People v. Silberwood

• Decision Date: 08 July 1896
• Citation: 110 Mich. 103,67 N.W. 1087
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SILBERWOOD.

67 N.W. 1087

110 Mich. 103

PEOPLE v. SILBERWOOD.

Supreme Court of Michigan

July 8, 1896

Exceptions from circuit court, Monroe county; Edward D. Kinne, Judge.

Obed Silberwood was convicted of a crime, and excepts. Affirmed.

George M. Landon, for defendant.

Fred A Maynard, Atty. Gen., and Willis Baldwin (of counsel), for the People.

MOORE J.

This is an action to test the validity of Act No. 112, Pub. Acts 1895, which was intended to set aside certain submerged lands in Lake Erie and Detroit river, lying east of and adjacent to the surveyed lands in Monroe and Wayne counties, for a distance extending one mile into Lake Erie, for public shooting grounds, to make it unlawful to cut and destroy the rushes and other submarine vegetation on such submerged lands, and to provide a penalty therefor, which act provided that such reservation or dedication should not interfere with or detract from any right or privilege of any person or the public to fishing, and that such water should be free for purposes of navigation, provided, also, that said lands were owned by the state. Defendant was arrested in September 1895, for cutting rushes on submerged lands adjacent to the property of the Monroe Marsh Company. He admitted these rushes were cut, not for the purposes of navigation, or of fishing, or in the enjoyment of fishing privileges. Defendant was working by direction of one Sterling, trustee of the marsh company.

The case of the people is based upon the following contentions That the state is the owner of the fee of the land beneath the waters of the Great Lakes; that the vested right of the riparian owner on the Great Lakes is that of ingress and egress, by navigation, to and from his premises, with the rights of wharfage, etc.; that a dedication of a portion of the Great Lakes as a public hunting ground (subject, always to the rights of navigation) is a valid dedication. The defendant contends that Mr. Sterling, as trustee of the marsh company, has valuable rights of property in the water, and the lands thereunder, in front of his lands; that, as riparian owner, he is entitled to any and every use he can make of the land under the water, and next to his surveyed lands, not inconsistent with the public right of navigation; that the right of fishing is a right of property and not of privilege, and that this right of property cannot be summarily taken from him; that he had the right to cut the rushes to protect his shore or his fishing interest, or to prevent the flight of wild ducks being diverted from his marsh lands, or for any reason satisfactory to himself in the lawful enjoyment of his property; that the state owned none of these surveyed lands, and that the marsh company is the owner of the portion of the land under the water to the center of Lake Erie; that the act in question, arbitrarily, without notice or compensation, seeks to deprive him of the enjoyment of his property rights, and is therefore unconstitutional and void. The case comes here on error.

The defendant insists that the owners of land lying adjacent to Lake Erie in the county of Monroe, as such riparian proprietors, own the land to the center of that Great Lake subject to the rights of navigation. If he is right in this contention, he was improperly convicted; otherwise, his conviction should stand. In support of his view of the law he cites a great many Michigan cases, and especially Richardson v. Prentiss, 48 Mich. 88, 11 N.W. 819; Harrington v. City of Port Huron, 86 Mich. 46, 48 N.W. 641; Lumber Co. v. Peters, 87 Mich. 498, 49 N.W. 917. At the common law, all tide waters were navigable, and nontidal waters were nonnavigable. The right to fish in navigable waters was public, but in nonnavigable waters it was private; the right depending not upon the ownership of the shore, but upon the ownership of the soil under the water. Lincoln v. Davis, 53 Mich. 375, 19 N.W. 103. The English common law made the ebb and flow of the tide the legal test of its navigability, for it was in fact the practical test. The conditions in this country, however, are very different. We have hundreds of miles of great rivers, and vast inland seas, wholly uninfluenced by the tides, upon which float vast fleets of vessels; so that the common-law doctrine in relation to tide waters is not accepted in this country, because not applicable to our circumstances. One of the earliest decisions in this state in which the principles involved in this case are discussed is La Plaisance Bay Harbor Co. v. Council of City of Monroe, Walk. Ch. 155. In that case the court held: "The bed of the stream is public property, and belongs to the state. This is the case with all meandered streams, no part of them being included in the original survey; and the common-law doctrine of usque ad filum aqu� is not applicable to them. The public owns the bed of this class of rivers, and is not limited in its right to an easement or right of way only. So, with regard to our Great Lakes, or such parts of them as lie within the limits of the state; the proprietor of the adjacent shore has no property whatever in the land covered by the water of...