Lincoln v. Davis

• Citation: 19 N.W. 103,53 Mich. 375
• Court: Michigan Supreme Court
• Decision Date: 23 April 1884
• Parties: LINCOLN v. DAVIS.

19 N.W. 103

53 Mich. 375

LINCOLN v. DAVIS.

Supreme Court of Michigan

April 23, 1884

Riparian rights upon the great lakes are, in theory, the same as upon navigable streams, and are not governed by any such proprietary division as high and low water mark. The submerged lands are appurtenant to the upland so far as their limits can be reasonably identified; but in public waters the state law must determine how far rights in such lands can be exercised consistently with the easement of navigation.

The state can forbid any erections in navigable waters, and on navigable streams, and along the great lakes can fix the distance beyond which private erections cannot be maintained.

Fishing in open waters remote from the land is a maritime business like navigation, and may be carried on with any suitable machinery, and even with stakes, wherever it does not interfere with navigation and is not forbidden by law. And in narrow streams fishing from boats with lines cannot be complained of by riparian owners, if the persons fishing have the right to be there.

Fish are ferae naturae, and can be taken by any one who has the right to be on the premises.

Temporary occupation of open and public waters for stake-fishing cannot be want only interfered with so long as the occupant is engaged in actual business and his operations do not impede navigation or amount to a nuisance causing special damages to private persons.

How.St � 2172, in protecting the rights of riparian owners along the lakes and in the adjacent bays and inlets to exclusive fishing with stationary nets for one mile from low-water mark, establishes a valid rule. But beyond that limit one has no right, as riparian owner merely, to interefere with stake-fishing by others.

Error to Alpena.

J.D. Turnbull, for plaintiff.

Carpenter & Williams and Hatch & Cooley, for defendant and appellant.

CHAMPLIN J.

Thunder bay is a portion of the waters of Lake Huron. The bay is of considerable magnitude, being about 13 miles wide at its mouth, and extending from South Point in a north-westerly direction a distance of 15 or 20 miles. The shores of this bay are quite irregular, and indented with smaller bays, one of considerable size being known as Squaw bay. Sulphur island is situated in Thunder bay, between one and two miles from the mainland, in the western part of the bay. It contains about 53 acres of land, and was surveyed and sold by the United States government as lots 1 and 2 of section 13, in township 30 N., range 8 E. This island is valuable only in connection with the fisheries in Thunder bay. There is a channel between it and the mainland of about 13 feet of depth of water, but the main channel used in navigation to and from the city of Alpena, which is situated upon the bay, lies north-east of the island.

The defendant at the time of the grievances complained of was the lessee, and in possession of Sulphur island. He had been for some time engaged in the business of fishing in Thunder bay in front of lands owned or leased by him, and claimed that by virtue of his lessor being the owner of Sulphur island, he was the proprietor of the soil under the water in front thereof, and controlled the right of fishing in those waters by means of trap-nets, which cannot be used without the aid of stakes or poles driven in the ground. The plaintiff is also a fisherman, and sometime in June, 1882, caused stakes to be driven in Thunder bay, commencing about a mile east of Sulphur island, and thence continued eastwards for a distance of about 160 rods, for the purpose of affixing thereto trap-nets for fishing. The depth of water where the stake nearest the island was driven was 26 or 27 feet, and where those where driven the furthest from the island the depth of water was 36 or 37 feet. The defendant also proceeded to drive stakes near those driven by the plaintiff, and notified the plaintiff to take up and remove those placed there by him, but he refused, and the defendant pulled them up, and they floated away and were lost. The plaintiff brought trespass, and recovered under the charge of the court, which is given in full in the margin. ^[1]

There are two questions presented by this record: (1) Is the owner of land bounded by the waters of the great lakes, like Lake Huron, entitled to the rights of a riparian proprietor in front of his lands, to the center of the lake? (2) If so, do such rights confer upon such riparian proprietor the exclusive right of fishing in the waters in front of his land, by means of stakes or other attachments to the soil under water?

The plaintiff bases his right of recovery upon the public right of fishing in the great lakes. By the common law, all persons have a common and general right of fishing in the sea, and in all other navigable or tide waters; and no one can maintain an exclusive privilege to any part of such waters, unless he has acquired it by grant or prescription.

In the case of Carter v. Murcot, 4 Burr. 2162, it was declared that in rivers not navigable,--that is, in rivers not affected by the tides,--land-owners had the right of fishing on each side, commonly, to the middle of the stream, and in navigable tide-water rivers the right was prima facie in the king, and was public, but a private person may have an exclusive right by grant or prescription.

The decisions in England have been uniformly to the effect that the owner of land bordering on streams not affected by the flow and reflow of the tides, whether in fact navigable or not, has the exclusive right of fishing in front of his land to the middle of the stream. The later cases are fully as strong as the earlier. In the case Malcomson v. O'Dea, 10 H.L.Cas. 618, the court said: "The soil of navigable tidal rivers, like the Shannon, so far as the tide flows and reflows, is prima facie in the crown, and the right of fishing, prima facie in the public. But for Magna Charta, the crown could by its prerogative exclude the public from such prima facie right, and grant the exclusive right of fishing to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by act of the crown not later than Henry II."

In Murphy v. Ryan, 2 Ir.R.C.L. 143, it was held that the public could not acquire, by immemorial usage, any right of fishing in a river in which, though navigable, the tide did not ebb and flow; and to the same effect is Hargreaves v. Diddams, L.R. 10 Q.B. 582.

In Johnston v. Bloomfield, 8 Ir.R.C.L. 68, (Exch.Cham.,) it was held that the public has not, of common right, a common of fishery in large inland waters, in which the tide does not flow and reflow, although they are navigable.

A case decided in the house of lords in 1878, and cited as Bristow v. Cormican, 3 App.Cas. 641, was where the plaintiff brought trespass against the defendant to establish a right to a several fishery in Lough Neagh. Defendant alleged that the several fishery and the lands covered with water were, and from time immemorial had been, part of an inland sea, called Lough Neagh, and that said inland sea had been a common or public navigable inland sea, and that, in the part thereof mentioned, every subject of the realm had, and of right ought to have, the right and privilege of fishing, and that in the exercise of that right he committed the trespass complained of. The plaintiff claimed the right to fish through a royal grant from Charles II., in 1660, and another in 1661 of the right to fish in Lough Neagh. No evidence had been given of forfeiture, or escheat, or other source of title in the king. Lord CAIRNS said: "The crown has no de jure right to soil or fisheries of a lough like Lough Neagh." He then proceeds to describe Lough Neagh as "the longest inland lake in the united kingdom, and one of the largest in Europe. It is from fourteen to sixteen miles long, and from six to eight miles broad. It contains nearly 100,000 acres; but, though it is so large, I am not aware of any rule which would prima facie connect the soil or fishings with the crown, or disconnect them from the private ownership either of riparian proprietors or other persons." And Lord BLACKBURN said: "The property in the soil of the sea, and of estuaries, and of rivers in which the tides ebbs and flows, is prima facie of common right vested in the crown. It is clearly and uniformly laid down in our books that, where the soil is covered by the water forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land, and there is no case or book of authority to show that the crown is of common right entitled to land covered by water where the water is not running water forming a river, but still water forming a lake. *** I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad filum aquae, should apply to a lake, is a different question. It does not seem very convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked onto his frontage. But no question arises in this case as to the rights of the riparian proprietors among themselves, for no title is made by either party through any one as riparian owner. It is, however, necessary to decide whether the crown has of common right prima facie title to the soil of a lake. I think it has not."

It is evident from the foregoing citations that the question in England, as to riparian...