Ryan v. Brown

• Decision Date: 20 April 1869
• Court: Michigan Supreme Court
• Parties: Thomas Ryan v. George W. Brown et al

18 Mich. 196

Thomas Ryan v. George W. Brown et al

Supreme Court of Michigan

April 20, 1869

Heard April 16, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in chancery from Chippewa circuit.

The bill in this case was filed in the circuit court for the county of Chippewa, in chancery, to restrain the defendants from committing a trespass on the property of complainant by removing a dock, warehouse and certain sunken cribs, intended as the support of a dock in St. Mary's river, at the village of Sault Ste. Marie. An injunction issued, which, upon final hearing, was dissolved as to one portion of the property, and made perpetual as to the residue.

The defendants appealed to this court.

Decree against the defendants affirmed, with costs.

Dwight May, Attorney-General, for appellants:

Complainant files his bill for a perpetual injunction against the removal by defendants of a part of an old wharf and some sunken cribs, designed as an extension thereof, situate, as he alleges, on lots 76 and 77, of private land claims, at the Sault Ste. Marie, according to Whelpley's survey.

These lots, he alleges, he bought of Ebenezer Warner; the first in January, 1863, and the second in April of the following year when Warner was in possession.

tat there was a valuable wharf on the river front of said lots on the Ste. Marie river more than twenty years before the filing of this bill, which continued and was used until replaced by the one now standing; and that, when complainant bought, there was a number of sunken cribs, filled with stones, designed as a foundation for a wharf in front of said lots, and necessary for that purpose; that the wharf now standing was constructed about fifteen years before the filing of the bill, and the sunken cribs about five years. That there was a warehouse on said wharf; that the said wharf, warehouse and sunken cribs are not within the navigable waters of the river, and never have been, but are parts and parcels of said lots, and of complainant's property therein, and have always been peaceably occupied by the complainant, or some one through whom he claims title.

Complainant then alleges that defendants are insolvent; and that they are proceeding to destroy said wharf and cribs, thereby causing him irreparable injury; and prays answer under oath, and a perpetual injunction against their action.

It will thus be seen that complainant bases his case and his right to relief solely on the ground that the wharf and cribs are not, and never have been, within the navigable waters of the river, but are within the limits of the two lots mentioned. If he fails to substantiate this case, his bill must be dismissed, notwithstanding he may show other equities, which would have entitled him to relief had they been set forth: Thayer v. Lane, Walk. Ch., 200; Warner v. Whittaker, 6 Mich. 133; Bloomer v. Henderson, 8 Id. 395; Barrows v. Baughman, 9 Id. 213; Wurcherer v. Hewitt, 10 Id. 453; Peckham v. Buffam, 11 Id. 529; Perkins v. Perkins, 12 Id. 456; Moran v. Palmer, 13 Id. 367. See also Story Eq. Pl., §§ 241-2, 264-8; Lube Eq. Pl., 24, and note 1, 25-6..

The evidence, we insist, proves that the obstructions sought to be removed are within navigable waters.

1. Any stream capable of being used in the transportation of any kind of property to market, whether in boats, rafts, or single pieces, whether guided by the hand of man or floated at random on the water, is a public stream, and subject to the public easement: Morgan v. King, 30 Barb. 9; Rhodes v. Otis, 33 Ala. 578; 2 Mich. 519.

There can be no question, therefore, not only that the St. Mary river was navigable, but that the whole of the locus in quo was covered with navigable water; since the whole of it was not only capable of the inferior species of navigation protected by the case of Moore v. Sanborne, but was sufficient for most species of water craft, and some part of it for the largest class of lake vessels.

But complainant has introduced some evidence from which he would have the court infer that he has confined his improvements to the channel bank. We have to say of this:

There is no evidence of the existence of any channel bank distinct from the shore; but, on the contrary, it appears that there is a gradual deepening of the water from the shore line out. In any navigable stream the public right is limited to the channel: Porter v. Allen, 8 Ind. 1; Dalrymple v. Mead, 1 Grant's Cases, 197; Williams v. Wilcox, 8 A. and E., 314; Hart v. Mayor, etc., of Albany, 9 Wend. 584; Lorman v. Benson, 8 Mich. 25; Rice v. Ruddiman, 10 Id. 125.

