Hall v. Alford

• Decision Date: 14 September 1897
• Citation: 72 N.W. 137,114 Mich. 165
• Court: Michigan Supreme Court
• Parties: HALL v. ALFORD ET AL.

72 N.W. 137

114 Mich. 165

HALL v. ALFORD ET AL.

Supreme Court of Michigan

September 14, 1897

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Trespass by Edmund Hall against Charles Alford and another for breaking and entering plaintiff's close. There was a judgment on a verdict directed in favor of defendants, and plaintiff brings error. Reversed.

Oscar M. Springer (H. H. Hatch, of counsel), for appellant.

Ari E Woodruff and George W. Coomer (W. F. Atkinson, of counsel) for appellees.

LONG, C.J.

This action was in trespass, commenced in justice court, where judgment was given for defendants. On the trial in the circuit the court directed the verdict in favor of the defendants. The declaration was in writing, and substantially avers that the defendants on the 15th day of April, 1895 "with force and arms, the close of said plaintiff situate in the town of Brownstown, said county, and known and described as being 'Horse Island,' being situate directly east of sections one and twelve in township five south, of range ten east, with the adjacent shore, broke and entered, and with their feet in walking, shooting at game on said plaintiff's land, and within a short distance of the same a marsh flowed by water yet adjacent to the main shore of which his said lands above described are a part; and while in the act of so shooting game aforesaid trod down with their feet in so walking and hunting game, and with their boats and decoys crowded onto the grounds, anchored, trod down and trampled upon and destroyed the grass of said plaintiff there growing, and other injuries to him then and there did," etc. The plea was the general issue, with notice that no trespass was committed. The plaintiff gave evidence tending to show that he was the owner in fee of the island. There was offered and received in evidence a patent from the United States to Benjamin Hall, Jr., the land being described therein as "Horse Island, being situate directly east of sections one and twelve in township five south, ten east, as per plat approved April 2, 1885." Also a deed from Benjamin Hall, Jr., and wife to plaintiff, describing the same premises. Plaintiff further showed that he was in possession of the property at the time of the trespass complained of, and that he and his grantor had been in possession for many years. This island is situate in the Detroit river, the center of the river being east of the island and the main shore west of it. On April 15, 1895, the defendants came in a boat to a place near the north end of the island and about 60 feet from it, and about 216 feet from the channel bank, threw out their decoys, and commenced shooting ducks. They were warned off by plaintiff's agent, but refused to go. At the place where the boat was anchored the water was about 10 or 12 feet inches deep on that day. It was shown that at some times in the season this place was not covered with water at all, but at the time in question the water from the upland of the island to that point was from 6 to 12 inches deep, growing gradually deeper as the channel bank was approached. This land between the island and the channel bank is a shallow flat, and during some seasons of the year is covered with weeds, rushes, and grass as high as a man's head. This marsh extends all around the island, though there is a slight current passing through it. Plaintiff on the trial asked for nominal damages, which request was refused.

It is well settled in this state that the fee to the land under the waters of the rivers, as far as the middle thread, is in the riparian owner. In City of Grand Rapids v. Powers, 89 Mich. 94, 50 N.W. 661, the cases upon the subject are collected and the question discussed at such length that it is needless to cite or discuss them here. Among other things it was there said: "Under the settled laws of this state the defendant is the owner, by virtue of his riparian rights, of the soil of the river bed to the middle of the stream." In that case Mr. Justice Morse quoted with approval from the case of City of Janesville v. Carpenter, 77 Wis. 288, 46 N.W. 128, as follows: "That the owner in fee of this ground has a right to use and enjoy it to the center of the river in any manner not injurious to others, and subject to the public right of navigation, has been too often decided by this court and other courts to be questioned. As a riparian owner of the land adjacent to the water, he owns the bed of the river usque ad filum aqu�, subject to the public easement if it be navigable in fact, and with due regard to the rights of the riparian proprietors. He may construct docks, landing places, piers, and wharves out to navigable waters if the river is navigable in fact, and if it is not so navigable he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprietor or those having the superior right to use the waters for hydraulic purposes. *** Subject to those restrictions he has the right to use his lands under water the same as above water. It is his private property, under the protection of the constitution, and it cannot be taken or its value lessened or impaired, even for public use, without compensation or without due process of law; and it cannot be taken at all for any one's private use." Judge Morse added: "The law of this state is in complete accord and harmony with that of our sister state of Wisconsin in respect to riparian rights." In Webber v. Boom Co., 62 Mich. 626, 30 N.W. 469, it was said: "It is the settled rule in this state that the title of the riparian owner extends to the middle line of the lake or stream of the inland waters" (citing many cases). And again: "This has become a rule of property in this state, and the supreme court [of the United States] recognizes the right of each...