Collins v. Gerhardt

211 N.W. 115, 237 Mich. 38, 1926 Mich. LEXIS 910

• Court: Michigan Supreme Court
• Decided: December 8, 1926
• Docket: Docket No. 66.
• Status: Published

Opinions

McDonald, J.

The plaintiff, a resident of Toledo, Ohio, owns 120 acres of land on both sides of the Pine river in Dover township, Lake county, Michigan. This river is a well known trout stream. It has been stocked by the State. The plaintiff claims the exclusive right of fishery in that part of the stream which flows through his land. Accordingly, at the point where it enters his premises he has strung three strands of barbed wire across from shore to shore and has posted notices warning the public to keep out. On the 21st of May, 1925, the defendant was fishing in Pine river. Disregarding the warning notices, he climbed over the wire fence and waded the river, angling as he went. The plaintiff sued him in justice’s court for trespass. From a verdict and judgment for the defendant, the plaintiff appealed to the circuit court. Again the defendant had a verdict, but on motion the circuit judge entered a judgment for the plaintiff for nominal damages notwithstanding the verdict. The defendant brings error to this court.

The question involves a determination of the relative fishing rights of the public and riparian owners in the navigable rivers of this State. In a very able opinion the circuit judge who heard the case reasons to the conclusion that the public has no right to fish in the Pine river where it flows through the plaintiff’s land. He bases this conclusion, first, on a finding that it is not a navigable river, and second, that though it be navigable the plaintiff has the exclusive right of fishery because he owns the soil under the water. It is conceded by all parties that if this river is not navigable Mr. Collins has the exclusive right of fishing in that portion which flows over his land. So that logically the first question to be considered is whether Pine river is a navigable stream.

In view of modern social and economic conditions, and the flexibility of the common law in adapting itself to the changing needs of the people, we shall not consider the term navigability in a too technical commercial sense, or seek out some ancient test in determining if Pine river belongs in the class legally regarded as public waters. It has been said that:

“The right of the public use in American rivers and streams depends, not upon their navigability, in the technical sense of the term, as defined by the common law.” Carter v. Thurston, 58 N. H. 104 (42 Am. Rep. 584).

And:

“If under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred.” Lamprey v. State, 52 Minn. 181, 199 (53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541).

The common law relative to the navigability of waters has never been wholly adopted by the courts of this State. -As has been said, it is not adaptable to our conditions and circumstances. If it had been adopted neither our Great Lakes nor our largest rivers could be classed as navigable. At common law only the sea and those rivers in which the tide ebbed and flowed were navigable. But above the ebb and flow of the tide some rivers were capable of floating vessels and were valuable in carrying the trade and commerce of the country. These rivers were not legally navigable but were characterized! as navigable in fact. In Michigan we have no waters in which the tide ebbs and flows, but we have lakes, and rivers which would meet the test! applied by the common law to waters navigable in fact. The test which the common law applied to determine whether rivers were navigable in fact was originally used in this country to determine if they were navigable in law. Here, every stream that is navigable in facN is navigable in law. So our first understanding of what constituted navigability in a river was whether it had the capacity for carrying boats and accommodating commerce and travel. But, in the settlement and development of this State, it soon became apparent that the people had other uses for the rivers and streams. There came the lumber industry and a demand for the use of the rivers for the floatage of logs, and rafts. The demand was resisted by the riparian proprietors, who claimed that the only use the public could make of the rivers and streams was-in navigation by boats. . This court met the situation by declaring all rivers navigable and public which in their natural state were capable of floating logs, boats and rafts. Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209).

In that case the court said:

"It was contended in argument, in behalf of the plaintiff in error, that the capacity of a stream to float logs and rafts, was no criterion of the public right of servitude; but that to render a river a public highway, it must be susceptible of navigation by boats. But this, we apprehend, is too narrow a rule upon which, in this country, to establish the rights of the public, and as already intimated, such is not the rule in any of the States. 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.”

