Kelley ex rel. Macmullan v. Hallden

• Decision Date: 15 January 1974
• Docket Number: No. 3,Docket No. 14356,3
• Citation: 51 Mich.App. 176,214 N.W.2d 856
• Parties: Frank J. KELLEY, Attorney General, ex rel. Ralph A. MacMULLAN, Director of the Department of Natural Resources, for and on behalf of the Department of Natural Resources, and the People of the State of Michigan, Plaintiffs-Appellees, v. Eric HALLDEN and Zoja Hallden, his wife, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 856

214 N.W.2d 856

51 Mich.App. 176

Frank J. KELLEY, Attorney General, ex rel. Ralph A MacMULLAN, Director of the Department of Natural Resources for and on behalf of the Department of Natural Resources and the People of the State of Michigan, Plaintiffs-Appellees, v. Eric HALLDEN and Zoja Hallden, his wife, Defendants-Appellants.

Docket No. 14356.

Court of Appeals of Michigan, Division No. 3.

Jan. 15, 1974.

Released for Publication Feb. 19, 1974.

Rehearing Denied Feb. 28, 1974.

Charles A. Palmer, Cummins, Butler & Thorburn, Lansing, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Asst. Atty. Gen., for plaintiffs-appellees.

Before BASHARA, P. J., and McGREGOR and BRONSON, JJ.

McGREGOR, Judge.

M.C.L.A. § 307.41; M.S.A. § 13.1681 provides:

'That in any of the navigable or meandered waters of this state where fish have been or hereafter may be propagated, planted or spread at the expense of the people of this state or the United States, the people shall have the right to catch fish with hook and line during such seasons and in such waters as are not otherwise prohibited by the laws of this state.'

For the purpose of enforcing public rights created by the foregoing statute, plaintiffs instituted this action to permanently enjoin defendants from interfering with the passage of boaters and waders on the St. Joseph River. From the trial court's judgment and order granting plaintiffs such relief, defendants appeal.

Defendants own property through which the St. Joseph River in Calhoun County flows. Because fishermen and boaters using the river were continually trespassing on their uplands, defendants placed chains across the river to prevent its use by the public. Plaintiffs brought this suit for the purpose of compelling defendants to remove these chains.

In support of their claim that defendants' riparian rights are subject to the above quoted statute, plaintiffs adduced evidence at trial to the effect that the river, in the area of defendants' property, had been used for hunting, fishing, boating and canoeing for at least 40 years, that the state planted fish in the river about seven miles downstream from the defendants' land from 1937 to 1943, and that these fish would have had no difficulty migrating upstream to the section of the river passing through defendants' land.

Additional evidence indicated that the average width of the river in the area is 79 feet and the average depth 22 inches. At the east boundary of defendants' land the river is 44 feet wide and roughly 28 inches deep. Approximately one-quarter of a mile downstream from defendants' west boundary, the river is 105 feet wide and about 20 inches deep. These measurements were made during spring high water and no evidence was introduced to show the low water mark.

The narrow issue before us is whether the trial court erred in ruling, on the basis of the foregoing evidence, that the St. Joseph River is navigable as it flows through defendants' property.

Defendants contend that since no evidence was submitted at trial to show that the river section in question was ever used for commercial transportation or log floating, there is no factual support for the trial court's conclusion that the river is navigable at that point Navigability not having been validly established, defendants submit that M.C.L.A. § 307.41; M.S.A. § 13.1681 is inapplicable, and the trial court erred in granting injunctive relief on the basis of that statute.

Plaintiffs respond the recreational uses alone can support a finding of navigability.

Because of both the extent of Michigan's water resources and the central role played by the concept of navigability in the law of water rights, we approach the present issue with an abundance of Michigan precedent at our disposal. Unfortunately, this wealth of case law does as much to hinder as to facilitate our attempt to formulate a rational approach to the issue of navigability. This is so, not because past decisions lack in clarity or logic, but rather because century-old judicial pronouncements are basically a reflection of economic interests and values no longer of substantial importance in contemporary society. Prior definitions of navigability, linked inextricably to the commercial necessities of 19th century Michigan, are simply no longer meaningful tools in the judicial process of balancing the interests of both riparian owners and the public in Michigan's water resources. We must resist, therefore, the temptation to apply mechanically the rules expounded in an earlier and vastly different era, and must, instead, strive to mold the concept of navigability to the needs of the later 20th century. Indeed, it is submitted that the same judicial pragmatism which gave birth to those former definitions of navigability demands their abandonment now.

