Lake Sand Co. v. State ex rel. Attorney Gen.

• Decision Date: 19 November 1918
• Docket Number: No. 9990.,9990.
• Citation: 120 N.E. 714,68 Ind.App. 439
• Parties: LAKE SAND CO. et al. v. STATE ex rel. ATTORNEY GENERAL.
• Court: Indiana Appellate Court

68 Ind.App. 439

120 N.E. 714

LAKE SAND CO. et al.

v.STATE ex rel. ATTORNEY GENERAL.

No. 9990.

Appellate Court of Indiana, Division No. 1.

Nov. 19, 1918.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Suit for injunction by the State, on relation of the Attorney General, against the Lake Sand Company and Hydraulic Sand & Transit Company. Decree for complainant, and the defendants appeal. Affirmed.Gavit, Hall & Smith, of Whiting, and John A. Gavit, of Hammond, for appellants.

Evan B. Stotsenburg, of New Albany, Peter Crumpacker, Fred C. Crumpacker, and Charles Crumpacker, all of Hammond, and Harry B. Tuthill, of Michigan City, for appellee.

IBACH, J.

The state of Indiana by and on the relation of its Attorney General brought this action to enjoin appellants from taking sand and gravel out of the bed of Lake Michigan within the boundaries of this state.

The questions presented by the record arise out of the overruling of appellants' separate demurrer for want of facts to the substituted complaint, hereinafter referred to as the complaint. The complaint is long. The introductory statement reads:

“The plaintiff, state of Indiana, by and on the relation of its Attorney General, Evan Stotsenburg, for substituted complaint complains,” etc.

Other material facts bearing on the questions presented are in brief as follows: Under the waters of Lake Michigan within the boundaries of this state there are large deposits of sand and gravel which are valuable in the market. The appellants are foreign corporations domiciled in the state of Illinois. For several years they have been committing daily trespasses on plaintiff's lands, under the waters of Lake Michigan, by going thereon and severing therefrom the sand and gravel deposits in the bed of the lake. Such sand and gravel as it lay on the bed of the lake was at the time of its removal of the fair market value of three cents a cubic yard. The sand and gravel was removed by the appellants by means of dredges, loaded in barges, and conveyed to the city of Chicago, where it was sold on the market. It is further alleged that appellants will continue to commit daily trespasses upon such lands, and continue to take sand and gravel therefrom unless enjoined from so doing; that it is impossible to estimate the damage that will result from such trespasses, and they would result in numerous lawsuits; that the remedy at law would be inadequate.

Among the objections set out in the memorandum accompanying the demurrer are the following:

“(3) The said complaint shows that the relator has no interest in the subject-matter of this action. (4) Said complaint shows that, if any right of action exists, it exists in the state of Indiana as plaintiff and not in the Attorney General of said state.”

[1] We are inclined to treat these objections as technical rather than substantial, in view of the nature of the action and the theory upon which the complaint is drawn. The word “plaintiff” wherever found in the complaint is in the singular number, and thus signifies that there is but one plaintiff, and the introductory statement heretofore set out shows that the plaintiff making complaint is the “state of Indiana.” But if we are wrong in this assumption, the statute (sections 9269, 9270, Burns' 1914) would seem to create such interest in the Attorney General as would authorize the action to be brought on his relation. Section 9269, supra, makes it mandatory upon the Attorney General to prosecute and defend all suits that may be instituted by or against the state of Indiana, the prosecution or defense of which is not otherwise provided by law, while section 9270 provides that:

“The Attorney General shall have charge of and prosecute all civil actions which shall hereafter be brought either in the name of the state of Indiana, or in the name of the state of Indiana on the relation of the Attorney General, or on the relation of any state board created by general law.”

See State ex rel. Baldwin v. Insurance Co., 115 Ind. 257, 17 N. E. 574;McCaslin v. State ex rel., 44 Ind. 151;State v. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627.

In the case first cited the court uses this language:

“We do not doubt the power and authority of the Attorney General to commence the action now before us [action to recover fees from foreign insurance company], and prosecute it to a final determination in the name of the state of Indiana upon his own relation, or upon the relation of the auditor of state, or without any relator.”

And in State v. Johnson, 52 Ind. 197, it was held that, where a cause of action exists in favor of the state, and the action is brought in the name of the state for a certain specified use, the words designating such use will be considered as surplusage, and the action will be regarded as an action properly brought by the state. The complaint is sufficient as against such objections.

[2] It is further insisted that, as the complaint does not show that the appellants were removing the sand and gravel from the bed of the lake to the exclusion of others, they are doing no more than they are entitled to do, and the complaint shows no grounds for equitable interference. It thus becomes necessary to determine the nature of the title of the state to the bed of Lake Michigan lying within its border. Appellants in effect concede that such land is held by the state in trust for the people as a whole, and the property so held in trust is common property of all, from which all may partake so long as in the taking none attempt to deprive others of a like privilege, but contend that it is held for the benefit of all, including appellants, and that until the state regulates the method of taking common property there can be no restraint or regulation, except only the power in the trustee to prevent the appropriation by one to the exclusion of others.

In Sloan v. Biemiller, 34 Ohio St. 492, with reference to the nature of the title of the state to the subaqueous land of Lake Erie, it was said:

“Although the dominion over and the right of property in the waters of the sea and its inland waters were, at common law, in the crown, yet they were of common public right for every subject to navigate upon and to fish in, without interruption. *** They were regarded as the inherent privileges of the subject, and ‘classed among those public rights denominated jura publica or jura communia, and thus contradistinguished from jura coronæ, or private rights of the crown.’ *** The sovereign was the proprietor of these waters, as the representative or trustee of the public. In this country the title is vested in the states upon a like trust, subject to the power vested in Congress to regulate commerce.”

See Martin v. Waddell, 16 Pet. 367, 412, 10 L. Ed. 997, 1013;McCready v. Virginia, 94 U. S. 391, 24...