Pigorsh v. Fahner

194 N.W.2d 343, 386 Mich. 508, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20279, 3 ERC (BNA) 1912, 1972 Mich. LEXIS 198

• Court: Michigan Supreme Court
• Decided: February 25, 1972
• Docket: 27 April Term 1971, Docket No. 52,822
• Status: Published

Opinions

Pee Cueiam.

Upon leave granted (383 Mich 795) we review and affirm the respective judgments of the circuit court and of the Court of Appeals. For those judgments and the presently mentioned factual findings of both courts, see 22 Mich App 108.

Decisions establishing the “rule of property”¹ which of right control disposition of this case were gathered in Putnam v Kinney, 248 Mich 410 (1929). Putnam is “on all fours” here. These decisions go back to the simple proposition that one who is owner in fee of all of the upland surrounding one of our wholly private inland lakes, a lake having no navigable inlet and no navigable outlet, (a) really owns the subaqueous land of the lake and the water over the latter as well as the upland, and (b) that his property right is such that he may exclude all others from the lake, the general public included. All this cannot be gainsaid, nor is it denied. Ás against the successive and fully supported factual findings below the Attorney General responds simply that plaintiffs’ Wood Lake is at least navigable in fact and that the “Inland Lakes and Streams Act” of 1965 (No 291 [MCLA 281.731 et seq.; MSA 11.451 et seq.] amended since institution of this litigation by 1968 PA 7), with its declared applicability to “any navigable inland lake or stream,” has abrogated Putnam’s rule of property.

Our holding is that the act of 1965, so construed and applied, would collide with and fall before § 2 of article 10 of our Constitution. Guided by a familiar rule, we prefer to impute to the legislature an absence of intention to take in such manner private property “without just compensation therefor”. The applicable rule of construction appeared first in Van Fleet v Van Fleet, 49 Mich 610 (1883) and will be found echoed in a consistent list of cases appearing as §§ 117 and 118 of 16 Callaghan’s Michigan Digest, Statutes, pp 499-502 and 1971 Cum Supp at pp 166-167.²

The size of Wood Lake (74 area acres) matters not. Nor does it matter that such a wholly private lake is navigable in fact. The stated rule of property applies to a privately owned inland lake as large as six mile long Lake St. Helen (St. Helen Shooting Club v Mogle, 234 Mich 60 [1926]) and extends to one smaller than Wood Lake, such as 20-25 acre Giddings Lake (Giddings v Rogalewski, 192 Mich 319 [1916]).

Two ably considered and visibly painstaking opinions of this case were prepared and filed below. The first was written by Circuit Judge Peterson, sitting -in the 8th circuit, wherein Wood Lake is situated. The other was prepared by Court of Appeals Judge V. J. Brennan, for Division 3. The contemplative and discerning reader of Judge Peterson’s opinion, consisting as it does of 28 printed pages, and then of the fully consistent and equally level-headed opinion of Division 3, can but conclude that each of the courts below stands for sturdy adherence to the necessary stability of property law and for the due protection of plaintiffs’ vested and mature property right.

Affirmed. Costs of all courts to plaintiffs.

T. M. Kavanagh, C. J., and Black, Adams, T. G. Kavanagh, and Swainson, JJ., concurred. Williams, J., concurred in the result.

1 Ҥ 196. Property rights.

“Although stare decisis is not limited to precedents involving property rights, and although courts are not compelled to follow so-called ‘rules of property/ the doctrine of stare decisis is more strictly followed where property rights, especially rights in real property, are concerned and where rights have become vested in reliance on the precedents.” (20 Am Jur 2d, Courts, pp 531, 532).

This of course is the Michigan rule. Lewis v Sheldon, 103 Mich 102, 103 (1894); Pleasant Lake Sills Corp v Eppinger, 235 Mich 174 (1926); Dolby v State Highway Commissioner, 283 Mich 609, 615 (1938).

2 “We cannot properly hold that the Legislature designed to commit such an act of injustice as to take away vested rights and destroy valuable existing interests. We are bound, if possible, so to construe statutes as to give them validity and a reasonable operation.” (Justice Campbell, writing in Van Fleet at 613.)

“In the construction of statutes courts should lean towards that construction which will give the statute force, validity, not to that construction which will nullify it.” (Justice Fellows, writing for the Court in Thomas Canning Co v Southern Pacific Co, 219 Mich 388, 400 [1922]).