Kavanaugh v. Baird

• Decision Date: 03 January 1928
• Docket Number: No. 81.,81.
• Citation: 241 Mich. 240,217 N.W. 2
• Parties: KAVANAUGH v. BAIRD, State Director of Conservation.
• Court: Michigan Supreme Court

241 Mich. 240

217 N.W. 2

KAVANAUGH

v.BAIRD, State Director of Conservation.

No. 81.

Supreme Court of Michigan.

Jan. 3, 1928.

Appeal from Circuit Court, Bay County, in Chancery; Samuel G. Houghton, Judge.

Suit by William P. Kavanaugh against John Baird, Director of Conservation of the State of Michigan. From a decree of dismissal, plaintiff appeals. Modified and rendered.

Argued before the Entire Bench. Hubert J. Gaffney, of Bay City (Wm. M. Mertz, of Detroit, and Laurence W. Smith, of Grand Rapids, of counsel), for appellant.

William W. Potter, Atty. Gen., and M. M. Larmonth, Asst. Atty. Gen., for appellee.

FELLOWS, J.

Plaintiff files this bill against the Director of Conservation to quiet title to a strip of land several hundred feet in width between the meander line and the present waters of Saginaw Bay, a part of Lake Huron. It is his claim that he owns the fee by reason of accretion and reliction and that such title has been assailed by the defendant, who asserts that the title is in the state in trust for its people. From a decree dismissing his bill and sustaining defendant's contention, he appeals.

It is suggested, rather than insisted upon, by the Attorney General that plaintiff has not established title to the fast land. But upon the hearing in the court below plaintiff's counsel put in evidence the abstracts of his title and it was conceded that he had title to the meander line. The abstracts have been filed with the other exhibits in this court. We shall accept the concession and assume plaintiff's title to the meander line to be unassailable. The strip involved has been platted into lots, is known as Alpin Beach, and the lots have been leased to various parties who have erected cottages and who pay rent to plaintiff. The trial judge found the strip was the result of accretions, but we are satisfied from the record and the facts of which we take judicial notice that it was formed by both accretions and reliction; the latter being the most potent. Saginaw Bay is very shallow at the shores and but slight recession of the water uncovers a large area.

The main question in the case, whether plaintiff has title in fee to the locus in quo and may put it to such legitimate use as he desires, is to be solved by the further question of whether we should at this time overrule Kavanaugh v. Rabior, 222 Mich. 68, 192 N. W. 623. That case of ejectment involved a portion of the disputed strip, was brought by the present plaintiff upon the same claims here asserted, and defended by a private individual upon the same ground here defended by the state. That case is not res adjudicata of the present case as claimed by defendant; the parties are not the same, nor are they privies, but that case did decide the questions here involved, and necessarily involved, and unless we are prepared to overrule it, it is controlling.

[2] It was there held that the title to the strip of land between the meander line and the then waters of the bay, which this record discloses has materially increased since the trial of that case, being a part of the lake bottom of Lake Huron at the time the state was admitted into the Union, passed to the state in trust for its people. The language there and here controlling, in addition to the recognition of the trust doctrine in the bottoms of the Great Lakes, was and is the following language of Mr. Justice Bird, speaking for the unanimous court:

‘When the meander line was established it fixed the status of the disputed strip as lake bottom, and this status in the law would not change even though a portion of it had become dry land.’

If the title to the lake bottom passed to the state in trust upon its admission to the Union and that title did not shift and change with the shifting and changes in conditions, and we so held in that case, then the title to the property here in question is in the state in trust, and is not in the plaintiff, and to sustain the plaintiff's contention necessitates the overruling of the Rabior Case and the cases which have preceded it.

