Lorman v. Benson

• Decision Date: 09 January 1860
• Citation: 8 Mich. 18
• Court: Michigan Supreme Court
• Parties: Charles A. Lorman v. Henry E. Benson

8 Mich. 18

Charles A. Lorman v. Henry E. Benson

Supreme Court of Michigan

January 9, 1860

Heard November 29, 1859; November 30, 1859 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case reserved from the circuit court for the county of Wayne, as follows:

"This was an action of trespass vi et armis, brought by Lorman against Benson. Plea, the general issue, with notice of license.

"The cause was tried by the court without a jury. "From the evidence adduced on the trial the court find the following facts:

"At and before the time of the alleged trespass, one Anthony Dudgeon was the owner in fee of certain premises above the city of Detroit, and fronting upon the Detroit river, which was the locus in quo of the said trespass. On or about the 15th of November, 1857, he leased the same by a lease in writing to the plaintiff, therein describing the same as bounded in front by the Detroit river, for the term of five years; and the plaintiff thereupon entered immediately into possession, and erected an ice-house upon the premises, which ice-house was fronting upon and near to the waters of the Detroit river. Prior to the execution of this lease Dudgeon had given the defendant, Benson, a parol license to erect a boom near to the shore on the river front of the premises, and between said shore and the channel bank of said river (said channel bank being a term applied to a place in said river nearer to the main bank than the center of the river, and about 700 feet from the shore, where the water becomes some feet deeper than it is nearer to the shore), and to maintain and use the same for the purpose of keeping and securing saw logs therein, until he (Dudgeon) should desire to use the river front for other purposes, or should lease the premises.

"When the plaintiff took possession of the premises, under his lease from Dudgeon, the entire river front was occupied and obstructed by a boom, and a large quantity of logs therein, which had been placed there by the defendant in pursuance of this license from Dudgeon. The plaintiff immediately gave the defendant notice to remove the same, claiming that the defendant's right to maintain the same there, under the license from Dudgeon, was terminated; that he, the plaintiff, as the lessee of the premises, was entitled to have the river front free from any such obstruction, in order that he might conveniently gather ice there to fill his ice-house during the then coming winter.

"The defendant refused to remove the said boom and logs as required, but continued to maintain the same in the place mentioned throughout the winter, and this is the trespass complained of by the plaintiff.

"In consequence of the river front being so obstructed by the said boom and logs, the plaintiff was unable to gather ice there during the winter of 1857 and 1658, but was compelled to gather his ice with which to fill his ice-house at a much greater distance from said ice-house, to float the same by circuitous and inconvenient routes to said ice-house, at considerably greater expense than would have been necessary if the river front of the premises had been open and unobstructed by defendant's said raft of logs and boom, and he sustained damages in consequence of said obstruction to the amount of .

"Upon these facts the following questions arise:

"1st. Had the plaintiff, as lessee from the owner in fee of the said premises fronting on Detroit river, any such right to the use and enjoyment of the river front between the shore and the channel bank of said river, as entitled him to maintain the present action against the defendant for obstructing the same, with his boom and saw logs, in the manner above mentioned?

"2d. Has the defendant a legal right to float and boom logs in any part of the Detroit river, in a reasonable manner, so as not to interfere with navigation in summer and travel in winter?

"3d. Is trespass or case the appropriate form of remedy?

"4th. Have riparian proprietors on the Detroit river a right of property in the soil under the water, or in the ice, or the exclusive right of taking the same in front of the premises to the middle of the stream?

"5th. Are the damages claimed by the plaintiff sufficiently certain and direct to be allowed?

"Which questions, being deemed of sufficient importance, are hereby reserved for the opinion of the Supreme Court thereon."

Geo. E. Hand, for plaintiff, cited:

Hale de Jure Maris, Ch. 1; 3 Kent 427; Wool. on Wat., 1, 40 to 46; Shult's Aq. Rights, 58, 88, 106, 138; Ang. on Watercourses, 605; Ang. on Tide Waters, 75; 6 Cow. 518; 2 Conn. 483; 4 Burr. 2164; 12 Mod. 510; 1 Mod. 105; 3 How. 227; 20 Johns. 99; 26 Wend. 404; 5 Pick. 201; 2 Cush. 190; 3 N. H., 321; 2 N. H., 369; 31 Me. 9; 3 Greenl. 248; 3 Rand. 33, 38; 3 Ohio 495; 11 Ohio 311; 16 Ohio 540; 3 Blackf. 198; 3 Scam. 510; 5 Gilm. 548; 2 Wis. 308; 4 Wis. 486; 3 S. & M., 366; 4 Mason 397; 1 Halst. 1, 67; 5 H. & J., 195; 1 Rand. 417; 14 Mass. 149; Taylor, 176; 5 Wheat. 374; 13 Wend. 356; 18 Barb. 277; 4 Mich. 322; 9 E. L. & Eq., 513.