2. Where is vested the power of control over navigable waters?

This power is unquestionable in the state: Commissioners, etc., v. Withers, 29 Miss. 21; Spooner v. McConnell, 1 McLean 345; Gillman v. Philadelphia, 3 Wallace 713, 744; Pollard's Lessees v. Hagan, 3 How. 325.

The state, having the power to control, has also the power to improve; and she may judge of the expediency of improving her public rivers, and execute and provide for executing such works of public improvement as she deems important: Same case; State Const., art. 18, § 4; Gould v. Hudson R. R. Co., 6 N. Y., 522; Dutton v. Strong, 1 Black. 1-32; Houck on Rivers, 195, 6, 7, 8, 9, 200-1.

In other words, the right to decide what improvements shall be made in navigable waters, is in the state, and not in the owners of the adjacent banks, or of any jury. The whole of the navigable stream being subject to the public easement, the state may at any time improve and make the whole more useful for the public service.

Private individuals can acquire rights adverse to those of the state only by legislative authority, or, within the canal limits, perhaps by permission of the board of control.

Any permanent appropriation of any part of navigable water by an individual cannot be protected on the pretense that enough is still left for the accommodation of others: Hart v. Mayor, etc., of Albany, 9 Wend. 584.

The question whether navigation is impeded cannot be gone into by defendant; it is enough that he is creating an obstruction within the limits of the public highway: Same case, p. 596; Angell on Tide Waters, 208; Regina v. Randall, 1 Car. and M., 496.

If any man could gain a permanent right in a public highway by simply encroaching upon it, it would certainly be very simple and easy to acquire such rights everywhere, but especially in the newer parts of the state; and the more unscrupulous and secret the proceedings of the trespasser, the greater would be the rights which he might acquire.

We have not been able to find authority sanctioning this rule; and, on the contrary, we think it clear that one thus encroaching on the public right of navigation, does so at the peril of being removed at any time when the state authorities decide the removal necessary.

Private rights cannot be claimed adverse to the public, short of an occupation of twenty years; but it has been held that even an acquiescence for twenty years in an obstruction will not prevent its being abated as a public nuisance: Renwick v. Morris, 3 Hill 623.

3. There is no showing of irreparable injury.

It is a general rule that an injunction will not be awarded to restrain a mere trespass. There must be something special in the case, like irreparable injury, which makes the remedy at law inadequate, or equity has no jurisdiction. And the facts which constitute the irreparable injury must be set forth. See Adams' Eq., 209, 210, and note; Willard's Eq., 381-3; 9 Wend. 577; 1 C. E. Green N. J. Ch., 425; 2 Id. 76; 3 Id. 215, 293.

The only ground upon which it is claimed in this case that the remedy at law is inadequate, and the injury irreparable, is the insolvency of defendants. But this is expressly denied by the answer, and no attempt is made to sustain the bill by evidence on this point.

4. If the bill is dismissed as to Brown, it must be dismissed as to the other defendants also. The claim by authority derived from Brown, and a successful defense by him, inures to their protection: Buchoz v. Lecour, 9 Mich. 234; Ross v. Davis's Ex., 4 J. J. Marsh., 386; Harrison's Heirs v. Devennah, 2 Bibb 349; Clason v. Morris, 10 Johns. 524.

L. S. Trowbridge, solicitor for complainant and appellee:

1. The deeds of the complainant from his grantor are alleged to be without consideration, and in trust, but those allegations are entirely unsupported by proof, and being only on information, and not responsive to the bill, cannot prevail, unsupported by proof, against the positive sworn statements of the bill.

But the defendants are in no position to question the consideration of these deeds. It does not concern them; they admit that the legal title passed to Ryan, and his possession, which is really the only matter in issue, is clearly established by the proof.

2. The defendants, however, set up in their answer a right to remove the structure in question, like a plea of grant or title to the premises in question, under the act of congress of August 26th, 1852, granting to the state of Michigan a certain strip of public land 400 feet wide, on which to build a canal.

In answer to this it is submitted that, even if this plea were sustained by the proof, it would not justify defendants in ousting the complainant of his peaceable possession by a forcible entry. The law provides an entirely different method for trying titles.

Lots 76 and 77 are private property. The forty years' possession of the complainant and his grantors would presume a grant. But more than this: these claims have been recognized adjudicated and allowed as such, and as to the government title, appropriated under the...