Pigorsh v. Fahner
| Decision Date | 25 February 1972 |
| Docket Number | No. 27,27 |
| Citation | 194 N.W.2d 343,386 Mich. 508 |
| Parties | , 3 ERC 1912, 2 Envtl. L. Rep. 20,279 Walter G. PIGORSH et al., Plaintiffs and Appellees, v. Sheldon FAHNER et al., Defendants and Appellants, and Conservation Department of the State of Michigan, Intervening Defendant and Appellant. |
| Court | Michigan Supreme Court |
Boyles & Van Orden by Richard M. Van Orden, Grand Rapids, for plaintiffs-appellees.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Asst. Atty. Gen., Lansing, for intervening defendant-appellant.
Before the Entire Bench.
Upon leave granted (383 Mich. 795) we review and affirm the respective judgments of the circuit court and of the Court of Appeals. For those judgments and the presently mentioned factual findings of both courts, see 22 Mich.App. 108, 177 N.W.2d 466.
Decisions establishing the 'rule of property' 1 which of right control disposition of this case were gathered in Putnam v. Kinney (1929), 248 Mich. 410, 227 N.W. 741. Putnam is 'on all fours' here. These decisions go back to the simple proposition that one who is owner in fee of All of the upland surrounding one of our wholly private inland lakes, a lake having no navigable inlet and no navigable outlet, (a) really owns the subaqueous land of the lake and the water over the latter as well as the upland, and (b) that his property right is such that he may exclude all others from the lake, the general public included. All this cannot be gainsaid, nor is it denied. As against the successive and fully supported factual findings below the attorney general responds simply that plaintiffs' Wood Lake is at least navigable in fact and that the 'inland lakes and streams act' of 1965 (No. 291; M.C.L.A. § 281.731 et seq.; amended since institution of this litigation by P.A.1968, No. 7), with its declared applicability to 'any navigable inland lake or stream,' has abrogated Putnam's rule of property.
Our holding is that the act of 1965, so construed and applied, would collide with and fall before section 2 of article 10 of our Constitution. Guided by a familiar rule, we prefer to impute to the legislature an absence of intention to take in such manner private property 'without just compensation therefor.' The applicable rule of construction appeared first in Van Fleet v. Van Fleet (1883), 49 Mich. 610, 14 N.W. 566 and will be found echoed in a consistent list of cases appearing as §§ 117 and 118 of 16 Callaghan's Michigan Digest, Statutes, pp. 499--502 and 1971 Cum.Supp. at pp. 166, 167. 2
The size of Wood Lake (74 area acres) matters not. Nor does it matter that such a wholly private lake is navigable in fact. The stated rule of property applies to a privately owned inland lake as large as six mile long Lake St. Helen (St. Helen Shooting Club v. Mogle, 1926, 234 Mich. 60, 207 N.W. 915) and extends to one smaller than Wood Lake, such as 20--25 acre Giddings Lake (Giddings v. Rogalewski, 1916, 192 Mich. 319, 158 N.W. 951).
Two ably considered and visibly painstaking opinions of this case were prepared and filed below. The first was written by Circuit Judge Peterson, sitting in the 8th circuit, wherein Wood Lake is situated. The other was prepared by Court of Appeals Judge V. J. Brennan, for Division 3. The contemplative and discerning reader of Judge Peterson's opinion, consisting as it does of 28 printed pages, and then of the fully consistent and equally level-headed opinion of Division 3, can but conclude that each of the courts below stands for sturdy adherence to the necessary stability of property law and for the due protection of plaintiffs' vested and mature property right.
Affirmed. Costs of all courts to plaintiffs.
My endorsement attests full agreement with the Court's opinion Per curiam. A compendium should be added, however, lest impression remain that we have not considered carefully the enormity of the attorney general's position that natural and altogether privately owned Wood Lake, being navigable in fact, should by force of the statute (1965 P.A. No. 291) be opened to public use.
By the aforesaid opinion we reaffirm and reapply a settled rule of property law. The plaintiff owners of Wood Lake and all of the riparian environs thereof, to which the public has no lawful right of access, are upon this plain and factually ascertained record entitled--as in Giddings and Putnam 1--to injunctive relief against the continuing trespass all defendants have threatened.
No thought seems to have been given, by the appellant Department of Natural Resources and the attorney general, to the property-destructive consequences they would have us visit upon the plaintiff landowners. Let the public have access to Wood Lake, by the private roadway that leads westerly some 1500 feet from US 131 and ends at the lakeside home of Mr. and Mrs. McMullan, and the ear-splitting roar of racing outboard motors in summer and of snowmobile motors in winter is bound to replace the utter quiet of plaintiff's picturesque sylvan retreat. 2 The photographed littering shown around the testimonially described 'landing' will in short order extend predictably to all of the beaches and wooded shores of the lake. Trespasses and pollutional deposits upon the fast land around the lake will be beyond all practical control. The lake will no longer be owned in fact by the plaintiffs but will instead have become a place of invitational public recreation with no compensation provided for the constitutionally unlawful usurpation of plaintiffs' private rights.
