People v. Kirsch

• Decision Date: 10 November 1887
• Citation: 67 Mich. 539,35 N.W. 157
• Court: Michigan Supreme Court
• Parties: PEOPLE v. KIRSCH.

35 N.W. 157

67 Mich. 539

PEOPLE v. KIRSCH.

Supreme Court of Michigan

November 10, 1887

Appeal from circuit court, Ottawa county.

Moses Taggart, Atty. Gen., and Walter I. Lillie for the People.

V.W Seely, for respondent.

SHERWOOD J.

In this case the respondent was convicted upon a complaint made before a justice of the peace of the city of Grand Haven, in the county of Ottawa, charging him with having on the ninth day of May, 1887, at the village of Spring Lake, in said county, "caught and taken fish with a fyke net, so called, it being a species of continuous net, in the waters of Grand river, in this state, and not being in Lakes Michigan, Superior, Huron, St. Clair, the St. Clair and Detroit rivers, Lake Erie, and the harbors connected with said lakes, and not being a private fish-pond, contrary to the form of the statute in such case made and provided." The cause was appealed to the Ottawa circuit before Judge ARNOLD, and tried with a jury, and who, at the request of counsel for the people, directed a verdict against the respondent. He now asks a review in this court.

The facts were all stipulated by counsel for the parties, and, as they stand in the record, are as follows: "(1) That the fishing alleged and set forth in the complaint and warrant herein, occurred within the corporate limits of the village of Spring Lake, on Grand river, in said county of Ottawa, and at the time and with the nets specified in said complaint and warrant. That said nets were set on the north side of said river. That between the mouth of Grand river and the point where said nets were set, there are two bridges crossing said river, one a railroad bridge, and the other a turnpike bridge, both being draw or swing bridges. That there are saw-mills located and operated on the banks of said river east of the point where said nets were set, as follows: One at Nortonville, one at Spoonville, one at Eastmanville, and one at Jenisonville. (2) That lake vessels are in the habit of going to Nortonville and Spoonville for cargoes of lumber; and in going to said saw-mills said vessels are towed up. That the current of said river, at its mouth, runs out into Lake Michigan twenty-five rods beyond the piers. That the piers at the mouth of said river are about thirty-two hundred feet long, but do not extend up said river to the point where said nets were set, and do not extend within two miles of the same. (3) That said draw or swing-bridges are usually closed, and are only open when vessels pass up and down said river. (4) That there is a river steam-boat, known as the 'Barrett,' running between Grand Haven and Grand Rapids. (5) That vessels do not sail up said river, but are towed up. That it is not the custom of vessels coming in from Lake Michigan to go further up the river to tie up or lay up than three-quarters of a mile from the mouth, unless they are towed up, or go up for freights, except said Barrett, and that does not come from Lake Michigan. (6) That it is three miles from the mouth of said river to the point where the nets were set. That the officer, who made the arrest in this case, was legally authorized to do so, and that the defendant did the fishing complained of." Upon submitting the foregoing stipulation of facts, counsel for respondent requested the court to direct the verdict in his favor, and stated the grounds for his motion as follows: "(1) That Grand river is a common-law harbor from its mouth to Grand Rapids, or, in other words, as far up the river as lake vessels may be navigated; and therefore the defendant is not guilty. (2) That Grand river, to the extent and point and including the place where the fishing in this case took place, is a statutory harbor, and therefore the defendant is not guilty. (3) That by reason of act No. 5, Laws 1883, the defendant was permitted to fish in the manner alleged, and therefore he is not guilty. (4) That act No. 10, Laws 1885, is repealed by implication by act No. 61, of the same year, and therefore the defendant is not guilty. (5) That act No. 10, Laws 1885, is unconstitutional and void, and therefore the defendant is not guilty."

The exception taken to the ruling of the court in directing the verdict against the respondent instead of for him, raises the only question in the case. A harbor, in its usual and...