Ne-Bo-Shone Ass'n, Inc. v. Hogarth, 2605.

• Decision Date: 17 February 1934
• Docket Number: No. 2605.,2605.
• Citation: 7 F. Supp. 885
• Parties: NE-BO-SHONE ASS'N, Inc., v. HOGARTH et al.
• Court: U.S. District Court — Western District of Michigan

7 F. Supp. 885

NE-BO-SHONE ASS'N, Inc., v. HOGARTH et al.

No. 2605.

District Court, W. D. Michigan, S. D.

February 17, 1934.

Doyle & Lewis, of Toledo, Ohio, and Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., for plaintiff.

Patrick H. O'Brien, Atty. Gen., Gerald K. O'Brien, Deputy Atty. Gen., Judson E. Richardson, Asst. Atty. Gen., and Willis B. Perkins, Jr., Dorr Kuizema, and Robert S. Tubbs, all of Grand Rapids, Mich., for defendants.

RAYMOND, District Judge.

The substantial purpose of this action is to determine whether or not the general public has the right to take fish from that portion of Pine river which traverses plaintiff's property. Pine river is a rapid and tortuous stream, approximately 100 miles in length, which flows in a northwesterly direction through four Michigan counties and empties into the Manistee river. From August, 1925, a large portion of the lands through which the river flows was owned by the Ne-Bo-Shone Association, organized as a voluntary association. On November 7, 1932, this voluntary association became a corporation under the laws of Ohio, for the purpose, as stated in its articles of incorporation, of "acquiring by purchase, lease or otherwise, real estate for club houses, for a fishing and hunting preserve, and for owning, improving and holding the same for accommodation, pleasure and entertainment of its members." The evident intention was to maintain a private fishing preserve through ownership of both banks of the river. It appears from the evidence that the corporation did become the owner of the land on both banks for a distance of about seven miles. The average depth of the stream on plaintiff's property under normal conditions is about two and a half feet, while the average width is about fifty feet, these measurements varying materially in different parts of the stream and in different seasons. It does not appear that the river has ever been navigable for boats for commercial purposes. Beginning about the year 1880, the stream was used extensively, both with and without the aid of dams, for floating logs to various mills along its course. This continued for a period of from thirty to forty years, with gradually diminishing use as the timber along the banks became exhausted. The principal later use of the river was and still continues to be as a trout stream. For many years it has been obstructed at many places throughout its length by log jams, stumps, snags, stones, and ripples, especially at the numerous sharp bends. For the purpose of providing additional fish cover and to improve the stream for trout fishing, and also for the purpose, to a very considerable extent, of preventing navigation thereon and the free passage of fishermen and boats up and down the river, plaintiff has materially added to the obstructions already in that portion of the river to which it claims title.

Subsequent to the decision of the Supreme Court of Michigan in the case of Collins v. Gerhardt, 237 Mich. 38, 211 N. W. 115, holding, in an action for trespass, that a portion of Pine river which traverses lands immediately adjacent to those owned by plaintiff is legally navigable and public, difficulties arose between guards employed by plaintiff and sundry individuals who insisted upon the right of the public to fish in the stream. Attempts were made by fishermen to remove by force certain of the log jams and other obstructions. This was prevented by the guards. Both sides to the controversy presented petitions to the Michigan conservation department for action. An investigation by the Attorney General ensued which resulted in the service of notice upon plaintiff that obstacles in the river must be removed by November 15, 1932, and in advice to the public that it had the right to remove obstructions and to protection by the state in so doing. Plaintiff thereupon brought this action to enjoin the Michigan conservation department, the Attorney General of the state, and individuals who had threatened action from taking steps to remove the obstructions.

Several of the issues raised by the pleadings are not now urged by defendants. Apparently the jurisdiction of the court, questioned upon several grounds by the pleadings, is conceded. The principal issue is whether plaintiff has the right to maintain a private fishing preserve upon its lands for the exclusive use of its members and to exclude the public from Pine river. Defendants maintain that Pine river is a navigable stream and that both under the common law and by virtue of section 6425 of the Compiled Laws of Michigan of 1929 the public has the right to fish therein. That section reads: "The People of the State of Michigan enact, 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."

