City of Grand Rapids v. Powers
| Decision Date | 21 December 1891 |
| Citation | 89 Mich. 94,50 N.W. 661 |
| Court | Michigan Supreme Court |
| Parties | CITY OF GRAND RAPIDS v. POWERS. |
Appeal from superior court of Grand Rapids, in chancery; EDWIN A BURLINGAME, Judge.
Suit by the city of Grand Rapids to enjoin the building of a wall in the Grand river by William T. Powers. From a decree granting an injunction defendant appeals. Reversed.
Blair, Kingsley & Kleinhans, (E. F Uhl, of counsel,) for appellant.
Wm. Wisner Taylor, for appellee.
Grand river is one of the largest and most important inland streams of the state. It is a navigable river. It has been a water highway, upon which for many years logs and lumber have been floated from the pineries to the lake at Grand Haven, or to mills at various points upon the river bank. It has never been navigable for boats, except canoes and bateaux above Lyons, and no steamboats have been above the rapids at Grand Rapids for many years. Small steam-boats have run between the mouth and the city of Grand Rapids, and, with the aid of government appropriations, the river, below the rapids at that city, may be made to be a water-way of great commercial utility; but above the rapids it has nearly served its usefulness as a navigable stream, except for small pleasure boats. The running of logs, lumber, and timber upon it is no longer of consequence, on account of the exhaustion of the forest supply of easy access to it and its tributaries. But it will ever be an important public stream, and its navigability for pleasure is as sacred in the eye of the law as its navigability for any other purpose. Its waters empty into Lake Michigan, and from thence flow into the St. Lawrence and to the sea; and under the ordinance of 1787, as well as the laws of our state, it must be regarded in the main as a public river and a common highway. It passes through the city of Grand Rapids, dividing the place into two parts, known as the "East" and "West" sides. "The Rapids" take up within the city limits about two miles of the river. The fall of the river bed is such that the water, in the natural state of the river, flowed with such velocity at a shallow depth, among numerous rocks and boulders, over these rapids, as to entirely prevent any navigation, except with canoes; and it was always with great difficulty that one of these could be poled up the stream. The character of the underlying soil of the river here is rocky,-ledge rock between the dam and Bridge street, and below that it is composed of clay boulders and gravel, with ledges of rock occasionally cropping out. There never has been a steam-boat up or down these rapids but once, and then it had to be drawn up by oxen, horses, and Indians. Logs could never well be floated down without improvements of the channel. The rapids, in a state of nature, served no useful end in any kind or method of navigation. Upon the east bank of the river, and below the dam, extensive encroachments have been made by property owners, the first beginning of such encroachments dating back many years, and almost from the first settlement of the country; and made lands, and buildings upon them, of the value of millions of dollars, are now located in the old river bed upon that side. The defendant, William T. Powers, in 1866, was the owner of the west bank of the river from a point above the present dam down to a point below the Grand Rapids & Indiana Railroad bridge. The river near by, and within the city limits, is spanned by seven bridges, in the following order, from the north to the south: The Detroit, Grand Haven & Milwaukee Railroad bridge, Leonard-Street bridge, Sixth-Street bridge, Bridge-Street bridge, Pearl-Street bridge, Grand Rapids & Indiana Railroad bridge, Fulton-Street bridge, and Chicago & West Michigan Railroad bridge. Five of these are maintained by the city. None of these, except the last, have any draw or openings for the passage of boats, and they are comparatively low bridges, with their supporting piers resting upon the bed of the river. In 1866 and 1867, Powers, in connection with other riparian owners, and with municipal and legislative consent, built a dam across the river. This dam is about 650 feet in length, and about 7 feet in height. A chute was put in to accommodate and facilitate the running of logs over the dam. Powers, at the same time, and in connection with his dam, built a canal along the line of his lands, upon the west side, which is about two-thirds of a mile in length. Part of it was built in the natural ground and part encroached upon the shallow waters of the original stream. The water of this canal is about nine feet deep, and varies in width from 50 to 100 feet. This improvement is worth many thousands of dollars. In 1885 the legislature, by Act No. 292 of the Local Laws of that year, amending the charter of Grand Rapids, conferred power and authority on the board of