arose only if the waterway was of sufficient width and depth to permit its use for the commercial purpose thought to justify the servitude. Because the intervening watercourses in the instant cases are not of sufficient width and depth to be used for recreation, subjecting those watercourses to an enlarged servitude cannot be justified on the premise that there is a public need to use the watercourses for recreation in the same sense that there was a public need to use the rivers, lakes, and the larger streams for commercial navigation of ships and logs.

If it is thought that the needs of littoral owners or of the public having access to one navigable lake¹³ for recreation on a nearby navigable lake justifies creation by judicial pronouncement of a right of passage between the lakes, it should make no difference whether the intervening waterway can be traversed by canoe or a twig or, indeed, whether there is only a trickle of water or, perhaps, even no water at all. Since the rationale of the proposed right of passage does not require that the intervening waterway be actually usable for recreation, the rationale would justify a further expansion to meet perceived public needs and the creation by judicial pronouncement of a right of passage or portage along a trickle of water, a desiccated gully, or other dry land between nearby navigable lakes.

The precept that a servitude will not be extended beyond the purpose for which it was granted explains the holding in Winans that a small inland dead-end lake is not open to the public, although there is a navigable means of access, if all the surrounding land is in unified ownership. In such a case, no ship can dock, and logs cannot be floated to or from the land without the permission of the owner. Where the owner objects, no use can be made of a right of passage, and, hence, there is no servitude for navigation although there is a navigable means of access to the dead-end lake.

Riparian and littoral owners have the right to share the reasonable use of the waters,¹⁴ but the rights of the public as an incident of the navigational servitude are not coextensive with the rights of riparian and littoral owners. While this Court, in Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926), and Attorney General ex rel Director of Conservation v Taggart, 306 Mich 432; 11 NW2d 193 (1943), recognized fishing as an incident of the navigational servitude in inland rivers and lakes, it has held that fowling and hunting is not,¹⁵ and that the ice belongs to riparian and littoral owners.¹⁶

This Court has not been called upon to decide whether, and the extent to which, boating, as such,¹⁷ and other recreational uses are incidents of the navigational servitude and whether a distinction should be drawn in that regard between (i) waters in which riparian or littoral owners do not own the bed (the Great Lakes), (ii) waters in which they own the bed and which are navigable in fact (by ship), (iii) waters in which they own the bed and which are qualifiedly navigable (by log flotation), and (iv) assuming adoption of a recreational- boating test, large and small inland rivers and lakes.

Fishing is a quiet sport. General boating and water recreation can, however, be intrusive and jarring.

Even if this Court decides to expand upon Moore v Sanborne by substituting a recreational-boating test for the log-flotation test, and to overrule Win-ans concerning small inland dead-end lakes, thereby enlarging fishing rights in waters heretofore private because the means of access thereto is not log-floatable or the lake dead ends, it should not assume that, but separately consider when the issue is presented and argued whether, the case has been made to allow general boating and water recreation, as an incident of the navigational servitude, by persons other than riparian and littoral owners on inland waters heretofore inaccessible under established rules of property law.

I

The recreational-boating test is characterized in the dissenting opinion as a natural outgrowth of the rationale of Moore v Sanborne, where this Court expanded the common-law rule that waterways usable by ships in commerce are navigable, to include waterways capable of floating logs or timber.¹⁸

Moore does not support the claim that public needs other than for commercial use justify expansion of the servitude. In adopting the log-flotation test, Moore advanced the same interests — encouragement of commerce and industry — as had been encouraged when England expanded the concept of navigability to include inland waters capable of serving as public highways. Moore is replete with references to "valuable floatage” and the "necessities of trade and commerce”, and of the need to use the rivers and streams to develop forest and mineral wealth.¹⁹

The navigable-in-fact commercial shipping test antedating Moore rested on the concept that com mercial needs justified public use of inland waters. Moore, drawing on that concept, recognized that Michigan’s waterways could be put to commercial uses other than ferrying goods by ship. The log-flotation test reflected this differing commercial reality and a commonly accepted public need.²⁰ The rationale remained unchanged; navigability turned on commercial use.²¹

Collins and Taggart hold only that the public may fish in streams found navigable under the rule of Moore v Sanborne. Collins and Taggart voiced no dissatisfaction with the log-flotation test, and applied that test to determine the navigability of the streams in question.

II

Prior to Winans, this Court had held in Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916), that a lake entirely surrounded by private property was not navigable. Giddings reasoned, on the basis of the rationale of Moore v Sanborne, that a lake unconnected to other waterways could not form part of an aquatic highway for "commerce, trade, and travel * * * by the usual and ordinary modes of navigation” and that thus there was no justification for a navigational servitude.

Although Winans did not elaborate on the reasons for decision, its conclusion is consistent with the rationale of Giddings and Moore.22 The ratio nale for creating a servitude for public access to inland waters is for use as highways of commerce. Highways must begin and end. No businessman would guide a ship or logs through waterways without a port of call. A dead-end lake surrounded by property whose owner will not permit a boat to dock cannot be used as a highway.²³ As noted in Giddings, p 325, "[i]t is difficult to conceive of a highway beginning, extending its whole length, and ending, in the interior of the private estate of a single owner.”²⁴

The public-trust doctrine applies only to navigable waters and not to all waters of the state.²⁵ The public trust does not attach to lakes unconnected to other waterways or to lakes with only one inlet or outlet held in Winans not to be navigable. In Taggart, p 443, the Court sought to allay concern about the scope of the holding:

"The instant case does not in any way affect very small trout streams on private property which have not been used by the public for logging or for boating; Burroughs v Whitwam, 59 Mich 279; 26 NW 491 (1886);[²⁶] nor does it cover private lakes and ponds owned by the abutting property owners. As to such bodies of water, the riparian owner has complete control.”

III

It is said that the log-flotation test is an ana chronism and is difficult to administer.²⁷ When this Court examines the need for a change of law, it focuses on whether the proposed change is consonant with widely shared societal values, fairly treats those who have relied on past law, and is appropriate for judicial implementation.²⁸

A

It is asserted that the recreational-boating test will meet a public need for access to recreational waters. Even if one accepts the premise that public need justifies such a change in the law, the public’s need for expanded recreational uses stands before this Court as a bare, undocumented claim without support in the record or in any materials to which our attention has been directed.

