Ne-Bo-Shone Ass'n v. Hogarth

• Decision Date: 14 January 1936
• Docket Number: No. 7032.,7032.
• Citation: 81 F.2d 70
• Parties: NE-BO-SHONE ASS'N, Inc., v. HOGARTH et al.
• Court: U.S. Court of Appeals — Sixth Circuit

81 F.2d 70 (1936)

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

No. 7032.

Circuit Court of Appeals, Sixth Circuit.

January 14, 1936.

Stuart Knappen, of Grand Rapids, Mich., and W. C. Moore, of Toledo, Ohio (Frank S. Lewis, of Toledo, Ohio, Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., and Doyle & Lewis, of Toledo, Ohio, on the brief), for appellant.

Willis B. Perkins, Jr., of Grand Rapids, Mich., and E. A. Bilitzke, of Lansing, Mich., (Willis B. Perkins, Jr., and Dorr Kuizema, both of Grand Rapids, Mich., and Harry S. Toy, of Detroit, Mich., on the brief), for appellees.

Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The appeal challenges the existence of public fishing rights in a Michigan stream running through private property; the stream having at one time been used for the floating of logs, but not now so used and not otherwise navigable. The appellant is a private fishing club organized as a nonprofit corporation under the laws of Ohio. Some of the defendants are private citizens of Michigan who desire to fish in the stream, and others are state officers, including the director of conservation, members of the conservation commission, and the Attorney General of the state and his assistants. The suit was by bill in equity, which sought a declaration of the plaintiff's rights and an injunction against interference therewith, and the appeal is from a decree dismissing the bill.

The stream here involved is known as Pine river. It winds its tortuous way for approximately one hundred miles through four Michigan counties to the Manistee river. For about seven miles it passes through plaintiff's land on both its banks. These lands were acquired on August 24, 1925, by the Ne-Bo-Shone Association, then a voluntary association, but of which the present corporation is the successor, with identical membership. The average depth of the river on plaintiff's property is normally about two and a half feet, while its average width is about fifty feet. The river has never been navigable for boats, but beginning about the year 1880 it was used extensively for floating logs to mills along its course. This continued for a period of from thirty to forty years, until the timber became exhausted. Its principal later use was and still is as a trout stream. It is obstructed at many places by log jams, stubs, and snags, and, for the purpose of providing additional fish cover, the plaintiff has added materially to such obstructions in that portion of the river which flows through its property.

The Supreme Court of Michigan, in the case of Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115, involving a stretch of the river through lands adjacent to those of the plaintiff, decided on December 8, 1926, in an action of trespass, to which the present litigants were not parties, that Pine river was a navigable stream, and that the public had a right to fish therein. Attempts were thereafter made by fishermen to forcibly remove log jams and other obstructions in the river on the plaintiff's property, but were prevented by guards. Both sides then submitted grievances to the Michigan conservation department, with the result that a notice was served upon the plaintiff that obstacles in the river must be removed, and a notice was given to the public that it had a right to remove the obstructions and to the protection of the state in so doing. The action below followed.

It is not now disputed that the case of Collins v. Gerhardt, supra, declares the law of Michigan with respect to the navigable and public character of Pine river. It is, however, asserted that the plaintiff's right to its exclusive use for fishing as it passes through its property became vested prior to the Michigan decision, that the law of Michigan with respect to streams of this character had been settled by repeated decisions of the Michigan Supreme Court so as to become a rule of property, and therefore, under the doctrine of Kuhn v. Fairmont Coal Co., 215 U.S. 349, 30 S.Ct. 140, 143, 54 L.Ed. 228, is to be now applied notwithstanding the later decision of the Michigan court.

The question to be decided necessitates a careful review of Michigan decisions respecting the rights of the public in navigable streams, and whether navigability is determined by the capacity of a stream for the floating of logs, though its use for that purpose has been abandoned. In Michigan, title to the thread of a stream is in the adjoining landowner. Lorman v. Benson, 8 Mich. 18, 77 Am.Dec. 435. It follows that where, as here, one owns the land on both sides of the stream, he has title to the bed of the stream. This is not disputed. The issue is as to whether such title is burdened with a public servitude in respect to fishing. It is urgently insisted that, notwithstanding some of the earlier decisions of the Michigan Supreme Court, notably Moore v. Sanborne, 2 Mich. 519, 520, 59 Am.Dec. 209, the law had been settled by a continued series of Michigan decisions to the end that, where a stream is not navigable in the usual sense so as to be used for transportation of goods and passengers by vessels, the owners of the bed have the exclusive right to fish therein, that, even though a public easement exists for the purpose of floating logs, such easement includes no rights other than those necessary and incidental to such log movement, and that, when waters become unfitted for public use and cease to be so used, the easement ceases to exist, as in the case of an abandoned highway on land. It is just as insistently urged, on the other hand, that not only is there no such rule of property in streams of this character as that for which the plaintiff contends, but that the rule is clearly settled by Michigan decisions that the capacity of a stream for floating of logs determines its navigability, and that the right of the public to fish therein follows. The District Judge took the view that floatability is not a test of navigability, but that both are equally criteria of public waters, and, if waters are public for any purpose, they are public for all purposes.

The solution of the problem is not unattended with difficulty, and we are not aided by an analysis of Michigan cases either in Collins v. Gerhardt or in the decision below. In Moore v. Sanborne, supra, the principal question for decision was whether a certain Pine river (not the one here involved) was a public highway. As the river in question was a small stream and of but limited capacity for floatage, the court held the question to be fairly and distinctly presented as to what streams are to be regarded as public highways of the state so as to be under the servitude of the public interest. "The true test, therefore, to be applied in such cases," said the court, "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." The decision of the Maine court in Brown v. Chadbourne, 31 Me. 9, 50 Am.Dec. 641, was considered directly apposite, and was adopted with entire approval. In that case it had been held that it was not necessary, in order to determine a stream a public highway, that it should have a capacity for floatage in its natural and ordinary stage at all seasons of the year, but that the distinguishing criterion "consists in its fitness to answer the wants of those, whose business requires its use."

In Middleton v. Flat River Booming Co., 27 Mich. 533, 534, Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, and Thunder Bay Booming Co. v. Speechly, 31 Mich. 336, 337, 18 Am.Rep. 184, the Michigan court held that riparian owners could complain against the driving of logs which interfered with and destroyed the usefulness of their mills and dams or which flooded their lands, and, though in these...