Sterling v. Jackson

• Citation: 37 N.W. 845,69 Mich. 488
• Court: Supreme Court of Michigan
• Decision Date: 20 April 1888
• Parties: STERLING v. JACKSON.

37 N.W. 845

69 Mich. 488

STERLING v. JACKSON.

Supreme Court of Michigan

April 20, 1888

Error to circuit court, Monroe county; RUSSELL R. PEALER, Judge.

Trespass q. c., by William C. Sterling against Charles A Jackson, for breaking and entering plaintiff's close covered with water, and breaking down the wild rice and grass there growing, and wounding, killing, and frightening away wild ducks there resting and feeding. Plaintiff claimed title by virtue of the act of congress of 1850, mentioned in the opinion, under which a patent was issued to the state of Michigan in 1882, and a deed or patent was made by the state in 1883. The facts are stated in the opinion. Plaintiff had judgment, and defendant brings error.

CAMPBELL and MORSE, JJ., dissenting.

A patent for swamp land granted to the state of Arkansas and other states by Act Cong. Sept. 28, 1850 (43 U.S.C.A. �� 982-984), granting such lands to the state of Arkansas and other states, is simply evidence of the grant, and not of the date such grant took effect.

A reservation of public lands by executive order is valid. U. S. v. Payne, 8 F. 888; Wolsey v. Chapman, 101 U.S. 755; Grisar v. McDowell, 6 Wall. 381. The acts of the heads of departments in reserving lands are the acts of the executive. Wilcox v. Jackson, 13 Pet. 498 Wolsey v. Chapman, 101 U.S. 755. The interior department cannot issue a valid patent for reserved lands, without an abrogation of the reservation. U. S. v. Stone, 2 Wall. 525; Railroad Co. v. Orton, 6 Sawy. 179; Reichart v. Felps. 6 Wall. 160; Morton v. Nebraska, 21 Wall. 674. The patent, in such case, may be collaterally attacked. Webber v. Boom Co., 30 N.W. 469; Smelting Co. v. Kemp, 104 U.S. 636.

The waters of the bay are navigable. Moore v. Sanborne, 2 Mich. 519; Booming Co. v. Speechly, 31 Mich. 336; Burroughs v. Whitwam, 26 N.W. 491. The meandering of the banks is immaterial on this question. Railroad Co. v. Schurmeir, 7 Wall. 286; Palmer v. Dodd, 31 N.W. 209; Ross v. Faust, 54 Ind. 471; Minto v. Delaney, 7 Or. 337; Hardin v. Jordan, 16 F. 823; Forsyth v. Smale, 7 Biss. 201. The bay is free to the public. Ord. Govt. N.W. Ter. art. 4; 1 How. St. 29. The public acquires rights in navigable waters which encroach on private property. Wilson v. Shiveley, 11 Or. 215, 4 P. 324; In re Railway, 5 Mees. & W. 327; Mulry v. Norton, 29 Hun, 660; Trustees v. Kirk, 84 N.Y. 215. At common law all the subjects of the king had a common right to fish in, as well as to navigate, tide-waters; that is, navigable waters. Pearce v. Scotcher, 9 Q. B. Div. 162; Lincoln v. Davis, 53 Mich. 379, 19 N.W. 103. An exclusive right to fish in such waters could be acquired only by royal grant, made beyond the time of memory. Weston v. Sampson, 8 Cush. 347. In this country the public have the right of fishing in and taking shell-fish from the bottom of navigable waters. Martin v. Waddell, 16 Pet. 367; Smith v. Maryland, 18 How. 74; Collins v. Benbury, 3 Ired. 277; Browne v. Kennedy, 5 Har. & J. 195. The same rule holds as to bodies of fresh water not technically navigable at common law. State v. Falls Co., 49 N.H. 240; Carson v. Blazer, 2 Bin. 475; Sloan v. Beimiller, 34 Ohio St. 492. And this is so where an individual owns merely the soil under the water. Weston v. Sampson, 8 Cush. 347; Moulton v. Libbey, 37 Me. 472; Low v. Knowlton, 26 Me. 128; Parker v. Mill-Dam Co., 20 Me. 353; Parsons v. Clark, 76 Me. 478; Hogg v. Beerman, 41 Ohio St. 98. The public have the right to fish in small land-locked lakes until the owner gives notice, (Marsh v. Colby, 39 Mich. 626,) and to fish with hook and line from boats in narrow streams, (Lincoln v. Davis, 53 Mich. 391, 19 N.W. 103.) The stream in question in Burroughs v. Whitwam, (Mich.) 26 N.W. 491, was not navigable, and fishing therein was held a trespass solely for that reason. If plaintiff had taken title in 1850, the encroachment of the waters would have conferred public rights in the bay. Wilson v. Shiveley, 11 Or. 215, 4 P. 324; In re Railway, 5 Mees. & W. 327. A grant of land covered by navigable water confers no greater rights than the grantee would have had if he had owned it without such direct grant. Parker v. Mill-Dam Co., 20 Me. 353; Moulton v. Libbey, 37 Me. 472. The ducks were open to capture by those who had a right to be where they were captured, and did not belong to plaintiff. Lincoln v. Davis, 53 Mich. 391, 19 N.W. 103; Tobin v. Post, 3 Cal. 375; Buster v. Newkirk, 20 Johns. 75; Wallis v. Mease, 3 Bin. 549; Com. v. Chace, 9 Pick. 15. Defendant had a right to anchor his decoys. Weston v. Sampson, 8 Cush. 347. The point that, if the acts of defendant were justifiable, plaintiff would lose the beneficial use of his land, because of the crowds of sportsmen who would come upon the bay, is without merit. Gould, Wat. � 124; Hogg v. Beerman, 41 Ohio St. 98; Booming Co. v. Jarvis, 30 Mich. 308. Fishing and fowling in navigable waters are entitled to as much protection as trade.