It has yet to be shown that the lakes, rivers, and streams heretofore opened to the public are not adequate to meet public needs.²⁹ Nor is there evidence that a recreational-boating test would significantly increase the recreational opportunities of those who are unable to use the present waterways. The number of private waters which the recreational-boating test would make available, and whether those waters would become accessible to many persons now inadequately served, is unknown.³⁰

The argument based on public need assumes that recreational values should be given paramount consideration and makes no attempt to consider competing public values. Recreational use has a cost. The inland waters aid the nesting of wildfowl and the propagation of aquatic life.³¹ An expansion of public use would also affect the communities where the waters are located.

The importance that society attaches to the various public values, like the importance that society attaches to the need for expanded recreational uses, cannot be gauged by this Court with accuracy. A convincing demonstration has yet to be made that the recreational-boating test implements a widely shared public value that should predominate over competing public values. An enduring consensus has not emerged favoring the proposed course of action:

"As law embodies beliefs that have triumphed in the battle of ideas and then have translated themselves into action, while there still is doubt, while opposite convictions still keep a battle-front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field.” Holmes, "Law and the Court”, in Collected Legal Papers, pp 294-295 (1920).

B

Our attention has been directed to "growing numbers of states”³² that have reportedly adopted a recreational-boating test.

Some of the decisions cited as adopting this test allow evidence of suitability for recreational boating to be considered together with other evidence in deciding whether a waterway is fit for commercial use, and cannot properly be read as holding that waterways fit solely for recreational use will be deemed navigable.³³

A number of the decisions neither refer to the recreational-boating test directly, nor can one infer from reading the opinions that it has been applied sub silentio to produce findings of navigability.³⁴

The case most frequently cited as authority for the recreational-boating test, Lamprey v State, 52 Minn 181; 53 NW 1139 (1893), endorses the test in dictum; and subsequent Minnesota decisions have taken pains to point out that this dictum has no precedential value.³⁵

Six states have adopted the recreational-boating test directly or de facto. In three, the recreational-boating test is not so much an outgrowth of com mon-law method as it is of either a constitutional or statutory commitment to public access to inland waters.³⁶

Turning to the three states that have adopted a recreational-boating test as a matter of judicial decision,³⁷ we note that the test has not been applied to provide the public with access to narrow, shallow streams, themselves unfit for meaningful recreation.³⁸ The stated purpose of the recre ational-boating test is to identify waterways fit for recreational use.³⁹

The creeks connecting Linton and Big Chub Lakes and Dogfish and Burgess Lakes are narrow and shallow. At many spots, less water is to be found than in a bathtub. They are narrow, and pleasure boats can be steered through them only with difficulty. While there are those who would like to use these creeks to reach Linton or Dogfish Lakes, the creeks are not themselves suitable for recreational canoeing or boating.

C

Even were it granted that a need for expanded public recreational uses is a value that has hardened into social consensus, we cannot ignore the conflict with another well-recognized norm, the unfairness of eliminating a property right without compensation.

This Court has previously declared that stare decisis is to be strictly observed where past deci sions establish "rules of property” that induce extensive reliance.⁴⁰

The justification for this rule is not to be found in rigid fidelity to precedent, but conscience. The judiciary must accept responsibility for its actions. Judicial "rules of property” create value, and the passage of time induces a belief in their stability that generates commitments of human energy and capital.

The proposed changes in law would not have a purely theoretical effect. It is said that adoption of the recreational-boating test will respond to the asserted increase in the public’s need for access to recreational waters and yet not produce quantitatively different results than the log-flotation test. These two propositions are irreconcilable. If the new test is adopted to meet a need which the former test is not able to satisfy, there necessarily must be some quantitative difference when the two tests are actually applied or there is no need for a new test.

Recreational boats, such as kayaks and canoes, displace far less water than logs, are highly maneuverable, and can travel through waterways unfit for floating logs to market. Michigan is a state of numerous inland waters, many of which are likely to have physical characteristics similar to those of the creeks connecting the lakes in the instant cases. Adoption of a recreational-boating test would subject many formerly private inland waters to what are in essence recreational easements.

Public access to these previously non-navigable waters will dimmish enjoyment of surrounding property. Many of those who own such property are vacationers who acquired the property for peaceful retreat. A rule which opens these waters to curious boaters and enterprising fishermen may render the property unfit as a refuge or retreat. Even if these interests are thought to be too intangible to warrant protection, it cannot be denied that some landowners have invested their savings or wealth in reliance on a long-established definition of navigability.⁴¹ It also cannot be denied that the heretofore private character of the waters adjacent to their property significantly adds to its market value.

Vacationers are not manufacturers who can pass on their losses to a large class of consumers. Techniques to safeguard past reliance on prior law such as prospective overruling are unavailable where property rights are extinguished. Prevention of this hardship could be avoided through compensation, but this Court has no thought of providing compensation to riparian or littoral owners for the enlarged servitude and the resulting reduction in amenities and economic loss.

Proponents of the recreational-boating test do not deny that its application will inflict loss on riparian or littoral owners. Nor do they deny that this loss may be significant. Instead, it is argued that the preconditions for application of the "rules of property” doctrine are not satisfied.

It is said that Michigan law is not "well-settled” in this area and hence no established property rights are destroyed by a shift to a recreational-boating test. Since Moore, the navigational servitude has only extended to waters meeting the commercial-shipping or log-flotation tests. The rule of Winans has been in force for over 60 years. The rules enunciated in Moore and Winans have been applied for over 125 and 60 years, respectively, periods long enough to give rise to a fixed conception of the public’s navigational rights.

In stating the log-flotation test of navigability the Moore Court did indeed establish a rule of navigability which varied from the English common law and the common law of many jurisdictions in the United States. In doing so, however, the Court was not overruling any binding precedent, for there was none on the issue at that early date in Michigan’s history. The Court in Moore was writing on a blank slate — we are not.

The argument is made that the present tests for navigability are not "rules of property” on the premise that the Legislature could enact a recreational-boating test without providing compensation. It is contended that there is no "taking” because the riparian or littoral owner would still possess title to the bed of the waterway, albeit qualified by the public’s enlarged right to navigate. But this Court has said that "riparian rights are property”.⁴² The view that riparian rights are property is consistent with this Court’s approach to the "taking” question. The presence or absence of title has not been dispositive. Compensation has been awarded where there has been a significant reduction in the use and enjoyment of property stemming from governmental action.⁴³ The recreational-boating test would deny riparian and littoral owners the right to exclude others, a right inherent in the concept of private property.⁴⁴ The "rules of property” doctrine is a judicial rule of fairness, not a clause in tHe constitution.