public works of the said city of Grand Rapids to establish dock and building lines on the shores and margin of Grand river within the corporate limits of said city, and in the waters and in the bed of said river along the said shores and margin, beyond which said lines, when so established, no dock, wharf, building, or structure of any kind, except public bridges, should be constructed in said river, or on or over the bed thereof, nor should the water be in any manner obstructed beyond said established lines; and authorized the common council of said city to enforce the power thus granted, relating to the establishment of such lines, by ordinances duly enacted in that regard, and authorized said common council to impose appropriate penalties for that purpose within the limits prescribed by said charter of said city; and also provided that the ordinances or regulations of said common council, in relation to said dock-lines, might be enforced at the suit of said city by bill in equity. Afterwards, acting under this authority, the board of public works of said city, on the 3d day of May, 1886, established a dock and building line on the shores and margin of said Grand river within the corporate limits. On the 26th day of July, 1886, the common council of said city passed an ordinance entitled "An ordinance to prohibit and prevent the erection of buildings, docks, and other structures, and to prohibit and prevent the filling in of earth or other material, on the shores of Grand river, or obstructing the waters of Grand river, beyond the dock and building lines established by the board of public works," which was afterwards amended on the 30th day of January, 1888. This ordinance prohibited any encroachment upon the river shore or bed of any kind outside of the established dock-lines. These dock-lines were established by the board of public works without
notice to Mr. Powers or any of the riparian owners along such lines; nor does it appear that they were consulted in regard to the location of such lines.
After the establishment of these dock-lines, Mr. Powers commenced the building of a wall in the stream. The wall was built of stone, and about four feet wide; and the defendant admits that he had constructed said wall to about the following dimensions: "Commencing at or near the southerly end of the waste weir of the West-Side canal, so called, in said city, near the dam across said Grand river; thence extending south-easterly 66 feet, more or less, to a point just about 45 feet east of the said pretended dock and building line so pretended to be established by the board of public works; thence extending southerly on a line which, if extended, would meet the public bridge over said Grand river at East Bridge street, in said city, at a point about thirty feet east of said pretended dock and building line." He also admits that he intends to build said wall from the dam to Bridge street, and for his own purposes, and that the same is and will be outside the said dock-lines.
The city of Grand Rapids files its bill of complaint in the superior court of Grand Rapids, in chancery, basing its right for relief upon the legislative act aforesaid, and the action of the board of public works and the common council, under the authority given these bodies by such act, and claiming- First, that the structure was unlawful by reason of such act and the proceedings under it; second, that such wall is of great damage and detriment to the public use of the stream, as it would greatly narrow the natural channel, and impede the flow of the water therein, and in times of high water would cause the waters of the river to be held back, and overflow and flood various portions of the city and its public streets, thereby causing great public and private damage, and occasion sickness to the inhabitants of the city by causing the ground thus overflowed to be damp and foul; third, that it will interfere with the public use of the river, and its value for the purposes of commerce, for the floating of vessels, boats, rafts, and logs. The bill prays that the defendant may be temporarily, and also permanently, enjoined from building the wall, or any other wall outside of the said dock-lines, and that he be decreed to remove said stone wall by him constructed.
The defendant, answering, avers that, by virtue of his riparian rights, he owns the soil and bed of Grand river to the center thereof; that he has a right to make such use of the bed of said stream within his said ownership as he sees fit, provided only that he does not interfere with the public use of said stream for the purposes of navigation, or with the rights of other riparian owners upon its banks; and denies that this dam so built, or as it is intended to be constructed, interferes at all with the public use of said river, or with the rights of other riparian owners; and further avers that the same,...
To continue reading
Request your trial