It is conceded that the title to the lands known as the St. Clair Flats rests in the State. The nature of this title was settled in State v. Venice of America Land Co., 160 Mich. 680,701. It was there said:
"The depth of water upon submerged land is not important in determining the ownership. The condition of this territory when the State was admitted into the Union is the condition which must control. That the State of Michigan holds these lands in trust *Page 24 for the use and benefit of its people — if we are correct in our conclusion — cannot be doubted. The State holds the title in trust for the people, for the purposes of navigation, fishing, etc. It holds the title in its sovereign capacity.People v. Silberwood, 110 Mich. 103 (32 L.R.A. 694); State v.Fishing Shooting Club, 127 Mich. 580."
Prior to any of these decisions, the Supreme Court of the United States, in Illinois Cent. R. Co. v. Illinois,146 U.S. 387 (13 Sup. Ct. 110), decided in 1892, in an exhaustive opinion written by Mr. Justice Field, defined with much particularity the title which a State holds in the lands under the navigable waters of the Great Lakes. (For convenience, as the opinion is lengthy, I refer to the pages on which the language quoted appears. The italics in all cases are mine.) He first very clearly states the doctrine that the ownership of and dominion and sovereignty over lands covered by tide waters rests in the respective States bordering on them, and then applies the same doctrine to the navigable waters of the Great Lakes. He then says that the title thus acquired (page 452) "necessarily carries with it control over the waters above them whenever the lands are subjected to use." He then discusses at length the nature of the State's title:
"But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks and piers therein, for which purpose the State may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the *Page 25 grants. It is grants of parcels of lands under navigable waters, that may afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcelswhich, being occupied, do not substantially impair the publicinterest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the State."
It is thus clearly stated that grants may not only be made of such lands for the improvement of navigation and commerce, but that such lands may also be disposed of by the State, "which, being occupied, do not substantially impair the public interest in the lands and waters remaining." That the language so used was not merely an incidental utterance will be seen from its repetition, in effect, in that which follows whenever the right of the State to dispose of such lands is mentioned. After defining particularly the nature of the trust under which the State holds, he says, on page 453:
"The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can bedisposed of without any substantial impairment of the publicinterest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupieddo not substantially impair the public interest in the landsand waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. * * * The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or whenparcels can be disposed of without impairment of the publicinterest in what remains, than it *Page 26 can abdicate its police powers in the administration of government and the preservation of the peace."
And again on page 455:
"The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detrimentto, the public interest in the lands and waters remaining."
Other extracts from this opinion, in which substantially similar language is used, were quoted in People v. Silberwood,110 Mich. 103, 107, following which this court said:
"It seems to me the reasoning of this case is without flaw, and that the law enunciated therein ought to stand as the law of this State. It commends itself to one's reason and judgment, and avoids many difficulties incident to a different construction of the law."
In a later case (Shively v. Bowlby, 152 U.S. 1, 46 [14 Sup. Ct. 548]), when referring to the holding in the Illinois case, it was said:
"In the yet more recent case of Illinois Cent. R. Co. v.Illinois (1892), which also arose in Illinois, it was recognized as the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, or navigable lakes, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose ofany portion thereof, when that can be done without substantialimpairment of the interest of the public in such waters, and subject to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce. 146 U.S. 387, 435-437, 465, 474."
The adjudged cases which Mr. Justice Field says "can be reconciled" only by holding that the State has the right to grant parcels "for the improvement of the public interest, or which when occupied do not *Page 27 substantially impair the public interest in the lands and waters remaining" will be found in the dissenting opinion of Mr. Justice Shiras, beginning on page 465, and in the briefs of counsel appearing in the report (pages 414 to 432).
That a different rule did at that time prevail in some of the States is well illustrated by the decision in People v. FerryCo., 68 N.Y. 71. In that case the rules of the common law applicable to the soil under tide waters were discussed at length, and it was pointed out that while the sovereign could make no grant in derogation of the common right of passage over navigable waters, parliament could do so, and it was said that "the public right in navigable waters was in no way affected or impaired by the change of title" from the king to the States, and that the people in their sovereign capacity succeeded to the royal title and might exercise the same powers which previous to the separation might have been exercised by the king alone, or by him in conjunction with parliament. It was then said:
"The State, in place of the crown, holds the title, as trustee of a public trust, but the legislature may, as the representative of the people, grant the soil, or confer an exclusive privilege in tide-waters, or authorize a use inconsistent with the public right, subject to the paramount control of congress, through laws passed, in pursuance of the power to regulate commerce, given by the Federal Constitution."