The instant cases are said to fall within the exception to the "rules of property” doctrine made by this Court in Hilt v Weber, 252 Mich 198; 233 NW 159 (1930), which is read as allowing courts to overrule decisions establishing "rules of property” that themselves disregarded precedent.

This reading of Hilt is curious. Far from displaying an insensitivity to those who rely on court-made "rules of property”, Hilt shows a high degree of concern for protecting long-standing property interests.

In Hilt, a recent holding in the Kavanaugh Cases⁴⁵ that owners adjacent to the Great Lakes hold title to land running along the meander line but not to the waters’ edge was re-examined and overruled. The Hilt opinion demonstrated at some length that the Kavanaugh Cases, decided just two years and seven years earlier, had misanalyzed prior precedent. Especially pertinent is the Court’s response to the policy arguments made by those who favored retention of the disputed land for the public:

"The doctrine of stare decisis has been invoked. The point has much force. Titles should be secure and property rights stable. Because a judicial decision may apply to past as well as to future titles and conveyances, a change in a rule of property is to be avoided where fairly possible. But where it clearly appears that a decision, especially a recent one, was wrong and continuing injustice results from it, the duty of the court to correct the error is plain. The Kavanaugh Cases were decided in the recent years in 1923 and 1928, respectively. They enumerated principles at variance with settled authority in this State and elsewhere, under which real estate transactions long had been conducted and given legal effect by courts and citizens, and themselves, disregarded the doctrine of stare decisis by overruling the Warner Case [People v Warner, 116 Mich 228; 74 NW 705], decided in 1898. The rules they stated are not as old as the rules they abrogated. When to that are added the considerations that they operated to take the title of private persons to land and transfer it to the State, without just compensation, and the rules here announced do no more than return to the private owners the land which is theirs, the doctrine of stare decisis must give way to the duty to no longer perpetuate error and injustice.” Hilt, p 223. (Emphasis supplied.)

As here, the state invoked the recreational needs of the public, arguing that they outweighed the property loss mistakenly inflicted by the Kavanaugh Cases. The Court responded:

"With much vigor and some temperature, the loss to the State of financial and recreational benefit has been urged as a reason for sustaining the Kavanaugh doctrine. It is pointed out that public control of the lake shores is necessary to insure opportunity for pleasure and health of the citizens in vacation time, to work out the definite program to attract tourists begun by the State and promising financial gain to its residents, and to conserve natural advantages for coming generations. The movement is most laudable and its benefits most desirable. The State should provide proper parks and playgrounds and camping sites and other instrumentalities for its citizens to enjoy the benefits of nature. But to do this, the State has authority to acquire land by gift, negotiation, or, if necessary, condemnation. There is no duty, power, or function of the State, whatever its claimed or real benefits, which will justify it in taking private property without compensation. The State must be honest.” Hilt, p 224.

The Court’s experience following the Kavanaugh Cases suggests that we should not casually enlarge the rights of the public at the expense of property owners who have relied on prior decisions of this Court. The Kavanaugh Cases were overruled because, among other things, they worked severe injustice and constituted a judicial "taking” without compensation.

In Hilt, this Court squarely confronted the question of the relative priority that should be given to claims of public recreational need and to claims that existing property rights should not be taken without compensation, and re-established prior precedent protective of long-standing property rights.

D

Adjudication without an evidentiary record provides no assurance that the information needed for a wise decision will surface or that the relative strength of competing societal values can be accurately measured. The Legislature has the resources to make a comprehensive inquiry into the public’s need for increased water recreation and the effect of a change in the law on existing property rights. As a majoritarian body, the Legislature can provide a forum that will attract those affected and, without fearing a loss of legitimacy, proceed to take the measure of their convictions.

The obligation to pay compensation to owners for a governmental taking will discipline legislative inquiry by assuring that the loss inflicted on private parties will be considered, and that recre ational access will be granted only if indeed highly prized. That obligation will further assure that those whose property is seized will receive fair treatment. Providing compensation will also vindicate riparian or littoral owner reliance on this Court’s past decisions.⁴⁶

Finally, legislative consideration allows a solution capable of responding to a broader range of public needs and one far more sensitive to the dislocation of private interests. A recreational-boating test would operate indiscriminately in waters both fit and unfit for recreational use. The Legislature can exercise its powers selectively, it can identify those waters most suited for recreational use, including lakes that do not have inlets or outlets,⁴⁷ and avoid unnecessary seizures. This will not only increase the likelihood of successfully meeting the public need, but prevent gratuitous economic loss.

A judicial recreational-boating test would increase the utilization of the inland waters and do nothing to protect them. Many of Michigan’s lakes are in wilderness areas, and enlarged public access might destroy their scenic beauty. Other lakes might be so attractive that they would be overutilized.⁴⁸

IV

Faced with an uncertain societal consensus, an inability to compensate riparian owners for the loss of a valuable right, and the need for a comprehensive legislative solution, we believe that this Court is not an appropriate forum for resolving the competing societal values which underlie this controversy.

We affirm in Bott and reverse in Nicholas.

Fitzgerald, C.J., and Kavanagh and Coleman, JJ., concurred with Levin, J.

Footnotes

1

The circuit court granted Bott’s motion for summary judgment, without deciding factual questions, on the authority of Michigan Conference Ass’n of Seventh-day Adventists v Natural Resources Comm, 70 Mich App 85; 245 NW2d 412 (1976), which was decided on the authority of Winans v Willetts, 197 Mich 512; 163 NW 993 (1917), discussed below.

An affidavit filed by an employee of the DNR states "there is a public access site on Big Chub Lake”. If there is a public access site (cf. McCardel v Smolen, 404 Mich 89, 96, 98; 273 NW2d 3 [1978]), then the members of the public who have access to that site have the same right to use the waters as does a littoral owner.

2

The land is located in Otsego County.

Linton Lake has no inlet and one outlet. Big Chub Lake has numerous riparian owners, and there may be a public access site.

Bott sought a declaratory judgment that Linton Lake and the creek were not navigable and were private bodies of water.

