Putnam v. Kinney

• Decision Date: 03 December 1929
• Docket Number: No. 96.,96.
• Citation: 248 Mich. 410,227 N.W. 741
• Parties: PUTNAM et al. v. KINNEY et al.
• Court: Michigan Supreme Court

248 Mich. 410

227 N.W. 741

PUTNAM et al.

v.KINNEY et al.

No. 96.

Supreme Court of Michigan.

Dec. 3, 1929.

Appeal from Circuit Court, Newaygo County; Joseph E. Barton, Judge.

Bill by William P. Putnam and others against Thomas Kinney and others. Decree for defendants, and plaintiffs appeal. Reversed, and decree for plaintiffs entered.

Argued before the Entire Bench. Laurence W. Smith and Fred N. Searl, both of Grand Rapids, and William J. Branstrom, of Fremont, for appellants.

Linsey, Shivel & Phelps, of Grand Rapids, for appellees.

POTTER, J.

Plaintiffs own the land surrounding Conover Lake, a meandered body of water of about 112 acres in Ensley township, Newaygo county. There is no inlet or outlet to this lake. Along the south side thereof runs a public highway never laid out, but open and used by the public for 35 years and upwards and recognized and improved by the township authorities for at least 10 years. For 35 years or more the people have had access to this lake from this highway to water horses and launch row boats. Plaintiffs put a fence along the north line of the highway, and thus shut off the public from access to the body of the lake, the fence being in the water, but the highway being on plaintiffs' land. The fence was destroyed, and plaintiffs filed a bill to restrain defendants from trespassing upon the lake, interfering with plaintiffs' fence, going on the lake to fish, and from operating or maintaining a boat livery thereon. There is no serious dispute about the facts.

Many cases involving inland lakes have been before this court. People v. Conrad, 125 Mich. 1, 83 N. W. 1012, involved at purely private lake. People v. Collison, 85 Mich. 105, 48 N. W. 292, and People v. Horling, 137 Mich. 406, 100 N. W. 691, involved lakes connected with other bodies of water to and from which fish might migrate. The right of fishing and hunting in the arms of the Great Lakes is not here involved, as in Ainsworth v. Hunting & Fishing Club, 153 Mich. 185, 116 N. W. 992,17 L. R. A. (N. S.) 1236, 126 Am. St. Rep. 474,15 Ann. Cas. 706, and Stuart v. Greanyea, 154 Mich. 132, 117 N. W. 655,25 L. R. A. (N. S.) 257.Douglas v. Bergland, 216 Mich. 380, 185 N. W. 819, 20 A. L. R. 197, so far as it involved the right to fish on Lake Gogebic, follows Beach v. Hayner, 207 Mich. 93, 173 N. W. 487, 5 A. L. R. 1052. The riparian proprietor on inland lakes owns to the middle of the lake, Rice v. Ruddiman, 10 Mich. 128;Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227, 60 N. W. 681,25 L. R. A. 815, 47 Am. St. Rep. 516. Disputes between the several riparian proprietors as to the line of convergence of their respective properties may be settled by agreement or by a resort to equity in a proceeding akin to partition. Hardin v. Jordan, 140 U. S. 402, 11 S. Ct. 808, 838,35 L. Ed. 428;Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227, 60 N. W. 681,25 L. R. A. 815, 47 Am. St. Rep. 576. Obviously, where mere casual fishing is involved, a rule requiring the establishment of definite lines of demarcation between the properties of the several riparian proprietors would be difficult of application, and therefore the rule was adopted in Beach v. Hayner, 207 Mich. 93, 173 N. W. 487, 489, 5 A. L. R. 1052: ‘That, where there are several riparian owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by the other riparian owners.’

But where there is but one riparian proprietor whose lands entirely surround the lake, the difficulty of establishing definite lines of demarcation between the holdings of different riparian proprietors and the argument arising from the necessity of avoiding uncertainty and inconvenience disappears.

Conover Lake is meandered. Meander lines are established by the government surveyor in the exercise of the discretion vested in him by the Surveyor General of the United States. They have of themselves no force as boundary lines, but are established for the convenience of the government in determining the amount of public lands for which the government should collect payment upon the sale thereof. Palmer v. Dodd, 64 Mich. 474, 31 N. W. 209;Brown v. Parker, 127 Mich. 390, 86 N. W. 989;Arnold v. Brechtel, 174 Mich. 147, 140 N. W. 610.

[4] If Conover Lake is a public navigable lake, the public have a right to navigate it and to fish in its waters. Gould on Waters (2d Ed.) 171; Sterling v. Jackson, 69 Mich. 488, 37 N. W. 845,13 Am. St. Rep. 405;City of Grand Rapids v. Powers, 89 Mich. 94, 50 N. W. 661,14 L. R. A. 498, 28 Am. St. Rep. 276;State v. Fishing & Shooting Club, 127 Mich. 580, 87 N. W. 117. By statute the public right of fishing is extended to all navigable or meandered waters of the state when such waters have been or may hereafter be stocked with fish by the people of the state or of the United States. Sections 7694, 7695, Comp. Laws 1915. Conover Lake is not only meandered but boatable for row boats such as are commonly used for fishing on the smaller inland lakes of the state, but ‘both facts, if shown, fail to furnish the test of navigability. The true test is whether the waters under consideration are capable of being used by the public as thoroughfares or highways for purposes of commerce, trade, and travel-of affording a common passage for transportation and travel by the usual and ordinary modes of navigation.’ Giddings v. Rogalewski, 192 Mich. 319, 158 N. W. 951,...