Thus, it appears that early in the history of the State the common-law rule relative to the navigability of rivers was enlarged to embrace all streams having a capacity to float logs and rafts; and this was done to meet the needs and necessities of the people. Moore v. Sanborne, supra, was decided in 1853. During the long period that has followed it is not surprising to find in the judicial opinions of the court expressions of dieta from eminent common-law jurists, questioning the soundness of the principles enunciated in that case. But the Sanborne Case has never been overruled. There is no reason why it should be. It is in harmony with the judicial decisions of other States where similar conditions exist. It lays down a sensible rule based on the necessities of the people and saves for them all of the valuable public rises of which their rivers are capable.

Justice COOLEY recognized this rule in his great work on Constitutional Limitations, and states it as follows:

"If a stream is of sufficient capacity for the float-age of rafts and logs in the condition in which it generally appears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and shallow for that purpose.” Cooley’s Constitutional Limitations (7th Ed.), p. 861.

Measured by this test, is Pine river navigable?

In Ms findings of fact, which axe amply supported by the evidence, the circuit judge said:

“This river, from the time of the earliest timber operations along its banks until the time when the forest products tributary thereto have been manufactured and marketed, had been. used to float pine logs and other timber to saw mills and to market down the stream. * * * This river in its natural state is still potentially capable for use for floatage purposes.” '

In view of these facts as to its capacity for public use, Pine river is a navigable stream. Its. character as such has not been changed, and has not been lost by nonuser for any particular purpose. It is still “potentially capable for use for floatage purposes.” It is the capacity of a stream for public uses and not the frequency with which it is used that determines its navigability. Moore v. Sanborne, supra.

The next question presented for our consideration is the plaintiff’s claim that, though Pine river be a navigable stream, he has the exclusive right of fishing in that portion which flows over his land, because he owns the soil under the water. Under the law of this State a riparian proprietor owns the land to the thread or center of navigable rivers. If he owns the land on both sides he owns the entire soil under the water. Mr. Collins owns the soil under the water of Pine river where it flows over his land. But he does not own the water, and he does not own the fish. So far as they are capable of ownership they belong to the State for the common benefit of the people. This is conceded by the plaintiff, but he bases his exclusive right to fish in the water over his land on the common-law doctrine that the right of fishery follows the ownership of the soil. The determination of this question involves an inquiry into the character of Ms title or ownership. Is it absolute or qualified? It will be helpful to recall that Michigan was carved out of the Northwest Territory; that the Territory was ceded to the United States by Virginia; that the United States held this Territory in trust for future States to be created out of it; that the United States held the waters of navigable rivers and lakes and the soil under them in trust for the people, just as the British crown had formerly held them in trust for the public uses of navigation and fishery; that when Michigan entered the union of States she became vested with the same qualified title that the United States had; that these waters and the soil under them passed to the State in its sovereign capacity impressed with a perpetual trust to secure to the people their rights of navigation, fishing and fowling.

In the very recent case of Nedtweg v. Wallace, ante, 14, this court said:

“The State of Michigan, upon admission to the Union, became vested with title to the beds of all the navigable waters, like unto the crown of England or the crown and parliament at common law. This State is committed to the common-law doctrine that riparian rights extend to the thread of rivers and into lakes, except the Great Lakes. It is necessary to go back to the common law to decide the claim that the title of the State is impressed with a perpetual trust under which rights of navigation, fishing and fowling must be saved to the public.”

The State of Illinois was also created out of the Northwest Territory. Referring to the title of the navigable waters with which it became vested, the United States Supreme Court said in Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 452 (13 Sup. Ct. 110) :

“It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.” ■

Also in Wisconsin the Supreme Court said:

“So we are safe in saying that the title to the beds of all navigable streams of this State passed to the State from the United States with all the incidents of public waters at common law, including the right of fishing as well as navigation.” Willow River Club v. Wade, 100 Wis. 86, 111 (76 N. W. 273, 42 L. R. A. 305).