The DNR filed two affidavits opposing the motion. The first states that the creek is 240 feet long and varies in width from 100 feet to 15 feet. The affidavit indicates that the water was approximately 2 feet deep except for one point where it is 8 inches deep. The second affidavit states that the average width of the creek is 20 feet and that a small oar- and motor-propelled craft can pass through the creek without making contact with the bed or banks.

The circuit court granted Bott partial summary judgment declaring Linton Lake to be a "private lake” from which the public could be excluded, but expressed no opinion on the navigability of the creek. The Court of Appeals granted a motion to affirm on the authority of Michigan Conference Ass’n of Seventh-day Adventists v Natural Resources Comm, supra.

Our order granting leave to appeal directed the parties "to include among the issues to be briefed whether Linton Lake is a private inland lake”. 406 Mich 1006 (1979).

3

The land is located in Montcalm County.

The eastern boundary of the Nicholas property is Burgess Lake and the western boundary is Dogfish Lake. Burgess Lake is spring-fed and has one outlet, Burgess Creek. Burgess Creek is approximately 800 feet long and connects Burgess Lake with Dogfish Lake.

In 1971, to prevent their neighbors from gaining access to Dogfish Lake, the Nicholases erected a bridge across Burgess Creek. The bridge was built low to the water, and even the smallest craft was unable to pass beneath it. Despite this obstacle, the Nicholases’ neighbors continued to use Burgess Creek, pulling their boats over or portaging around the bridge.

When the bridge proved ineffective, the Nicholases filed an action for trespass against two of their neighbors, Russell McDaniel and Richard Rademacher, and asked the circuit court to declare Burgess Creek not to be navigable and to be private property and to enjoin any further passage on it.

The defendants sought assistance from the DNR. Other property owners on Burgess Lake had made similar requests, and a recent Court of Appeals decision, Attorney General ex rel Director of the Dep’t of Natural Resources v Hallden, 51 Mich App 176; 214 NW2d 856 (1974), had adopted the recreational-boating test. The DNR filed an action against the Nicholases, and the two actions were consolidated.

There is no public access site on Burgess Lake.

A surveyor for the DNR testified that Burgess Creek varies in width from 52 feet to 7-1/2 feet, and that the depth of Burgess Creek varies from 14.4 inches to 6 inches with frequent readings pf 6, 8 and 11 inches. Measurements of the sediment in Burgess Creek showed that it varies in thickness from 1 to 2-1/2 feet. Wading was difficult, if not impossible. Other witnesses corroborated his testimony, stating that a person who tried to walk in Burgess Creek would sink into the sediment, and that on one occasion a rowboat had been stuck in it.

The evidence showed that Burgess Creek had never been deep enough to support the flotation of logs. Witnesses presented by both parties chronicled the physical transformation of Burgess Creek from the early 1950’s to the present. At the beginning of this period, Burgess Creek was impassable because it was covered by heavy brush and clogged by numerous trees. In the late 1950’s and the early 1960’s, the character of the stream began to change as more riparian owners on Burgess Lake began to use it. At the time, those who desired to traverse Burgess Creek had to lie down in their boats to avoid overhanging trees and to rock their boats over trees lying in the creek bed. As the years passed, many of these trees were removed by those who desired to travel without hindrance. A number of witnesses testified that, at present, Burgess Creek was so shallow that a boat could not float freely on it. At some point during the journey, a person had to get out of his boat and push or pull it along.

A DNR employee testified, however, that he had floated a canoe through Burgess Creek, although he conceded that at one point he may have been forced to touch bottom to avoid a tree lying in the creek. He acknowledged that in 1971 the DNR had issued an opinion declaring that Burgess Creek was not navigable.

The circuit court found against the Nicholases on the authority of the Court of Appeals decision in Attorney General ex rel Director of the Dep’t of Natural Resources v Hallden, supra, and the testimony that recreational boats might pass through Burgess Creek. The Court declared Burgess Creek to be navigable, ordered the footbridge removed, and enjoined further obstruction of public access.

The Court of Appeals affirmed. It said that the dead-end lake cases, Michigan Conference Ass’n of Seventh-day Adventists v Natural Resources Comm, supra, and Winans v Willetts, supra, are "of limited applicability” to the case at hand. It stated that Burgess Creek "is valuable for travel by boat or canoe between” Burgess Lake and Dogfish Lake and that the circuit court was therefore "correct” in finding it to be navigable. The Court had, earlier in its opinion, adverted to Attorney General ex rel Director of the Dep’t of Natural Resources v Hallden, and had observed that the circuit court found that Burgess Creek was navigable on the authority of that decision, but this panel of the Court of Appeals did not rest its decision thereon. Nicholas v McDaniel, 88 Mich App 120; 276 NW2d 538 (1979).

Our order granting leave to appeal directed the parties to include among the issues to be briefed: (1) "what is the legal test and measure of whether a body of water is 'navigable’ so as to impose a public trust on such body”; (2) "did the Court of Appeals properly determine that Burgess Creek was 'navigable’?” 406 Mich 1007 (1979).

4

As previously noted (see fn 1), Bott was decided on a- motion for summary judgment without deciding factual issues. The affidavit of an employee of the DNR states that the creek has a depth of approximately two feet except under the bridge where it has a depth of approximately eight inches, and that the eight-inch depth is the result of the placement of fill for purposes of creating bridge approaches and for road surface, such fill having eroded and sifted through the bridge deck into the channel.

5

See Lorman v Benson, 8 Mich 18; 77 Am Dec 435 (1860).

6

See Moore v Sanborne, 2 Mich 519; 59 Am Dec 209 (1853).

7

See Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926); Attorney General ex rel Director of Conservation v Taggart, 306 Mich 432; 11 NW2d 193 (1943); Kerley v Wolfe, 349 Mich 350; 84 NW2d 748 (1957).

8

See fns 15 and 16.

In McCardel v Smolen, 404 Mich 89, 96; 273 NW2d 3 (1978), the public had access to the lake from the dedicated streets, and the right to use the lake as a littoral owner. This Court noted that the Attorney General claimed that the general public had the right to use the lake and the land lying beneath the waters "for the purposes of boating, swimming, wading and fishing, which he asserts is an incident of the right of navigation”. (Emphasis supplied.)

9

Post, pp 110, 111.

10

Post, pp 110, 123.

11

Post, p 111.

12

See fn 39 and the accompanying text.

