People v. Hulbert

• Decision Date: 24 June 1902
• Citation: 91 N.W. 211,131 Mich. 156
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HULBERT.

91 N.W. 211

131 Mich. 156

PEOPLE v. HULBERT.

Supreme Court of Michigan

June 24, 1902

Error to circuit court, Calhoun county; Clement Smith, Judge.

Steven S. Hulbert was convicted of crime, and brings error. Reversed.

S. S Hulbert (G. W. Mechem, of counsel), for appellant.

Horace M. Oren, Atty. Gen., and Jesse M. Hatch, Pros. Atty. (O. S Clark, of counsel), for the People.

MOORE J.

Goguac Lake is a natural body of private water wholly within the township of Battle Creek, which township adjoins the city of Battle Creek. It has an area of about 360 acres, and varies in depth from nothing at the shore line, to 80 feet. The shore line of the lake is about 5 miles in all, and at the time of the alleged offense was owned as follows: About 200 feet by the city, upon which is its pumping station, and the rest of the 5 miles is owned and occupied by farmers, pleasure resort proprietors, and summer cottagers, the latter holding some by fee and others by lease from the farmer owners. At the north end of the lake is a pleasure resort, and scattered around the lake shore are between 40 and 50 cottages, occupied during the summer season by the respective owners, or persons to whom they rent. The lake is accessible from the city by a good highway, a fine bicycle path, and an electric road. It is the only nearby pleasure resort for the citizens of Battle Creek. There are a large number of rowboats, sailboats, and several steamers upon the lake. The riparian uses to which the various owners have put the water are all the uses which farmers and summer cottagers would naturally exercise viz., fishing, wading, bathing, swimming, washing sheep watering cattle, pigs, and horses, washing vehicles and clothing, cutting ice, boating, sailing, etc. In the summer of 1884 the respondent first occupied premises at the lake. In 1884, 1885, and 1886 he occupied tents within a few feet of where he erected a cottage in 1887, since which time he has continuously occupied said cottage. Beginning with 1884, he has occupied the premises for the camping season each year, continuously, except two, and every season has entered the water to swim. His investment in cottage and appurtenances is several hundred dollars. In 1886 the city proposed a system of waterworks, and at some time thereafter determined to take the city water supply from Goguac Lake. For that purpose the city bought a piece of land fronting on the lake at its northerly end, having a shore frontage of about 200 feet, and erected thereon a pumping station. The system is to take the water from the lake by means of an inlet pipe 16 inches in diameter, which runs into the lake. The water is pumped to a stand pipe, which is upon a rise of ground a short distance from the lake, and thence is distributed through pipes of 4 to 16 inches within the city limits, the piping now amounting to between 30 and 40 miles. The water is used by the city, and sold to the people, and is the only water system. The lake is about 1 1/2 miles long, and is fed by subterranean springs. There is no outlet except the intake pipe. From the cottage of the respondent, by water, to the intake pipe, is about three-quarters of a mile. Quite early in the use of the lake for municipal purposes, the city pumped out so much water as to lower the lake. Litigation resulted, and the city then for certain months in the year turned into the lake the water from Minges brook, so that the water is not now lowered by the city, but the effect of turning in the water from the brook is to make the water harder than it was before. The city, although given ample power by the charter to condemn lands and easements for a water supply upon paying due compensation for the rights taken, did not exercise that right, but, because it was a riparian proprietor, claimed the right to use the water of the lake, and that the other riparian proprietors must do nothing having a tendency to pollute the waters of the lake. The respondent, having first notified the board of public works of his intention to do so, made an entry into the waters of the lake on July 25, 1897, by wading on his own leased land under water, and swimming in the water flowing over said land. This he did without malice, and to afford a test case. He maintained that the difference between the exercise of the ancient common-law riparian right of bathing and swimming and those of washing sheep, watering cattle and horses, running a water wheel for a mill, etc., was a difference only in kind and degree, and that all were common-law rights incident and appurtenant to the ownership or lawful occupation of land upon an inland lake in this state. It was the claim of the people that this act of swimming polluted the sources of the water supply, and was criminal. The respondent was informed against, a trial was had, and the charge of the court was such that a conviction followed. The case is brought here by appeal.