T. Romeyn, on same side:

If the Detroit be viewed as a river, in the sense of the common law, then the argument already made exhausts the subject.

But if as a strait, and the rights of the owners of land on its borders are like those of the owners of lands on the shores of the lakes which it connects (see Kingman v. Sparrow, 12 Barb. 201), it then becomes necessary to ascertain what are the rights of riparian owners upon these northwestern lakes, and the straits connecting them.

1. The United States, as a sovereignty, have no right of soil, or jurisdiction, in premises situated like the locus in quo: Pollard's Lessee v. Hagan, 3 How. 312.

The title to the land under water, on the sale of the contiguous upland, either remains in the United States, or is vested in the states in which it lies, as an incident to the sovereignty, or it passes to the grantee of the upland as an incident to it.

If all the waters covering the land be viewed as not navigable, according to the recognized legal meaning of that term, then, beyond question, the lands under them pass from the United States to the grantee of the uplands bordering on them, as an incident to such grants.

If viewed as navigable waters, then the lands under them either passed to the grantees of the uplands bordering on them, or have become the property of the respective states within which they lie, as incidents to their sovereignty.

2. The title to, and property in, such lands, are not in the state.

There is a clear and settled meaning, at common law, attaching to the term "navigable," in connection with the extent of the rights of riparian proprietors. In this connection, it is strictly limited to the sea, and to waters within the ebb and flow of the tide. On these, the rights of the riparian proprietor (in the absence of a grant from the crown) extend only to high water mark.

In the Atlantic states the rule is similar, though locally modified by statute or usage. But, on other than tide-waters, according to the English common law, and the law of most of the states, the title of the riparian proprietor extends beyond the water line, and includes the adjoining lands under water.

The adjudications, in all the states formed out of the northwestern territory and bordering on the lakes, concur in deciding that a grant by the United States of lands bordering on the meandered stream or body of water, carries with it a title to the adjacent lands under water.

In Michigan the question has never been before the Supreme Court directly, but I view the rule in practice as well understood and settled: Norris v. Hill, 1 Mich. 202; Moore v. Sanborn, 2 Mich. 519.

For decisions in other states, see Grant v. Mathews, 3 Ohio 495; Lessee of Blanchard v. Porter, 11 Ohio 138; 5 Ohio 320; Ibid., 410; Walker v. Board of Pub. Inst., 16 Ohio 545; Doe v. Hildreth, 2 Ind. 282; Jones v. Peckham, 2 Wis. 315; Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Haven, 5 Gilm. 548; Walker v. Shephardson, 4 Wis. 486.

The Supreme Court of the United States recognize the same rule: Brown v. Hager, 21 How. 320.

There is no difference whatever in principle between rivers like the Mississippi, the Ohio, the Milwaukee near its mouth, the Illinois, and the lakes or their connecting straits. And the adjudications in the northwestern states, and in the courts of the United States, do not refer to, nor imply any.

In the case of Genesee Chief v. Fitzhugh, 12 Howard, 450, the decision avers that the lakes and rivers are both navigable, within the meaning of the grant of admiralty jurisdiction to the general government, and both are placed upon the same footing. It does not touch the question of riparian ownership or rights. But in the reasoning and the conclusion, it is evident that the court viewed a great lake and a great river as alike in legal character.

There being in fact no distinction at common law between the sea and tide-water rivers, as to admiralty jurisdiction or riparian rights, and there being no distinction as to admiralty jurisdiction or public character between the lakes, and the straits connecting them, and the great navigable rivers of the west, it is illogical and unwarrantable for the court to make such distinction between the rights of riparian owners on the great rivers and those on the lakes.

This question has received a practical construction in the north western states, in favor of the rights of the riparian proprietor to lands under shallow water, adjacent to the main land, and not required nor suitable for navigation; and should be considered as settled.

Independent of the general rules as to the effect of usage and custom, it is certain...