Sanders v. De Rose
| Decision Date | 06 July 1934 |
| Docket Number | 26469 |
| Citation | 191 N.E. 331,207 Ind. 90 |
| Parties | SANDERS v. DE ROSE |
| Court | Indiana Supreme Court |
1. WATERS AND WATER COURSES---Natural Lakes---Private Ownership---Boundary Lines---Congressional Surveys.---Congressional survey held to fix boundary lines pertaining to Center Lake, a non-navigable inland lake, with same certainty as the boundary lines of adjoining uplands. p 94.
2. WATERS AND WATER COURSES---Natural Lakes---Inland Non-navigable Lakes---Law Governing.---The land covered by an inland non-navigable lake is governed by the common law in Indiana. p. 95.
3. WATERS AND WATER COURSES---Natural Lakes---Private Ownership---Control.---The owner of the land beneath a non-navigable inland lake, having an outlet and inlet but not connected with public waters of the state, has exclusive use of the water above his land and may enjoin public use of his portion of such lake for fishing, boating, and like purposes p. 95.
Action by John Sanders, Jr. against Frank De Rose to enjoin public use of a non-navigable inland lake. From a judgment for defendant on demurrer to the complaint, plaintiff appealed. Transferred from the Appellate Court. Reversed.
Best & Hubbard, of Angola, for appellant.
Milo Thompson, of Angola, for appellee.
This was a suit brought by appellant against appellee praying for injunctive relief. The complaint, in substance, alleges that appellant is the owner and in possession of the northeast quarter of section 22, town 37 north, range 13 east, in Steuben county, Ind., of which land about twenty acres is covered by a nonnavigable body of fresh water, known as Center Lake; that all of this lake is located upon his land except a small portion thereof along his east line owned by one Artie D. Fast; that appellant, on the land so covered with water, keeps boats for hire to persons who desire to go upon the same for rowing, fishing, and other pastime, for which he receives a large profit and income that as a resort for pleasure and recreation there is a demand for such service by the people in the vicinity of this lake and those who visit the county; that appellee, in violation of the rights of appellant, and over his objection, on July 6, 1928, and on sundry days and times thereafter, up to and including August 15, 1928, entered upon the land of appellant, so covered by water, over the land of Artie D. Fast, with boats and fishing tackle, rowed, fished, and anchored his boats for hours under a claim of right so to do in defiance of appellant's protest and request to depart, and then to other persons present and theretofore to the public generally he asserted that appellant did not own the land so covered with water and had no right to exercise any control over the same, thereby wrongfully and unlawfully persuading other persons to wrongfully go upon the water and lands of appellant and to remain thereon in opposition to appellant's request and orders; that, by the continued action and advice of appellee, the public was induced to believe that appellant had no right to charge for the right to row and fish on his land, and in consequence thereof his business was greatly injured, and to his damage in the sum of $ 1,000.
A demurrer to this complaint for want of facts was sustained, and, appellant refusing to plead further, judgment was entered that plaintiff take nothing and defendant recover his costs. Error is here assigned on the action of the court in sustaining appellee's demurrer to the complaint for want of facts.
Several alleged defects in the complaint are pointed out by the memorandum to the demurrer, but in our opinion the controlling or dominant question for our decision is: May the owner of a congressional surveyed unit of a nonnavigable inland fresh-water lake, having an inlet and outlet, but not connected with any public waters of the state, exclude an adjoining owner or owners, or the public having a license from such owners, from boating and fishing in the waters on his land?
Appellee, to support the judgment of the court below, cites the case of Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 5 A. L. R. 1052, which, upon a casual reading, seems to support his contention, but it will be noticed that this case rests upon the dissenting opinion in the case of Sterling v. Jackson, 69 Mich. 488, 37 N.E. 845, 13 Am. St. Rep. 405, and the case of Inhabitants of West Roxbury v. Stoddard & Another, 7 Allen (Mass.) 158, which was a tort case in which the inhabitants of West Roxbury charged the defendants with having unlawfully entered upon a certain pond, cut and removed ice therefrom, the alleged property of the plaintiffs.
It will be observed from the opinion in the Roxbury Case that by colonial ordinances of 1641-1647 great ponds were defined as containing more than ten acres of land, and were, by these ordinances, devoted to public use. The court in that case concluded its considerations as follows (page 171 of 7 Allen):
'1. Great ponds, containing more than ten acres, which were not before the year 1647 appropriated to private persons, were by the colony ordinance made public, to lie in common for public use.
'2. This ordinance applied to all these ponds, whether at that time included within the territory granted to a town, or to any body of proprietors for the plantation of a town, or not then granted by the government of the colony, if they had not then been appropriated to particular persons, either by the freemen of the town or by the general court.
'3. No possession adverse to the public right could be acquired or held by the town of Roxbury by means of any of the acts and votes set forth in the report.
We are not advised by any statute in this state authorizing the use of Center Lake by the public, and the facts alleged in the complaint repel any claim of any dedication of the lake for such use. We therefore decline to follow the Beach Case.
Our attention is called to the case of State v. Lowder, 198 Ind. 234, 153 N.E. 399, which involved the alleged unlawful possession of a seine, and the unlawful taking of fish from Lattas Creek pond with a seine, in...
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