Jones v. Lee

• Decision Date: 18 October 1889
• Citation: 43 N.W. 855,77 Mich. 35
• Court: Michigan Supreme Court
• Parties: JONES v. LEE.

43 N.W. 855

77 Mich. 35

JONES v. LEE.

Supreme Court of Michigan

October 18, 1889

Error to circuit court, Muskegon county.

CAMPBELL, J.

Plaintiff recovered below in an action of ejectment which purported to be brought to recover a part, 100 feet wide, of block 1, in Muskegon, running from Water street to Muskegon lake, with its riparian rights. The real controversy was concerning part of a wharf in the lake entirely outside of the shore. The case was tried on the merits, and no question is made on the declaration. The court found certain facts and refused to find others. Exceptions were taken to rulings on evidence and to the decision on the facts and law involved in the conclusions. Upon the theory relied on by plaintiff the case which he presented did not show all the facts necessary to base his claim upon, and the record does not anywhere supply the defect. The defendant, however, showed a state of facts which it was claimed made out a complete defense to any possible theory which plaintiff could make out, and this was so presented as to require us to pass upon it. A reference to the nature of the controversy is therefore important. The city of Muskegon, succeeding the village of that name includes a large share of the southeasterly shore of Muskegon lake, and, as we gather from the charter, nearly half of its bed. Enough appears from the maps in evidence to show what the statutes indicate, that it is bounded by fractional sections. The maps also show, what possibly might be inferred otherwise, that the lake is of considerable size, bordering on several sections, and approaching an oval or elongated shape, with more or less indentations. The Muskegon river enters it on the south-easterly side towards the north-east end. The testimony does not precisely locate its outlet which we know, however, and possibly are bound judicially to know, leads by a short passage into Lake Michigan. The record does not show, and we have no means of knowing, whether it has always emptied in the same place. This lake appears distinctly to be a deep, navigable lake, and it appears that deep water is found near the shore, and that the wharf in question is built and used for the purposes of lake navigation. It does not appear whether the city of Muskegon has established a dock-line, as authorized or required by its charter. But the waters are of such a nature that no occupancy in hindrance of free navigation could be lawfully enjoyed. There is no rule of law which would authorize this body of water, merely because it is a theoretical expansion of a river, to be treated as anything but a navigable lake, which would not put the expansions of the St. Lawrence on a similar footing. A river is characterized by its confining channel banks, which give it a substantially single course throughout. A lake occupies a basin of greater or less depth, and may or may not have a single prevailing direction.

It appears clearly enough in the present case that while there is a considerable frontage north-west or south-east, the lake being longest in that direction, there must also be large end frontages, which look up or down the lake perpendicularly, or nearly so, to any line across from bank to bank, at most places along the shores. If this body of water were not navigable, and if all its waters could in any way be apportioned among the riparian proprietors for any lawful purpose, it is evident that it could not be done by reference to any flum aqu or middle thread, but must be done by some rule of proportion, which probably could only be got by some partition proceeding, inasmuch as such waters are common for all ordinary uses, unless it may have been placed in a different position by the public surveys, as has been done in many instances of small so-called "lakes," not navigable. See Clute v. Fisher, 65 Mich. 48, 31 N.W. 614, and cases cited. But, as this lake is navigable and large, the riparian rights (which, for all available purposes of a possessory nature, must be confined with reference to the paramount rights of navigation) depend on those principles which apply where immediate dependence on the flum aqu is impracticable. This was fully recognized in Rice v. Ruddiman, 10 Mich. 125, and Lincoln v. Davis, 53 Mich. 375, 19 N.W. 103. The chief value of riparian rights, in such a case, must refer to the access to navigation and use with reference to it of the space near the shore, and not to the area of deep water which cannot be appropriated, as was indicated in those cases and others here and elsewhere. It appears, furthermore, that...