13

The term "navigable lake” is here used to convey the thought that the waters are wide and deep enough to be "qualifiedly navigable” (log flotation) and not in the technical sense of being open to the public.

14

McCardel v Smolen, 404 Mich 89; 273 NW2d 3 (1978); 78 Am Jur 2d, Waters, § 263, p 707.

15

See fn 7 and the accompanying text.

This Court has not extended the scope of the navigational servitude to include hunting, trapping, and fowling. In Sterling v Jackson, 69 Mich 488, 497, 501; 37 NW 845 (1888), the Court said:

"[Defendant] had no right to construct a 'hide’, nor to anchor his decoys for the purpose of attracting ducks within reach of his shotgun. Such acts are not incident to navigation, and in doing them defendant was not exercising the implied license to navigate the waters of the bay, but they were an abuse of such license.

"The public had a right to use it as a public highway, but every other beneficial use and enjoyment belonged to the owner of the soil.”

In Ainsworth v Munoskong Hunting & Fishing Club, 159 Mich 61, 64-65; 123 NW 802 (1909), the Court said:

"The sole question now before us is whether Munoskong Bay is included in the waters of Lake Huron or whether it borders on the river. If the former, the defendant has no exclusive rights of hunting and fishing, and the decree of the court is right. If the latter, then the defendant owns the subaqueous land to the middle thread of the river, and the decree is wrong.”

The Court held that a riparian owner could bar the public from hunting and fishing. This, of course, was before Collins and Taggart extended the navigational servitude to include fishing.

In Johnson v Burghorn, 212 Mich 19, 29; 179 NW 225 (1920), the Court said:

"[DJefendant had no right to anchor his traps in the submerged lands, or to cut holes in the ice and fix stakes thereto, holding traps.”

And in Sewers v Hacklander, 219 Mich 143, 153; 188 NW 547 (1922), the Court said:

"Hunting and trapping are not incidents of the right of navigation.” See Hall v Wantz, 336 Mich 112; 57 NW2d 462 (1953).

16

See Lorman v Benson, 8 Mich 18; 77 Am Dec 435 (1860); People’s Ice Co v The Steamer "Excelsior”, 44 Mich 229; 6 NW 636 (1880); Clute v Fisher, 65 Mich 48; 31 NW 614 (1887); Bigelow v Shaw, 65 Mich 341; 32 NW 800 (1887); Grand Rapids Ice & Coal Co v South Grand Rapids Ice & Coal Co, 102 Mich 227; 60 NW 681 (1894).

17

In Kerley v Wolfe, 349 Mich 350, 356; 84 NW2d 748 (1957), the dispute, again, involved fishing rights. In describing the holding in Collins, where the fishermen waded into the water (as in Taggart), the Court said:

"So long as boatable waters stand or flow in the upper reaches of this inland lake, people having lawful access to such waters may boat upon and fish in the same, provided they trespass not on fast and privately held lands (Collins, p 49 of report).” (Emphasis supplied.)

18

Within broad federal constitutional limits, the state courts have the common-law power to choose the standards governing such determinations. See Fox River Paper Co v Railroad Comm of Wisconsin, 274 US 651, 655; 47 S Ct 669; 71 L Ed 1279 (1927); Brewer-Elliott Oil & Gas Co v United States, 260 US 77, 89; 43 S Ct 60; 67 L Ed 140 (1922); Wear v Kansas ex rel Brewster, 245 US 154, 158; 38 S Ct 55; 62 L Ed 214 (1917); Donnelly v United States, 228 US 243, 262; 33 S Ct 449; 57 L Ed 820 (1913); Southern Idaho Fish & Game Ass’n v Picabo Livestock, Inc, 96 Idaho 360; 528 P2d 1295 (1974); State v Bunkowski, 88 Nev 623, 628; 503 P2d 1231 (1972); 1 Clark, Waters and Water Rights, § 37.4(A), pp 212-213.

19

"The servitude of the public interest depends rather upon the purpose for which the public requires the use of its streams, than upon any particular mode of use — and hence, in a region where the principal business is lumbering, or the pursuit of any particular branch of manufacturing or trade, the public claim to a right of passage along its streams must depend upon their capacity for the use to which they can be made subservient. In one instance, perhaps, boats can only be used proñtably, from the nature of the product to be transported — whilst, in another they would be utterly useless. Upon many of our streams, although of sufficient capacity for navigation by boats they are never seen — whilst rafts of lumber of immense value, and mill logs which are counted by thousands, are annually floated along them to market.

"We have a large territory undeveloped, rich in forests and in mineral wealth — washed by vast bodies of water upon three sides, and threaded by innumerable streams which are capable of navigation, many of which are, and many others of which may be made serviceable in developing its resources — and with a commerce already established, rivaling in extent, that of some of the Atlantic States, and rapidly growing under the influence of increasing population, settlements, and wealth, it is of the first importance that the rights of the public be recognized, to the free use of all streams susceptible of any valuable floatage. In this commerce, lumbering interests sustain, and will continue to sustain an important part, and their success depends to a vast, if not entire extent, upon this principle. Indeed, a moment’s reflection will convince us that a liberal application and retention of the common law rule, and its adaptation to our condition and wants, lies at the bottom of this branch of our trade.” Moore v Sanborne, 2 Mich 519, 525-526, 524; 59 Am Dec 209 (1853).

20

For a discussion of the history of water transportation in Michigan, see Bald, Michigan in Four Centuries (rev ed), 151-152, 243-247 (New York: Harper, 1961); Dunbar, Michigan: A History of the Wolverine State, 245-246, 358-360 (Grand Rapids: Eerdmans, 1965); Fuller, Economic and Social Beginnings of Michigan, 22-33, 96-99, 127-138 (Lansing: Wynkoop-Hallenbeck-Crawford, 1916).

21

In Burroughs v Whitwam, 59 Mich 279; 26 NW 491 (1886), this Court held that public use of a river for fishing and pleasure-boating has no tendency to prove navigability.

22

In Moore and subsequent decisions, this Court referred to waters deemed navigable as public highways or thoroughfares; in Moore the Court said that the question to be decided was "is Pine River a public highway”. 2 Mich 521.

In Grand Rapids Booming Co v Jarvis, 30 Mich 308, 319 (1874), this Court indicated that only those rights incident to and reasonably necessary to exercise the right to float logs could be exercised by the public in waters merely floatable.