The doctrine thus announced was followed in Langdon v. Mayor,etc., of New York, 93 N.Y. 129. I quote from the syllabus:
"The State, as successor to all the rights of both the crown and parliament of England in the navigable waters within its limits, and in the soil under them, holds them as absolute owner, and subject to constitutional limitations has an absolute and uncontrollable power to grant them." *Page 28
The holding in this class of cases seems to be founded upon the right of the legislature of the State as the representative of the public to abrogate the trust under which the title is held. That this doctrine was not in harmony with the decisions of the Supreme Court of the United States theretofore rendered clearly appears from the decision in Weber v. HarborCommissioners, 18 Wall. (U.S.) 57. In that case it appeared that the legislature of California had passed an act granting to the city of San Francisco for a term of 99 years the use and occupation of portions of the lands covered by the tide waters of the bay in front of the city for a permanent water front. It reserved to the State the right to regulate the construction of wharves and other improvements. The plaintiff acquired the title of the city. It was held that a particular wharf erected by plaintiff was an encroachment upon the soil of the State which it could remove at pleasure, and that the State, irrespective of the grant, could authorize improvements in the harbor, by the construction of which the use of the wharf would necessarily be destroyed.
Between the claim on the one side that the State may part with its title at will and that on the other that it may not part with its title at all except in aid of navigation, or for a public purpose, Mr. Justice Field announced the true doctrine to be that the State might dispose of parcels of such lands when it could be done "without detriment to the public interest in the lands and waters remaining." This appeals to me as sound and reasonable, and I think it should be adopted as the law of this State.
Let us apply it to the facts in this case. The lands in question, known as the St. Clair Flats, must be treated as submerged land (State v. Venice of America Land Co., supra) to which the trust doctrine as to the State's title is applicable. By reason of the *Page 29 lowering of the waters in the lake, or other causes not necessary to consider, certain of these lands have become relicted, that is, uncovered by the recession of the water. The record of the Davis survey shows that the lot in question was at that time nearly all upland. We may take judicial notice of the lowering of the water in the lake since that survey was completed in 1902. The lot is now undoubtedly all relicted land. The petition herein alleges that this lot and other lands included in the Davis survey "are now unfit for hunting or fishing and incapable of use for navigation." The truth of this allegation is admitted in the answer of the defendants. If this land may be occupied without any substantial impairment of the rights reserved to the public under the trust with which the State's title is burdened, no public purpose will be served by holding that the State may not permit it to be occupied. The wisdom of doing so is a matter for the consideration of the legislature, not the courts.
To adopt the strict rule that the legislature has no power to dispose of lake bottom lands for any except a purpose consistent with the terms of the trust might lead to unfortunate results. If the owner of land bordering on the lake should develop a coal or iron mine thereon and it be found that the vein extended under the waters of the lake, it would be a misfortune, indeed, if the legislature might not permit the coal or iron ore to be removed on terms which were reasonable and just, providing such removal would in no way interfere with navigation.
In my opinion, the Supreme Court of the United States in its later opinions has not deviated from the rule announced in the Illinois case. The decisions relied on to establish a different rule are in cases involving riparian rights, and as to those, except such as involve accretions, it is said that they "are governed *Page 30 by the laws of the several States, subject to the rights granted to the United States by the Constitution."Shively v. Bowlby, supra.
In Port of Seattle v. Railroad Co., 255 U.S. 56 (41 Sup. Ct. 237), it appeared that under appropriate State legislation extensive tide lands fronting on the city had been developed as a port. These improvements were for the benefit of navigation and well within the power of the State. The issues in that case involved rights in the lands adjoining the shore which had been filled in under legislative authority. The defendant claimed a riparian right to construct wharves and docks from the land owned by it to obtain access to a waterway. The nature of the State's title, although said to be "the full proprietary right," was not questioned, both parties claiming under grants from it.
My attention is called to the recent decision in UnitedStates v. Holt State Bank, U.S. Adv. Ops. 1925-26, p. 212 (46 Sup. Ct. 197), in which it is said "that lands underlying navigable waters within a State belong to the State in its sovereign capacity." It is sufficient here to say that the nature of the State's title to such lands "within a State" is not here presented.
But, whatever may be the rule in other States, it is settled beyond question in this State, unless a number of well-considered decisions be overruled, that the State holds its title to the lands in the beds of the Great Lakes "in trust for the people, for the purposes of navigation, fishing, etc."State v. Venice of America Land Co., supra.
It follows from what has been said that the legislature had the power to confer upon the commission the authority to lease such of these lands as had become relicted, and to that extent the validity of the act is sustained. As the lot in question is within this class, *Page 31 the writ of mandamus will issue, if necessary. No costs will be allowed.
CLARK, J., concurred with SHARPE, J.