Burroughs v. Whitwam

• Decision Date: 20 January 1886
• Court: Michigan Supreme Court
• Parties: BURROUGHS and others v. WHITWAM.

26 N.W. 491

59 Mich. 279

BURROUGHS and others v. WHITWAM.

Supreme Court of Michigan

January 20, 1886

Error to Genesee.

CHAMPLIN J., dissenting.

Long & Gold, for plaintiffs and appellants.

Durand & Carton and Wisner & Johnson, for defendant.

MORSE J.

The plaintiffs sued defendant in justice's court in an action of trespass, alleging in their declaration filed in the cause that the defendant broke and entered their close, described as "All that land flowed by the mill-pond at high-water mark, on west half of north-west quarter of section 20, town 7, north of range 7 east, in township of Burton, in Genesee county." The main trespass complained of is the act of the defendant in going on the water of this mill- pond in a boat and catching fish, which he took and carried away, of the value of two dollars; setting forth also that the defendant, previous to the committing of the acts complained of, had been duly notified that the plaintiffs forbade all entry or trespass on said premises. Defendant pleaded the general issue. From the justice's court the case went to the circuit without any change of the pleadings and, upon a trial there, the jury found a verdict for the defendant.

The plaintiffs are the owners of a grist-mill situated upon a stream known as "Thread River," and have a dam across said stream, creating a pond. The land covered by this pond, described in the declaration, is within and inclosed by the lands of the plaintiffs. Said dam and pond have been in existence, except in case of washouts, continuously since 1832, and perhaps longer. There is no dispute as to plaintiffs' ownership of the soil under this pond, as claimed in their pleadings, or that the defendant was on the pond in a boat fishing upon some of the days named in the declaration. The controversy, therefore, turned upon his right to be there after notice by plaintiffs forbidding him to enter upon the premises to fish. The defendant claims that he has a right to go on the pond and catch fish because the Thread is a navigable river. The plaintiffs deny that the stream is navigable, and insist that they have the exclusive right to the fish in the waters in the pond above the soil owned by them.

The court below instructed the jury, in substance, that, if they found the Thread to be a navigable stream, the public would have a right to use the same for travel or pleasure or business; and, if traveling thereon by boat, lawfully, that defendant might take fish from the waters of the pond without being liable as a trespasser. This was excepted to, and the plaintiffs' counsel here insisted that the evidence in the case did not warrant the submission of the character of this stream, as to its being navigable, to the jury; that there was no evidence tending to show it to be of any utility at all for public use for floating or carrying purposes, and that it is a mere brook or creek, with no element of navigability about it; that the court, on the contrary, should, under the proofs, have instructed the jury that it was not a navigable river. This position we think correct. The most favorable evidence for the defendant shows the Thread to be a very crooked stream, running above this damfive or six miles to get two; varying from 15 to 50 feet in width, its general average being about 25 feet; its average depth about two or three feet, being sometimes in the highest freshets from six to seven feet deep in places, and in a dry time so shallow in places that one can cross it without going over shoe. This pond is only a mile or so above where the Thread empties into the Schwartz creek, and we have no testimony as to the character of the stream, except for about six miles above the pond. It has never been used for the floating of logs, or any other commodity. It has never been a water highway for purposes of travel or transportation. Once or twice a year some adventurous fisherman has pushed or poled a canoe or boat up and down it for a few miles. It is not a meandered stream, and the farmers along it have fences or gates across the stream to mark the lines of their farms. We have a history of this stream for over 50 years, and yet this most favorable view of the creek must also be taken in connection with the fact that its depth of water is taken above the mill pond, and is no doubt more or less increased by the setting back of its waters. It also appears, without contradiction, that there are plenty of places called "rapids," where the depth of water is not over four or six inches, except in times of high water or freshets; and that the periods of high water are of very short duration; and no advantage of such freshets has ever been taken for floating purposes of any kind. Under the facts this stream does not come anywhere within or near the most liberal definition of a navigable stream, in the books.

It has none of the elements of navigability as laid down in our court. Moore v. Sandborne, 2 Mich. 519; Thunder Bay...