Plaintiff having a patent from the United States, mesne conveyances to himself, and possession, and the place where the trespass occured being within the meandered line of fractional section 11, he owns the fee. The title of the riparian owner extends to the middle of the lake or stream. Webber v. Boom Co., 30 N.W. 469. The grant of a fractional section carries with it a sand-bar or shallow in front of the premises. Watson v. Peters, 26 Mich. 508; Maxwell v. Bridge Co., 41 Mich. 453, 2 N.W. 639; Boom Co. v. Adams, 44 Mich. 404, 6 N.W. 857; Richardson v. Prentiss, 48 Mich. 88, 11 N.W. 819. The side lines of a riparian owner extend from the margin, at right angles with the thread of the stream. Gas-Light Co. v. Industrial Works, 28 Mich. 182; Clark v. Campau, 19 Mich. 328. The riparian owner has valuable rights in the water, and land thereunder. Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Mich. 125; Lincoln v. Davis, 53 Mich. 375, 19 N.W. 103; Marsh v. Colby, 39 Mich. 626; Burroughs v. Whitwam, 26 N.W. 491; Clute v. Fisher, 31 N.W. 614. The public right is that of navigation only. Moore v. Sanborne, 2 Mich. 519; Booming Co. v. Speechly, 31 Mich. 336; Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Mich. 125; Booming Co. v. Jarvis, 30 Mich. 319; Attorney General v. Booming Co., 34 Mich. 474; Gould, Wat. � 93 a, 95, 99, and cases cited; Ice Co. v. Shortall, 101 Ill. 46; McFarlin v. Essex Co., 10 Cush. 309; Adams v. Pease, 2 Conn. 481; Cooley, Torts, 329; Waters v. Lilley, 4 Pick. 145. The right to shoot wild fowl belongs to the riparian owner. Goff v. Kilts, 15 Wend. 550; Blades v. Higgs, 12 C. B. (N. S.) 501, 13 C. B. (N. S.) 844; Ferguson v. Miller, 1 Cow. 243; Gillet v. Mason, 7 Johns. 16.

Though in states where the soil under navigable waters is public property, the owner loses his title to land gradually encroached upon, (Gould, Wat. �� 158, 159,) yet, in this case, the old beach is still traceable, and in low water is exposed to view, and the title remains in him.

J. R. Ranch, (A. C. Angell, William H. Wells, and C.J. Walker, of counsel,) for appellant.

George M. Landon, J. R. Grosvenor, and F. A. Baker, for appellee.

CHAMPLIN J.

This is an action for trespass upon land covered with water, situated on fractional section 11 N. of private claim, township 7 S., range 9 E. The declaration alleges that defendant broke and entered, and with his boat, oars, and paddle, in rowing and hunting, broke down and destroyed, the wild rice and grass then growing, and with his gun shot at, wounded, and killed and frightened away the wild ducks and other game then nesting and feeding, and other injuries, etc. The defendant pleaded the general issue, and gave notice that he would show that the premises upon which the injuries were supposed to have been committed were a common highway, and free to defendant, and by virtue thereof, and in the use thereof, he did all and singular the acts complained of, as he lawfully might.

Upon the trial of the cause in the circuit court a patent was offered in evidence from the United States to the state of Michigan covering the land in question, purporting to be executed in conformity to the act of congress of the United States of date September 28, 1850, granting land to the state of Arkansas and other states to reclaim the swamp lands within their limits, to the introduction of which in evidence objection was made, for the reason that the patent which bore date the 16th day of August, 1882, was issued without legal authority. The objection was overruled, and the patent admitted. It recited that the lands thereby conveyed had been selected pursuant to the provisions of said act. The ruling of the court is assigned as error. It is claimed by counsel that the want of legal authority to issue the patent consists in the fact that, prior to its issue, the land in question was reserved for light-house purposes. But no such fact appeared at the time the patent was offered in evidence, and the reason of its invalidity was not then stated. There are two sufficient answers to the objection: First, there is no competent evidence in the case that the land was ever reserved for light-house purposes. A map was introduced of a survey made by William Ives, deputy surveyor of the United States, upon which certain lands lying along the shore of Lake Erie were shaded green, and such shading covered the locus in quo the shooting was claimed to have been done, and upon the margin of this map there appears the following memorandum: "The tracts embraced in the green shade are reserved for light-house purposes. See commissioner's letter, June 14, 1852." Another map was introduced from the office of the register of deeds of the county of Monroe of the same survey but upon a reduced scale, concerning which counsel for defendant asked the...