"This river, so far as it is navigable for vessels, or floatable for logs, is but a public highway by water; the right to navigate the one or float the other is but a right of passage, including only such rights as are incident to that right and necessary to render it reasonably available.” (Emphasis in original.)

A year later, in a case where the question was whether a riparian owner could artificially increase the flow of a river to float logs to market, this Court said that waters found navigable under the rule of Moore were merely periodic highways and could not be made floatable at other times because to do so would appropriate valuable riparian rights of the downstream riparian owners. Thunder Bay River Booming Co v Speechly, 31 Mich 336 (1875). In explaining the rule set forth in Moore and in cases from other jurisdictions the Court said:

"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 right 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 [Flat River] Booming Co, 27 Mich 533 (1873). 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 without compensation to parties injured, is at war with all our ideas of property and of constitutional rights.”

Similarly, see Grand Rapids v Powers, 89 Mich 94, 111; 50 NW 661 (1891).

The nature of the public servitude set forth in the early cases was expanded by Collins. In Collins, this Court held that a stream formerly used for floating logs did not lose its character as a navigable stream by a period of nonuse because it is the capacity of the stream and not the frequency of its use which determines its navigability.

It is apparent that at first the servitude was considered limited to the commercial flotation of logs and all activity incident thereto and existed only during the periods when such flotation could be carried on. Collins expanded the permissible use of the public as an incident of the navigational servitude to include fishing and declared the servitude to be permanent, but neither that decision nor Taggart declared a stream formerly non-navigable under Moore to be navigable. The only change was in the degree of public use permitted.

After Giddings, this Court declared other lakes without either an outlet or an inlet to be non-navigable. Pigorsh v Fahner, 386 Mich 508; 194 NW2d 343 (1972); Putnam v Kinney, 248 Mich 410; 227 NW 741 (1929). The reasoning in these cases is the same as in Giddings, and consideration of them sheds no further light on Winans.

We are told that there are few "wholly” private lakes from which the public may be excluded. For on lakes having more than one littoral owner, all share the surface of the lake as a common, Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946); Bauman v Barendregt, 251 Mich 67; 231 NW 70 (1930), and littoral owners have the right to license public use of their waters, Beach v Hayner, 207 Mich 93, 98; 173 NW 487 (1919); Snively v Jaber, 48 Wash 2d 815; 296 P2d 1015 (1956).

The relevance of these rules to the present case is unclear. The first group of cases involves the relative rights of private parties inter se and has no relation to the question of the permissible extent of public use. The second group of cases demonstrates that the public cannot win access to private lakes without littoral consent, and thus highlights the strength of littoral property rights, not the weakness.

23

The holding in Winans is limited to a dead-end lake and does not include a lake surrounded by the property of a single owner which has an inlet and outlet leading to land where boats might lawfully dock. In such a case, the lake could serve a useful commercial function. See Hall v Wantz, 336 Mich 112, 113; 57 NW2d 462 (1953).

24

A passage from this Court’s opinion in Kerley v Wolfe, 349 Mich 350, 356; 84 NW2d 748 (1957), is cited:

"So long as [the navigable] waters stand or flow in the upper reaches of this inland lake, people having lawful access to such waters may boat upon and fish in the same, provided they trespass not on fast and privately held lands”. (Emphasis supplied.)

In that case, defendants erected a fence across the neck of a lake, thereby excluding riparian owners at the lower end of the lake from passing to its upper end. The question presented was whether the enclosed area was navigable in fact. After reviewing the evidence, this Court found that the trial court’s factual findings and legal conclusions were not erroneous. As riparian owners, there was no question that plaintiffs had "lawful access” to the water. The issue posed in Winans, whether the public should have "lawful access” to dead-end lakes, was not considered.

25

Collins, in holding that there was a right to fish in navigable waters, declared that all navigable waters, even qualiñedly navigable ones, were impressed with a public trust.

Taggart, in turn, followed Collins. Taggart, p 441, acknowledged that prior to Collins a number of cases "distinguished between streams navigable for boats and those floatable for logs and, with respect to the latter, gave the public an easement of passage for the purpose of floatage and only such other rights as are incident thereto”. This approach — limiting public recreational uses to strictly navigable streams — was rejected by Taggart because it believed that Collins stated "sound law and a public policy appropriate to * * * this State”. Additionally, the Court noted that the stream in question, which "had been used for floating logs when the water was high ["3 to 4 feet”] because of spring freshets or a heavy rainy season”, was stocked at state expense with the riparian owners’ knowledge, and although the Court did not go so far as finding that this created an estoppel against the property owners it obviously was influenced by the equities which this point raised.

26

See fn 21.

27

The impracticability of the log-flotation test, like the public need for enlarged access to recreational waters, is more assumed than shown. In many cases, there will undoubtedly be evidence whether a waterway was used for floating logs at an earlier time. Such evidence might justify a determination of navigability. If no reliable history is available, a litigant could produce evidence in at least two other ways. He might obtain a number of large logs and float them down the stream in question. Alternatively, he could establish navigability by surveying the body of water as the DNR did in the instant cases and comparing its dimensions (width, depth, rate of flow) to the reported dimensions of streams already found to be navigable. Comparison as well as other evidence would allow a court to make a sound determination without changing the test of navigability. Neither of these methods is so burdensome as to be impractical and would produce results closely approximating the historical test.

Further, it is unclear how frequently determinations of navigability will need to be made in the future. The navigability of many of the rivers, lakes, and streams of this state has already been judicially determined.

28

Compare Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); Womack v Buchhorn, 384 Mich 718; 187 NW2d 218 (1971), with Dolby v State Highway Comm’r, 283 Mich 609; 278 NW 694; 117 ALR 538 (1938). See, generally, Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass: Harvard Univ Press, 1982); Wellington, The Nature of Judicial Review, 91 Yale L J 486 (1982); Komesar, In Search of a General Approach to Legal Analysis: A Comparative Institutional Alternative, 79 Mich L Rev 1350 (1981).