The so-called ‘Trust Doctrine’ as applied to the Great Lakes is now recognized beyond question by this court. While its applicability to inland waters has not received unanimous approval (see Collins v. Gerhardt, 237 Mich. 38, 211 N. W. 115), I do not understand that its applicability to the Great Lakes is questioned by any member of this court. But it has been a matter of slow growth. General language recognizing it will be found in opinions, but the subject was not considered in detail and the reasons upon which it was bottomed pointed out until Mr. Justice Hooker wrote his exhaustive opinion dealing with the subject in State v. Fishing & Shooting Club, 127 Mich. 580, 87 N. W. 117. No one signed with Mr. Justice Hooker, but he again wrote in Olds v. State Land Commissioner, 134 Mich. 442, 86 N. W. 956,96 N. W. 508, adhering to his former views. On rehearing of this case an issue was framed and the case again came before the court in Olds v. Commissioner of State Land Office, 150 Mich. 134, 112 N. W. 952. Mr. Justice Montgomery, who wrote the prevailing opinion, did not go as far as Mr. Justice Hooker's views as expressed in the Fishing & Shooting Club Case, and Mr. Justice Hooker concurred in the result reached in a short opinion. But Mr. Justice Hooker lived to see his views become the holding of the court in the unanimous opinion in State v. Venice of American Land Co., 160 Mich. 680, 125 N. W. 770, which we shall now consider.

Our reports will disclose that covering a number of years the state was involved in litigation concerning the St. Clair Flats. Each case had been decided upon the record as made in that particular case, and as a result there had not been such a finality of decision as fixed the state's title and its rights once and for all. Private parties were occupying, and seeking the right to occupy, this valuable territory for little or no consideration. The state, of course, desired that its title and rights be fixed by a decision that would be a finality not only as to the case in hand but for all times and for territory of a similar character. The Venice of America Land Company had platted a vast territory on the Flats and had advertised it for sale to the public in defiance of any rights of the state. Thereupon the state filed its bill. A large amount of testimony was taken. It appears in the two volumes of record in that case. The case was exhaustively briefed, the briefs filed aggregating 336 pages. The state realized that to maintain its bill it must satisfy the court as a fact that the territory was lake bottom at the date the state was admitted into the Union, and it must satisfy the court as matter of law that the state then took title in its sovereign capacity in trust for its people and that the conditions then existing were controlling for all time. This it succeeded in doing. The court found that the locus in quo was lake bottom at the time the state was admitted into the Union, it applied the trust doctrine, and in one terse sentence sustained the contention that conditions at the date of the admission of the state into the Union controlled. Mr. Justice Stone speaking for the court said:

‘The condition of this territory when the state was admitted into the Union is the condition which must control. That the state of Michigan holds these lands in trust for the use and benefit of its people-if we are correct in our conclusion-cannot be doubted. The state holds the title in trust for the people, for the purposes of navigation, fishing, etc. It holds the title in its sovereign capacity.’

We shall have occasion to refer to this case later. Following this decision, the Legislature passed a comprehensive act for the leasing and control of lands of this character (Act No. 326, Public Acts 1913; sections 606 et seq., C. L. 1915). It has been amended from time to time (Act No. 12, Public Acts 1917; Act No. 382, Public Acts 1921; Act No. 48, Public Acts 1923). Its validity was upheld in Nedtweg v. Wallace, 237 Mich. 14, 208 N. W. 51,211 N. W. 647.

This court, irrespective of what other courts have held, and irrespective of what text-writers have said, is committed to the trust doctrine as applied to lake bottom lands in the Great Lakes. We shall not again review the authorities sustaining that doctrine. Mr. Justice Hooker reviewed them exhaustively in State v. Fishing & Shooting Club, supra, and the writer considered them at some length in Collins v. Gerhardt, supra.

But long before the Venice of America Land Company Case, and in 1888, it was held by this court, in Sterling v. Jackson, 69 Mich. 488, 37 N. W. 845,13 Am. St. Rep. 405, that the title to shore lands on the Great Lakes did not change with a change in conditions. The reverse of the present situation was then before the court. There the land had been inundated by navigable water. Plaintiff Sterling had obtained a patent from the state of lands adjoining Lake Erie, which lands were granted to the state under the Act of Congress of September 28, 1850, commonly known as the ‘Swamp Land Act’ (43 USCA §§ 982-984;U.S. Comp. St. §§ 4958-4960). Their character had in the meantime materially changed, and at the time of the alleged trespass they were covered by water navigable in fact and navigation over them was common. Mr. Justice Campbell pointed out in his dissenting opinion that for 32 years the locus in quo had been ‘open water.’ Mr. Justice Champlin, who wrote the prevailing opinion, recognized that this fact constituted an implied license to the use by the public of the navigable waters, but held that when such license was revoked by the owner of the fee, the action could be maintained by such owner for a trespass thereafter committed, and it was held (quoting from the syllabus):

‘Lands lying in the state of Michigan which belonged to the United States at the date of the passage of the act of September 28, 1850, and which came within the...