Now, it being the fact that the State of Michigan acquired title to all of the beds of its navigable waters in perpetual trust for the preservation of the public right of navigation, fishing, etc., and Pine river being navigable, how has it come about that the plaintiff, as riparian owner, has secured a title unimpressed with this trust? The answer is that he has no such title. If he has derived his title by purchase and grant from .the State, be has taken it subject to the same trust with which it was impressed while vested in the State. If he derived it by patent from the United States, he took it subject toi a like trust. Neither the United States nor the State of Michigan could divest itself of this trust. As was said in Nedtweg v. Wallace, supra:

“There has arisen, out of centuries of effort, limitation of crown prerogative, parliamentary action, numerous adjudications, common necessity, and public forethought, a rule beyond question, impressing rights of the public upon all navigable waters. * * * The State may not, by grant, surrender such public rights any more than it can abdicate! the police power or other essential power of government.”

It is not necessary to cite other authorities to show that this trust cannot be abrogated or surrendered. Our own court has so held.

While the United States held title to the Northwest Territory its policy was to leave the matter of fixing the rights of riparian owners to the future States. For 23 years after its admission to Statehood, Michigan adhered to the policy of retaining title to the beds of its Great Lakes and navigable rivers, and it has never by grant or legislative enactment changed that policy. It still owns the soil under the waters of the Great Lakes, but, by judicial decision in 1860, the title to the beds of navigable rivers was declared to be in the riparian owners. It was then that Justice Campbell wrote Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435). He seems to have considered it the wiser policy to place the title of the soil under navigable rivers in the riparian proprietors. This policy from long acquiescence has become a rule of property, so that it is now settled in this State that a conveyance of land adjoining a navigable river carries title to the center of the stream. But, though the court declared the title to be in the riparian owner, it could not divest the State of its trustee capacity, and did not undertake to do so. The title allowed to be taken by the riparian owners was subordinate to the public rights, including the public right of fishing. It was so held in McMorran Milling Co. v. C. H. Little Co., 201 Mich. 301, where it was said:

“It is true that the State might either by legislative enactment or judicial decision as has been done in this State, retain title to the bed of the Great Lakes and surrender such title in the riparian owner upon streams; but such title in the hands of either the State or riparian owner was still burdened with the trust.”

From this it follows that the common-law doctrine, viz., that the right of fishing in navigable waters follows the ownership of the soil, does not prevail in this State. It is immaterial who owns the soil in our navigable rivers. The trust remains. From the beginning the title was impressed with this trust for the preservation of the public right of fishing and other public rights, which all citizens enjoyed in tidal waters under the common law.

Pine river is navigable. In its waters the people have the common right of fishing. The plaintiff, though owner of the soil, has no greater fishing rights than any other citizen. Their rights are equal and correlative. So long as water flows and fish swim in Pine river, the people may fish at their pleasure in any part of the stream subject only to the restraints and regulations imposed by the State. In this right they are protected by a high, solemn and perpetual trust, which it is the duty of the State to forever maintain. Of course, in exercising this right people cannot go upon the uplands of riparian owners in order to gain access to the water. If they do that they are guilty of trespass.

Upon the trial of this cause it was further urged in defense of the people’s right to fish in Pine river, that this right was secured to them by Act No. 121, Pub. Acts 1891 (2 Comp. Laws 1915, §§ 7694, 7695). The plaintiff successfully attacked this act as unconstitutional. We have not discussed that question because the provisions of the act are merely declaratory of rights which the people already possessed under the laws of this State, and it is therefore of no importance.

The defendant, Gideon Gerhardt, was not guilty of trespass as charged by the plaintiff in this case. He was fishing where he had a legal right to fish, and in getting into the water he did not go upon the plaintiff’s upland.

The issues here involved were submitted to the jury. Their verdict was for the defendant. On motion of counsel for the plaintiff the court entered a judgment for him notwithstanding the verdict. In this the court erred.

The judgment so entered is reversed, and the cause remanded to the circuit court where a judgment will be entered for the defendant in accordance with the verdict of the jury. The defendant will have costs.

Sharpe, Snow,. Fellows, and Clark, JJ., concurred with McDonald, J.