29

A review of cases from other jurisdictions indicates that the log-flotation test, as applied in Michigan, permits greater public access to recreational waters than in most other states. That Michigan is among the more liberal states in permitting public access appears from the reliance that other jurisdictions place on our cases in their decisions permitting public access in their own waters. See, e.g., People ex rel Baker v Mack, 19 Cal App 3d 1040; 97 Cal Rptr 448 (1971); State v Korrer, 127 Minn 60; 148 NW 617; 148 NW 1095 (1914); Elder v Delcour, 364 Mo 835; 269 SW2d 17 (1954); Muench v Public Service Comm, 261 Wis 492; 53 NW2d 514; 55 NW2d 40 (1952); Day v Armstrong, 362 P2d 137 (Wy, 1961).

Michigan is blessed with far more inland water than most states, as well as access to the Great Lakes. One must question whether there is an overriding need justifying adoption of a new test of navigability.

No facts have been set forth in the record, the briefs, or in the dissenting opinion regarding the extent of recreational waters already available to the public, the number of people currently using these resources, the burden placed on the available waters by those using them, the number of formerly private waters which would become public under a recreational-boating test, the extent the public will benefit from adopting a new rule, and the ecological effect of opening these small, formerly private waters and their surroundings to the public.

30

In Nicholas, the several waterways are surrounded by land owned by the contending parties and others. Application of the recreational-boating test will not open up these waterways to public use. Unless licenses are granted to the public, it will simply convey, what amounts to a joint tenancy to private landowners who already have access to one lake and no demonstrated need for access to another.

31

See In re Martiny Lakes Project, 381 Mich 180; 160 NW2d 909 (1968).

32

Post, p 111.

33

See State v Twiford, 136 NC 603; 48 SE 586 (1904); Fairchild v Kraemer, 11 AD2d 232; 204 NYS2d 823 (1960); St Lawrence Shores, Inc v State, 60 Misc 2d 74; 302 NYS2d 606 (1969).

34

See Elder v Delcour, 364 Mo 835; 269 SW2d 17 (1954) (river had been used in the past to transport logs); Curry v Hill, 460 P2d 933 (Okla, 1969) (river 150 to 200 feet wide and had been used to float logs); Willow River Club v Wade, 100 Wis 86; 76 NW 273 (1898) (river 200 feet wide and 8 to 10 feet deep).

35

See State v Adams, 251 Minn 521, 557; 89 NW2d 661 (1957); State v Bollenbach, 241 Minn 103, 118; 63 NW2d 278 (1954).

In Lamprey, pp 198, 200, the Court held that where a meandered lake is non-navigable in fact the patentee bordering it takes to the center of the lake; whereas, if the lake is navigable in fact the riparian owner only takes to the water’s edge, but has a right to all lands accreted or revealed by reliction. Thus, the private owner owned the bed in question.

Acknowledging that it had said what was "sufficient for the purposes of the present case”, the Court went on to discuss the concept of navigability in broad terms, in essence stating that all inland lakes in Minnesota capable of any beneficial public use would be considered navigable "so long as these lakes are capable of use for boating, even for pleasure”.

Although the discussion of the right to public access in Lamprey was dictum, a number of courts have relied on passages from Lamprey to justify either their adoption of a more liberal rule of public access or their own dicta. Indeed, we find that in one of the two jurisdictions where appellate courts have explicitly adopted a recreational-boating test the initial case so holding relied in part on Lamprey, and the second jurisdiction subsequently relied in part on the first.

36

See Luscher v Reynolds, 153 Or 625; 56 P2d 1158 (1936) (decision rested on state constitution’s "commerce clause”); Muench v Public Service Comm, 261 Wis 492; 53 NW2d 514; 55 NW2d 40 (1952) (water power law held to require all waters "navigable in fact for any purpose whatsoever” be free of private obstruction); Diana Shooting Club v Husting, 156 Wis 261; 145 NW 816 (1914) (legislative enactment declares particular waterway in dispute navigable); Day v Armstrong, 362 P2d 137 (Wy, 1961) (state constitution makes all inland waters property of the state).

37

See Southern Idaho Fish & Game Ass’n v Picabo Livestock, Inc, 96 Idaho 360; 528 P2d 1295 (1974); Mentor Harbor Yachting Club v Mentor Lagoons, Inc, 170 Ohio St 193; 163 NE2d 373 (1959); Coleman v Schaeffer, 163 Ohio St 202; 126 NE2d 444 (1955); People v Sweetser, 72 Cal App 3d 278; 140 Cal Rptr 82 (1977); Hitchings v Del Rio Woods Recreation & Park Dist, 55 Cal App 3d 560; 127 Cal Rptr 830 (1976); People ex rel Baker v Mack, 19 Cal App 3d 1040; 97 Cal Rptr 448 (1971).

38

In the Idaho case, the river declared navigable was "renowned as one of the best fly fishing streams in the United States”. Southern Idaho Fish & Game Ass’n v Picabo Livestock, Inc, 96 Idaho 360; 528 P2d 1295 (1974).

In the two Ohio cases, the rivers found navigable both flowed into Lake Erie and were capable of carrying boats of considerable size. Mentor Harbor Yachting Club v Mentor Lagoons, Inc, 170 Ohio St 193; 163 NE2d 373 (1959); Coleman v Schaeffer, 163 Ohio St 202; 126 NE2d 444 (1955). Indeed, Coleman, pp 204-205, distinguished an earlier case which held non-navigable two "shallow streams having a varying depth of but two tenths of a foot in some places” because such streams unlike the one in the present case were "hardly navigable water”.

The three California appellate decisions concerned the following waterways:

1) A river that had been used to float logs in the past which varied in width from 107 feet to 292 feet and varied in depth from 2.7 feet to 17 feet. People v Sweetser, 72 Cal App 3d 278; 140 Cal Rptr 82 (1977).

2) An 11-mile portion of a river navigated during nine months of the year by "small flat-bottomed power boats, rowboats, kayaks and canoes”. Hitchings v Del Rio Woods Recreation & Park Dist, 55 Cal App 3d 560; 127 Cal Rptr 830 (1976).

3) A river that according to uncontradicted testimony was usable for pleasure boating the entire year around. People ex rel Baker v Mack, 19 Cal App 3d 1040; 97 Cal Rptr 448 (1978).

In Mack, a California Court of Appeals declared that the public has a right of access and may exercise the incidents of navigation on any waters capable of being navigated by oar- or motor-propelled small craft. The river in Mack had been used to float logs and was a large river, varying in width from 107 feet to 292 feet and varying in depth from 2.7 feet to 17 feet. Certainly, under Michigan law the river would have been held navigable.