The appellant department suggests no means whereby plaintiffs' continuing obligation to pay ever-burgeoning taxes upon their entire freehold will be relieved, in any minimal or substantial way, on account of the proposed partial destruction of their right to the exclusive enjoyment of that which they have acquired. In sum, what the appellant department proposes is that this Court by force only of the mentioned statute should authorize the uncompensated takeover for public use of plaintiffs' privately owned lake and the shores thereof. I cannot subscribe, our country as yet not having gone collectivist or wholly socialistic.
In the posture of this case, we have a very narrow issue to decide, which would be cimpletely moot but for the important implications for the future development of our State and the preservation and enjoyment of Michigan's unique bounty of inland lakes.
Plaintiffs are owners of land in Pierson Township, Montcalm County. Located upon, and entirely surrounded by plaintiffs' property is a natural body of water known as 'Wood Lake', comprising approximately 70 acres. The lake has no inlet and no outlet.
Wood Lake is meandered, a survey line having been run around the lake by the government land office in 1837. The meander line defined the size of the government lots around the lake. Plaintiffs' titles are traced to government lots.
On the northeasterly end of the lake, a road some 1500 feet in length runs from US--131 to the McMullan home on the north shore of the lake.
At one point, this road, known as the McMullan Road or as Wood Lake Road, parallels, and comes rather close to the shore of the lake. For some years, persons in the vicinity used this place as an access to the lake.
Prior to the commencement of this action, plaintiffs erected a fence between the lake and the road. Some of the defendants cut the fence, and continued to use the road as access to the lake. After commencement of this action, plaintiffs filled in part of the bed of the lake at the point where the road was closest thereto.
Intervening defendant, Conservation Department, then sought, via cross-complaint, the removal of the fill, no permit therefor having been issued under 1965 P.A. No. 291.
At the trial, the circuit judge ruled that defendants were precluded from showing that Wood Lake Road was a public highway by user. This exclusion was premised upon defendants' failure to deny demands for admissions submitted under GCR 312. Although a separate record was made, we find no need to review it. There is no claim of error in the trial court's exclusionary ruling, and we find none.
Thus, we consider this case upon the premise that Wood Lake Road is not a public road.
Morever, we are satisfied that there was no error in the holding of the courts below that no prescriptive easement has been established, by which the public have gained a right of access to Wood Lake.
The issue then, is narrow. It is framed by the statute--Act 291 of 1965, called the Inland Lakes and Streams Act--and by the word Navigable as it appears in that act.
Is Wood Lake a navigable lake?
Much has been written in our reports on the subject of navigability. Most of it has been in connection with the status of rivers and streams.
Definitions of navigability have been stated and tests have been formulated in various words.
Navigable waters have been said to be public waters. It has been said that navigable waters are impressed with a public trust, or burdened with a servitude in favor of public navigation.
Navigable waters have been compared to public highways. Indeed it has been said that navigable waters are public highways.
The Northwest Ordinance of 1787, by which the territory which includes Michigan was organized and held bound to the original 13 colonies, contained a provision that the navigable waters leading to the Mississippi and St. Lawrence Rivers and the carrying places between them were public highways and should forever remain free.
It has often been observed in our cases that at the common law only tidewaters were held navigable by law, while some fresh waters in which the tide did not ebb and flow were by long custom and usage regarded as public thoroughfares, and held to be navigable in fact.
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...by this Court, in which riparian owners on an inland lake challenged the right of the public to use the lake, was Pigorsh v. Fahner, 386 Mich. 508, 194 N.W.2d 343 (1972). The body of water involved in Pigorsh was Wood Lake, approximately 74 acres in size, with no inlet or outlet. All the la......
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...no prescriptive right in . . . property for recreational purposes.") (citing Pigorsh v. Fahner, 177 N.W.2d 466 (Mich. App. 1970), aff'd 194 N.W.2d 343 (Mich. 1972)). 20. In addition, the Government cites a series of cases in which state courts held that trail use is within the scope of an e......
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...no prescriptive right in . . . property for recreational purposes.") (citing Pigorsh v. Fahner, 177 N.W.2d 466 (Mich. App. 1970), aff'd 194 N.W.2d 343 (Mich. 1972)). 20. In addition, the Government cites a series of cases in which state courts held that trail use is within the scope of an e......