Upon the trial several expert witnesses were sworn, who testified that germs might have been thrown off the body of the respondent while swimming, which would produce disease, and that some of those germs might reach the intake pipe, and through it the consumers of the water, and be a source of ill health. It is not shown any such germs ever did reach the intake pipe, or that any illness in Battle Creek could be traced to the use of the water taken from this lake. A great many interesting questions are raised by the record and presented in the briefs of counsel, but, in our view of the law, it will be unnecessary to discuss many of them. The first question calling for consideration is, was the act of respondent unlawful? It is a matter of common knowledge that in this state the riparian owners whose lands border upon lakes, and through whose lands streams run, are in the habit of using the streams and lakes by allowing their domestic animals to drink therein, and by drawing therefrom what water may be needed for domestic purposes; and themselves and their families resort to the water of the streams and lakes for the purpose of bathing at suitable seasons of the year. It is also known that, as a rule, the supply of drinking and cooking water is obtained from springs or wells. Will the fact that a lower riparian proprietor decides to use the water of the stream of lake for drinking and cooking purposes, make a reasonable use of the water by the upper riparian owners for the purposes of watering cattle and bathing purposes unlawful because to do so has a tendency to make the water less desirable for drinking and cooking purposes? Can the upper riparian proprietors be deprived of such reasonable and ordinary use when the lower proprietor is a city having a large population, by invoking the police power, and without compensation? It will readily be seen these are very important questions. The diligence of able counsel has failed to call our attention to a case on all fours with the one at bar, but the principles involved are not new.

In Wood v. Waud, 3 Exch. 748, Pollock speaking for the court, said: 'We agree with the learned counsel for the plaintiff in his exposition of the principles which regulate the law as to natural streams, which are fully considered, and placed on their right footing, in the case of Mason v. Hill, 3 Barn. & Adol. 306; Id., 5 Barn. & Adol. 1; and the authorities there cited. Flowing water, as well as light and air, are in one sense 'publici juris.' They are a boon from providence to all, and differ only in their mode of enjoyment. Light and air are diffused in all directions, flowing water in some. When property was established, each one had the right to enjoy the light and air diffused over, and the flowing water through, the portion of soil belonging to him. The property in the water itself was not in the proprietor of the land through which it passes, but only the use of it, as it passes along, for the enjoyment of his property, and as incidental to it. The law is laid down by Chancellor Kent, in 3 Comm. 439, thus: 'Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water. * * * He had no property in the water itself, but a simple usufruct as it passes along.' 'Aqua currit et debet currere,' is the language of the law; and Mr. Justice Story, in Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312, cited in Gale & W. Easem. p. 131, lays down the same law. In the judgment of Lord Chief Justice Tindal in the case of Action v. Blundell, 12 Mees. & W. 324, he treats the right to waters flowing on the surface as arising from the acquiescence of neighboring owners, though he also quotes the judgment of Mr. Justice Story, above referred to, which treats the right as an incident to property; for Mr. Justice Story says: 'The natural stream, existing by the bounty of providence for the benefit of the land through which it flows, is an incident annexed by operation of the law to the land itself.' Mr. Justice Whitelock, also, in Sury v. Pigot, Poph. 169, and Crew, C.J., Id., 172, and Lee, C.J., in Brown v. Best, 1 Wils. 174, treat the right as arising ex jure naturae; and consequently it is not extinguished, as an easement in alieno solo would be, by unity.' * * * In considering this question, it is to be assumed that the plaintiffs' right is established to the use of the water. It is said that the true rule on this subject is laid down by Chancellor Kent (3 Comm. 439, 440) that streams are meant for the use of men, and that it would be unreasonable, and contrary to the universal consent of mankind, to debar each riparian proprietor from the application of the water to domestic, agricultural, or manufacturing purposes, provided the use of it be made so as to work no material injury or annoyance to his neighbor, and though...