There appears to be no real distinction between the statement or description by the courts of the United States of the test of navigability and by the Supreme Court of Michigan. See The Daniel Ball, 10 Wall. (77 U. S.) 557, 19 L. Ed. 999; The Montello, 20 Wall. (87 U. S.) 430, 22 L. Ed. 391; United States v. Holt State Bank, 270 U. S. 49, 46 S. Ct. 197, 70 L. Ed. 465; United States v. Utah, 283 U. S. 64, 51 S. Ct. 438, 75 L. Ed. 844; Toledo Liberal Shooting Co. v. Erie Shooting Club (C. C. A.) 90 F. 680; Harrison v. Fite (C. C. A.) 148 F. 781; Gratz v. McKee (C. C. A.) 270 F. 713; Moore v. Sanborne, 2 Mich. 520, 59 Am. Dec. 209; Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Tyler v. People, 8 Mich. 319; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184; Attorney General v. Evart Booming Co., 34 Mich. 462; White River Log, etc., Co. v. Nelson, 45 Mich. 578, 8 N. W. 587, 909; Buchanan v. Grand River, etc., L. R. Co., 48 Mich. 364, 12 N. W. 490; Burroughs v. Whitwam, 59 Mich. 279, 26 N. W. 491; Sterling v. Jackson, 69 Mich. 488, 37 N. W. 845, 13 Am. St. Rep. 405; City of Grand Rapids v. Powers, 89 Mich. 94, 50 N. W. 661, 14 L. R. A. 498, 28 Am. St. Rep. 276; Baldwin v. Erie Shooting Club, 127 Mich. 659, 87 N. W. 59; People v. Horling, 137 Mich. 406, 100 N. W. 691; Cole v. Dooley, 137 Mich. 419, 100 N. W. 561; Giddings v. Rogalewski, 192 Mich. 319, 158 N. W. 951; Winans v. Willetts, 197 Mich. 512, 163 N. W. 993; Putnam v. Kinney, 248 Mich. 410, 227 N. W. 741.

In the case of Collins v. Gerhardt, 237 Mich. 38, 211 N. W. 115, 118, the Supreme Court of Michigan reviewed many of these cases and reaffirmed the doctrine of Moore v. Sanborne, supra, by declaring all rivers navigable and public which in their natural state were capable of floating logs, boats, and rafts. Upon the record in this case, Pine river is clearly a navigable and public stream within this definition.

It was also held in the Collins Case (in accordance with the ruling in the case of Nedtweg v. Wallace, 237 Mich. 14, 208 N. W. 51, 211 N. W. 647) that the state of Michigan upon admission to the Union became vested with the title to the beds of all navigable rivers impressed with a perpetual trust for the preservation of the public right of navigation, fishing, etc., and that, whether the title of a private owner be derived by purchase and grant from the state or by patent from the United States, his title is subject to a like trust. The court said:

"From this it follows that the commonlaw doctrine, viz., that the right of fishing in navigable waters follows the ownership of the soil, does not prevail in this state. It is immaterial who owns the soil in our navigable rivers. The trust remains. From the beginning the title was impressed with this trust for the preservation of the public right of fishing and other public rights which all citizens enjoyed in tidal waters under the common law.

"Pine river is navigable. In its waters the people have the common right of fishing. The plaintiff, though owner of the soil, has no greater fishing rights than any other citizen. Their rights are equal and correlative. So long as water flows and fish swim in Pine river, the people may fish at their pleasure in any part of the stream, subject only to the restraints and regulations imposed by the state. In this right they are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain. Of course, in exercising this right people cannot go upon the uplands of riparian owners in order to gain access to the water. If they do that they are guilty of trespass. * * *

"The state may surrender the technical fee title to such lands, but it cannot unshackle them from the trust which continues no matter where the technical fee title may rest. Most of the states retain the technical fee title in themselves. This state has never by legislative action surrendered such title, but by judicial polity which has established a rule of property this court in numerous decisions has held that the riparian owner takes title to the thread of the stream. But as I have pointed out, such title is burdened with the trust, and, as I shall presently show, this court has expressly recognized such trust and unequivocally adopted the trust doctrine."

It is strenuously urged by counsel for plaintiff that the decision in Collins v. Gerhardt is not binding on this court because it overturned a rule of property under which plaintiff's rights had vested, and ignored longsettled doctrines of riparian rights which had become rules of property.

In the case of Hinde v. Vattier, 5 Pet. (30 U. S.) 398, 401, 8 L. Ed. 168, it is held that questions relating to the titles and incidents of real property are regarded as local questions, as to which the decisions of the highest state court are binding upon the federal courts. It is there said: "It would be productive of...