Rice v. Ruddiman

• Citation: 10 Mich. 125
• Court: Supreme Court of Michigan
• Decision Date: 30 April 1862
• Parties: James A. Rice v. John Ruddiman

10 Mich. 125

James A. Rice v. John Ruddiman

Supreme Court of Michigan

April 30, 1862

Heard November 14, 1861; November 15, 1861 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Muskegon Circuit.

Rice was prosecuted by Ruddiman, under chapter 150 of the Compiled Laws, for the forcible entry and detainer of a building described as situated on the Muskegon Lake, in Muskegon township, near the north shore of said lake, opposite fractional section sixteen, town ten north of range ten east. Ruddiman pleaded not guilty to the complaint, and judgment having been rendered against him on trial before the commissioner, appealed to the Circuit Court, where the cause came on for trial October 10, 1860.

After a jury was impaneled, but before it was sworn, defendant's counsel objected to the whole panel, and to the swearing of a jury in the cause, upon the ground that under the statutes of this State there was no such officer as clerk or sheriff of said county of Muskegon, and therefore no lawful jurors; which objection was overruled by the court.

It appeared in evidence on the trial, that on the tenth day of December, 1859, the plaintiff was in possession of the premises in controversy, and that on that day the defendant, who was Deputy United States Marshal for the District of Michigan, forcibly entered into the same and took possession, by virtue of a writ of possession, issued July 20, 1859, by the Circuit Court of the United States for the District of Michigan, in Chancery, directed to the marshal of said district, commanding him to go to and enter upon fractional section eighteen, in township ten north of range sixteen west, in the county of Ottawa, and eject and remove therefrom said Ruddiman, and all every person or persons holding or detaining the same or any part thereof against Anson Eldred, or his assigns, and that he put said Eldred or his assigns in the full and peaceable possession thereof. This writ was issued in a suit in which said Eldred was complainant and said Ruddiman defendant, commencing May, 1854, to foreclose a mortgage deed, given in 1849, by said Ruddiman, of fractional section eighteen, to secure the payment of money advanced in building a mill on said section, and for other purposes.

A plat was then given in evidence, which was admitted to be a correct sketch of the said fractional section eighteen, with reference to Muskegon Lake, and with reference to the building described in the complaint, which is the one marked "2" on the plat. ^[*] The surroundings, as shown by the plat, are as they now appear.

The following testimony was then given on the part of defendant:

Robert Jibson testified, that "the Ruddiman mill stands about twenty-nine rods, as near as I can judge, from the main land, in a direct line out in the water from shore. The present roadway from the mill to the shore was not there in 1849; in that place was then a foot bridge over the water; teams had access to the mill over a sand bar. I don't think the sand bar went all the way to the mill, but say, out as far as the blacksmith shop (marked "3" on the plat); the rest of the way, I think, was a road of slabs, or a slab bridge, up to the mill; the bar was wider and larger where the blacksmith shop stood than the rest of its length. In 1849 I took up the floor near the machinery, and examined the foundation of the mill, at Ruddiman's request; there was a sort of springing motion in the foundation when the mill was in operation, which made it difficult to work the mill; under the floor I found water, and a soft muddy deposit into which I could thrust an edging perpendicularly four or five feet; the water between the mill and the shore is used for a boom; there was but very little dock when I first saw it. I have known the mill ever since it was built; there was a shed standing where the new part of the mill now is; there was a sort of shed there in 1849, but I afterward built another in its place, which remained till it was torn away to make room for the new mill; the water in Muskegon Lake is higher now than it was in 1849, but how much I can not exactly tell; it is falling a little this season.

