Collins v. Gerhardt

• Decision Date: 08 December 1926
• Docket Number: April Term.,No. 66,66
• Citation: 211 N.W. 115,237 Mich. 38
• Parties: COLLINS v. GERHARDT.
• Court: Michigan Supreme Court

237 Mich. 38

211 N.W. 115

COLLINS

v.GERHARDT.

No. 66, April Term.

Supreme Court of Michigan.

Dec. 8, 1926.

Error to Circuit Court, Lake County; Fred S. Lamb, Judge.

Action by Frank Collins against Gideon Gerhardt. Judgment for plaintiff notwithstanding the verdict, and defendant brings error. Reversed and remanded, with directions.

Argued before the Entire Bench. Robert B. Savidge, of Reed City, and Linsey, Shivel & Smedley, of Grand Rapids, for appellant.

Wilbur B. Pool, of Luther, A. W. Penny, of Cadillac, and Brown, Hahn & Sanger, of Toledo, Ohio (George P. Hahn, of Toledo, Ohio, of counsel), for appellee.

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, Mich. 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 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 lands. 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, 53 N. W. 1139,18 L. R. A. 670, 38 Am. St. Rep. 541.

[2] 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 nevigable in law. Here every stream that is navigable in fact is navigable in law. So our first understanding of what constituted navigability in a river was whether it had the capacity for carring 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 fafts. 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. 520, 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 dicta 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 uses 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 floatage 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 Const. Lim, p. 851.

Measured by this test, is Pine river navigable? In his findings of fact, which are 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 sawmills 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.

[5] 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 his 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 (Mich.) 208 N. W. 51, this court said:

‘The state of Michigan, upon admission to the Union, became vested with title to the beds of all the...