The importance of both commercial interests and judicial pragmatism is evident in the earliest and still most influential Michigan decision defining navigability: Moore v. Sanborne, 2 Mich. 520 (1853). One of the issues confronting the Court in that case was whether a portion of the Pine River was navigable. The evidence indicated that the portion of the river in question had been used only for floating logs and could be so used only during periodic freshets. Accordingly, the appellant first argued that the river was not navigable because it was incapable of commercial use by boat and hence not a public highway under English common law. ¹ Rejecting this argument, ² the Court adopted the holding in Brown v. Chadbourne, 31 Me. 9, 21 (1849), as the Michigan test of navigability:

"The true test, therefore, to be applied in such cases is, whether a stream is inherently and in its nature, capable of being used for the purposes of commerce for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use, not inconsistent with it." 2 Mich. 520, 524-525.

Referring to the English rule requiring commercial transportation by boat, the Court noted:

'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--and hence, in a region where the principal business is lumbering, or the pursuit of any particular branch of manufacturing or trade, The public claim to a right of passage along its streams must depend upon their capacity for the use to which they can be made subservient. In one instance, perhaps, boats can only be used profitably, from the nature of the product to be transported--whilst, in another they would be utterly useless. Upon many of our streams, although of sufficient capacity for navigation by boats, they are never seen--whilst rafts of lumber of immense value, and mill logs which are counted by thousands, are annually floated along them to market. Accordingly, we find that a capacity to float rafts and logs in those States where the manufacture of lumber is prosecuted as a branch of trade, is recognized as a criterion of the public right of passage and of use, Upon the principle already adverted to, that such right is to be ascertained from the public necessity and occasion for such use.' 2 Mich. 520, 525-526. (Emphasis added.)

Michigan's approach to the issue of navigability has progressed little in the 120 years since Moore was decided. Navigable waters in this state are divided into two classifications: strictly navigable and floatable (the latter sometimes termed navigable in a limited or qualified sense). ³ Strictly navigable waters are those capable of use for valuable boat or vessel navigation, I. e., public highways under English common law. Floatable waters, as in Moore, are those suitable, in their natural condition, for the floating of logs or rafts of lumber. The distinction is most frequently employed in cases involving statutory interpretation, as in In re Martiny Lakes Project, 381 Mich. 180, 160 N.W.2d 909 (1968), where the Court held that the term 'navigable streams' in the inland lake level act of 1961, M.C.L.A. § 281.61 et seq.; M.S.A. § 11.300(1) et seq. referred to strictly navigable, and not floatable, streams. See also Shepard v. Gates, 50 Mich. 495, 15 N.W. 878 (1883).

For purposes of the present appeal, we need not dwell on the distinction between strictly navigable and floatable streams. Suffice it to say that once it is established that a stream is found to be included in either of the classifications, public fishing rights attach. Attorney General ex rel. Director of Conservation v. Taggart, 306 Mich. 432, 11 N.W.2d 193 (1943); Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926). ⁴ Writing to this point, a leading commentator has noted: ⁵

'With the disappearance of the forests and the emergence of law technical means, logging no longer depends on floatable streams for its existence and the importance of such waters for floating purposes has disappeared. At the same time, the public has increasingly turned to such rivers for recreation, primarily trout fishing. In a series of cases, the court has held that such qualifiedly navigable waters which at any point in time were used or usable for the floating of logs, are open to the public for fishing whether from boats or by means of wading, so long as they can be reached without trespass on the riparians' uplands. Therefore, the state may enjoin riparian owners from putting obstructions into the stream which prevent members of the public from proceeding in the river whether by boat or by wading.'

In light of the above, the crucial aspect of this case is made clear. The plaintiffs failed to introduce any evidence at trial to establish...