39

Flotation was evidence of fitness for commercial use but was not dispositive. It was not enough to float a ship or a log. Rather, it was necessary to show that once afloat the ship or log could be put to valuable commercial use:

“It is not * * * every small creek, in which a fishing skiff or gunning canoe can be made to float * * *. But in order to * * * give it the character of a navigable stream, * * * it must be generally and commonly useful to some purpose of trade”. Rowe v Granite Bridge Corp, 38 Mass 344, 347 (1838), quoted approvingly in In re Martiny Lakes Project, 381 Mich 180, 194, fn 7; 160 NW2d 909 (1968).

40

See Lewis v Sheldon, 103 Mich 102; 61 NW 269 (1894); Hilt v Weber, 252 Mich 198; 233 NW 159 (1930).

41

See Waite, The Dilemma of Water Recreation and a Suggested Solution, 1958 Wis L Rev 542, 545.

42

Hilt v Weber, 252 Mich 198, 225; 233 NW 159 (1930).

In Kaiser Aetna v United States, 444 US 164, 179-180; 100 S Ct 383; 62 L Ed 2d 332 (1979), where it was held that the federal navigational servitude did not extend to a formerly land-locked Hawaiian marina connected to the Pacific Ocean by an artificial, man-made channel, and where the United States Supreme Court concluded that the government must pay compensation before the public could be granted access to defendant’s land, the Court said:

"In this case, we hold that the 'right to exclude’, so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation. This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioners’ private property; rather the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina.”

43

This Court has construed the "taking” clause of the Michigan Constitution to protect property rights. One of the early cases addressing the "taking” question observed:

" 'The constitutional provision is adopted for the protection of and security to the rights of the individual as against the government’, and the term 'taking’ should not be used in an unreasonable or narrow sense. It should not be limited to the absolute conversion of property, and applied to land only; but it should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto.” Pearsall v Eaton County Supervisors, 74 Mich 558, 561; 42 NW 77 (1889).

This approach to determining whether a "taking” has occurred has been applied by this Court in a variety of circumstances, including elimination of access to property: Ranson v Sault Ste Marie, 143 Mich 661; 107 NW 439 (1906); Morris v Sault Ste Marie, 143 Mich 672; 107 NW 443 (1906); Big Rapids v Big Rapids Furniture Mfg Co, 210 Mich 158, 175; 177 NW 284 (1920); diminution in value caused by an urban renewal project: In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965); zoning: Grand Trunk W R Co v Detroit, 326 Mich 387; 40 NW2d 195 (1949); Long v Highland Park, 329 Mich 146; 45 NW2d 10 (1950); and damage to property caused by a nuisance maintained by the state: Buckeye Union Fire Ins Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970).

This Court’s decisions, as well as those of other jurisdictions, indicate that a physical intrusion on the property itself is not required for a "taking” to have occurred; see, e.g., Allen v Detroit, 167 Mich 464; 133 NW 317 (1911); Johnstone v Detroit, G H & M R Co, 245 Mich 65; 222 NW 325 (1928); Tomazewski v Palmer Bee Co, 223 Mich 565; 194 NW 571 (1923); United States v Causby, 328 US 256; 66 S Ct 1062; 90 L Ed 1206 (1946); Griggs v Allegheny County, 369 US 84; 82 S Ct 531; 7 L Ed 2d 585 (1962); and that a reduction in value caused by government action is a strong indication of a "taking”. See, e.g., In re Urban Renewal, Elmwood Park Project, supra; Grand Trunk W R Co v Detroit, supra; Long v Highland Park, supra.

44

In responding to an argument that a "taking” had not occurred by use of another’s land because the owner retained title, this Court said:

"And among the incidents of property in land, or anything else, is not the right to enjoy its beneficial use, and so far to control it as to exclude others from that use, the most beneficial, the one most real and practicable idea of property, of which it is a much greater wrong to deprive a man, than the mere abstract idea of property without incidents? The use, or the right to control it with reference to its use, constitutes, in fact, all that is beneficial in ownership, except the right to dispose of it; and this latter right or incident would be rendered barren and worthless, stripped of the right to the use.” (Emphasis supplied.) Grand Rapids Booming Co v Jarvis, 30 Mich 308, 320-321 (1874).

45

Kavanaugh v Rabior, 222 Mich 68; 192 NW 623 (1923), and Kavanaugh v Baird, 241 Mich 240; 217 NW 2 (1928).

46

In the combined cases of Gion v Santa Cruz and Dietz v King, 2 Cal 3d 29; 84 Cal Rptr 162; 465 P2d 50 (1970), the Supreme Court of California recognized a doctrine of implied dedication which permitted the conversion of private beaches into public recreational areas.

One commentator who investigated the aftermath of the 1970 implied-dedication cases found that owners had "rushed to install barbed wire fences and hire guards” to protect their beach areas, and that some owners had even dynamited trails leading to their beaches. See O’Flaherty, This Land Is My Land: The Doctrine of Implied Dedication and Its Application to California Beaches, 44 S Cal L Rev 1092, 1095 (1971).

47

The public would, under the recreational-boating test, gain entrance to a small private lake if any recreational boat could float through an inlet or an outlet leading to that lake. Larger lakes totally surrounded by private land and more suitable for recreational use would remain closed.

Once one accepts the concept that public need for increased access to inland lakes justifies judicial intervention, it will be difficult to distinguish between lakes with navigable inlets and outlets and those entirely surrounded by private land. If a court may use its decretal power to create what are in essence recreational easements over navigable inlets and outlets, it can also create recreational easements over dry land. An easement over a thin strip of land may not work any greater hardship than one over a shallow waterway of similar width.

48

At least one commentator has voiced opposition to any judicial attempt to fashion a solution to these problems through redefining the concept of navigability. See Bartke, Navigability in Michigan in Retrospect and Prospect, 16 Wayne L Rev 409, 450-451 (1970).

"It is becoming increasingly obvious to the public at large that the country faces grave problems in the management of water resources. The time available to correct various abuses of the past is getting shorter and shorter. Something has to be done and it has to be done in a hurry. To do the job, new and imaginative legal tools are necessary and they will not be fashioned by attempted redefinitions of the concept of navigability. Such attempts are doomed to failure in the long run because they are trying to solve new problems with concepts and tools developed in an entirely different context.” (Emphasis supplied.)