Toledo Liberal Shooting Co. v. Erie Shooting Club

• Citation: 90 F. 680
• Decision Date: 05 December 1898
• Docket Number: 567.
• Parties: TOLEDO LIBERAL SHOOTING CO. et al. v. ERIE SHOOTING CLUB.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

90 F. 680

TOLEDO LIBERAL SHOOTING CO. et al. v. ERIE SHOOTING CLUB.

No. 567.

United States Court of Appeals, Sixth Circuit.

December 5, 1898

The Erie Shooting Club, the complainant below, is a shooting club incorporated under the law of Michigan. The object of the incorporation was to secure, hold, and protect suitable territory for hunting and fishing for the exclusive use of its members. In pursuance of this purpose, it has acquired by leave between three and four thousand acres of land, with the exclusive right to hunt and shoot thereon the wild game and fowl which might frequent said property. The lands thus secured belong in fee to its members, who have leased to the club the exclusive rights mentioned. These lands consist of the;horse and submerged lands constituting a shallow, marshy body of water, called 'MaumeeBay,' a bay or arm of Lake Erie, and lie in Monroe county, Mich. These submerged lands were surveyed and platted and patented to the state of Michigan as swamp or overflowed lands, under the swamp land act of 1850. By grants from the state, and through mesne conveyances, all the lands included within its shores including two small islands, have become private property. The Toledo Liberal Shooting Company is an incorporation of Ohio, and, like the Erie Shooting Club, is organized for the purpose of holding and protecting lands for the exclusive use of its members as a preserve for wild game, etc. It holds under lease about 106 acres of submerged lands in about the center of Maumee Bay, and entirely surrounded by the submerged lands held under lease by the Erie Shooting Club. With this exception, the Erie Shooting Club holds leases to the entire body of submerged lands within the shores of Maumee Bay, and also holds leases which include the shores of said bay and two small islands therein,-- one known as 'Indian Island,' and containing about 36 acres, and the other known as 'Card Island,' with an area of about 20 acres. The entire holdings of submerged and dry lands by the said Erie Shooting Club is between three and four thousand acres, much the greater part being submerged lands.

The bill of the Erie Shooting Club represented that the Toledo Liberal Shooting Company, by its officers and members, was trespassing upon its property, by entering same 'with boats and otherwise,' 'and had with guns shot and killed, destroyed, and scared away wild ducks and other wild water fowl thereon, both before and after sunrise, and at other times. ' This they are charged with as having frequently done, and against the protests and objections of complainant, and that 'they threaten to continue so to do,' etc. Other averments are also made as to the frequency with which this conduct has been persisted in, and as to the injury done and threatened to be done to the property of complainant. The prayer of the bill was that the defendants be enjoined perpetually from entering upon the said property, and from trespassing thereon, by shooting or otherwise destroying the wild fowl thereon. Certain individuals, being officers and members of the Toledo Club were joined as defendants, and like relief was sought against them. The Toledo Club and its members made defendants joined in defending, and by answer denied that they collectively or individually had been guilty of trespassing upon complainant's property, by shooting thereon, or by entering upon any dry land owned or rented by complainant. They assert that the submerged lands claimed by complainant are lands under navigable waters, and deny that any exclusive right to navigate said waters has been conferred upon complainant, its members, or the lessors under whom they hold, and assert the right to go on and over said water in any way or direction for the purpose of reaching and hunting upon their own submerged lands. The answer admits that complainant has 'the exclusive right to the game or wild fowl found on or over' the lands lawfully held by it under lease or otherwise. Much proof was taken, both as to the character and frequency of the alleged acts of trespass committed by the defendants, and as to the character of the water constituting Maumee Bay. Upon a final hearing, the circuit court granted a perpetual injunction restraining defendants from entering upon the waters covering the submerged lands leased by complainant, in boats or otherwise save by a prescribed route definitely fixed by the decree, and for the sole purpose of reaching the submerged lands leased by the defendant corporation. The decree also specifically and perpetually enjoined the defendants, their licensees or agents, from 'hunting or shooting with guns,' or in any manner 'killing or taking wild fowl of any kind upon or over the water covering the lands of complainant. ' From this decree, defendants have appealed.

Willis...