Robert H. Morris testified, that "Lake Muskegon is about six miles long, with an average width of two and a half miles; the outlet from it into Lake Michigan is about sixty rods long, and the level of Lake Muskegon is affected by the level of Lake Michigan, and rises and falls with it." (It was here admitted by both parties that, for the purposes of this trial, Lake Muskegon should be considered an arm or estuary of Lake Michigan, and part and parcel thereof, and not as a widening or continuation of Muskegon River.) "I remember the site of the Ruddiman mill before the mill was built; I was around the north side of Muskegon Lake shortly before the Ruddiman mill was built; I think the same season; I remember the sand bar; it was dry when I was there. It was my impression that this mill, or a part of it, was built on the end of this bar; I do not remember the width of the bar, but think it was two or three rods wide in the widest place; it extended from the shore in an easterly direction. The present level of Muskegon Lake is from one foot to eighteen inches higher than in 1849; there was grass and rushes growing in the lake about the sand bar. Lake Michigan has a sort of ebb and flow once in six or seven years; perhaps longer; last season the water stood about still; this season it is subsiding a little; the rise and fall of these lakes is an ordinary occurrence."

Robert Urquhart testified "I yesterday examined the line of the sand bar as marked on the plat; it was plainly above water next the shore and next the mill dock, and there were two or three little points above the surface between. The deepest point in the bar was fourteen inches; the point nearest the mill, where the sand bar appeared, was at the edge of the slab dock, and about three hundred feet from the mill."

Darwin Olney, a witness for complainant, testified, "I know the building described in the complaint; it is the new Ruddiman mill; it was raised in July, 1855; I was there and assisted in building it; I assisted in preparing and clearing away for the foundation, and in laying the foundation; the bed timbers were laid in the water at the time; the water was about two feet deep where the foundation was laid; the new mill is a separate erection, about twenty by sixty feet, and adjoins the old mill on the south side; there was an old shed torn away which covered a part of the ground; the old shed did not cover the whole length of the new mill; in preparing the foundation the material taken out was mostly slabs."

The evidence being in, the Circuit Judge charged, among other things, as follows:

That as a matter of fact to be determined by the evidence, it was for the jury to find whether said new mill was upon and parcel of fractional section eighteen, or not.

That if the jury shall find that said new mill was erected upon ground above water at high water mark, and that the same was connected with the main land of said fractional lot by a continuous dry ridge or sand bar, that then the law would pronounce said mill upon fractional section eighteen, and subject to the process in the hands of the defendant, and his lawful acts thereunder would be justified.

That if, on the contrary, the jury should find that said new mill was built in the water of Lake Muskegon, so that its foundations were covered and surrounded by the circulating waters of said lake at the ordinary level of the same, that then the further admission of the parties in the trial that the entire Lake Muskegon was an arm of Lake Michigan, connected with and constituting a part and parcel of the latter lake, became important from the legal principle involved.

That the principle of law determining the right of riparian owners (upon navigable rivers and above tide water) and extending their proprietary rights to the center of the stream, were not necessarily applicable to the large bodies of fresh water and lakes in the interior of the continent.

That as to the ocean and waters of rivers where the tide ebbs and flows, the well settled principles of law determine that the proprietary interest of the riparian owner in the soil terminates at the line of ordinary high water mark: the State, in virtue of its sovereignty holds the ownership between high and low water mark; leaving to the riparian owner the right to abate as a nuisance any erection or use of the waters in front of his premises, incompatible with his free access and use in common with the public.

That with this sovereign right of the State the Federal Government can not interfere, by sale or otherwise, except for purposes of commerce and national defense.

That in the apparent absence of a settled law regulating and defining riparian rights around the large fresh water lakes of this continent, sustaining a commerce rivaling the ocean, the court can perceive no reason why the doctrine applicable to tide water should not apply to the lakes equally; the quality of the water, whether salt or fresh, being entirely immaterial; and especially if the jury find as a fact that the waters of all these lakes are subject to the same periodical tidal influences with the ocean.

The court therefore charged the jury, that the riparian owner upon the shores of Lake Michigan has no proprietary interests in the soil covered by the water, to the center line of said lake, but his rights of soil terminate at ordinary high water mark, under any purchase or patent from the general government; and ownership around Muskegon Lake--it being by the admission of defendant parcel of...