Collins v. Gerhardt

The learned circuit judge reached the right result and the judgment should be affirmed. It is true that, in navigable waters, where the soil is not owned by private persons, the right to fowl and fish is in the public. But to carry the trust theory to the extent of impressing it on private property, by way of implied retention in the sovereign power, overturns rules of property, and disrupts vested titles, too long established by the common law in grants according to its principles and upheld by an almost unbroken line of judicial pronouncements, to admit now of taking the same away without due process of law.

Cases are decided, of course, on particular facts presented, and in Nedtweg v. Wallace, ante, 14, we had a case involving the bed of one of the Great Lakes owned by the State, and what we there said about the trust has no application to beds of rivers and inland lakes subject to private ownership.

The right of the public to fish in this stream does not at all turn upon the question of whether it is navigable within the common-law meaning of that term. The cases, ancient and modern, with but few exceptions, are in accord in holding that the right to fish runs with the ownership of the soil.

Much unnecessary confusion has resulted from an imperfect understanding of the true use to be made of the common-law test of navigability, viz., the ebb and flow of the tide. That test only serves in this country in solving the question of ownership of the soil underlying the waters. If ownership of the soil is in the State, the right to there fish is in the public. If ownership of the soil is private, the right to there fish is exclusive of the public. All grants by the government are construed in accordance with the principles of the common law unless they carry a different intention or have origin in another purpose openly expressed. The rule of the common law vested title to lands on tide waters only to high water mark, but above tide waters titles reached to the thread of the stream. Granting right of entry to private property to angle for fish, under the guise of right of navigation or the trust theory, would overturn a rule of property settled in this State from the time of its admission to Statehood.

All questions involved are so interwoven as to bar discussion under specific headings.

This stream may be termed floatable because capable of being used to float logs. Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209).

In Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, it was said of the Grand river:

"This river, so far as it is navigable for vessels, or floatable for logs, is but a public highway by water; the right to navigate the one or float the other is but a right of passage, including only such rights as are incident to thatright and necessary to render it reasonably available."

A right to fish in a stream, the soil of which is in private ownership, is not an incident of navigation any more than the right of passage over a land highway grants right to stop, reap crops, gather fruit, berries or nuts growing therein. That such acts are forbidden is established by the rule that the public right is an easement and goes no farther than the necessity of use for passage demands.

In Holyoke Co. v. Lyman, 15 Wall. (U.S.) 500, 512, the Supreme Court of the United States said:

"Ownership of the banks and bed of the stream, as before remarked, gives to the proprietor the exclusive right of fishery, opposite his land. * * *

"Undoubtedly each proprietor of the land adjoining such a river or stream has in that State (Massachusetts) a several or exclusive right of fishery in the river immediately before his land, to the middle of the river, and may prevent all others from participating in it, and will have a right of action against any who shall usurp the exercise of it without his consent." * * *

While no person has property in or any vested interest in any rule of the common law, yet "rights of property which have been created by the common law cannot be taken away without due process." * * * Second Employers' Liability Cases, 223 U.S. 1,50 (32 Sup. Ct. 169).

The Constitution of this State retains the common law, not repugnant to the Constitution, and except as it has been or may be altered or abrogated by legislation. Schedule, § 1.

The common-law rights of proprietors of the beds of streams and rivers have never been altered by statute in this State, and are still in full force, and rights thereunder are vested, and can be taken only under due process of law.

In 26 C. J. p. 600, it is stated:

"Although a stream above the ebb and flow of the tide is not navigable in a strict technical sense, yet if it is capable of being navigated by boats, rafts, or logs, the exclusive right of fishery of a riparian owner on its banks is subject to the use of the stream as a public highway for purposes of transportation and commercial intercourse; and on the other hand the right to navigate such stream must be so exercised as not unnecessarily to disturb or interfere with the subordinate private right of fishing."

In Commonwealth v. Chapin, 5 Pick. (Mass.) 199, 202 (16 Am. Dec. 386), Chief Justice Parker stated:

"The right of passage and of transportation upon rivers not strictly navigable belongs to the public, by the principles of the common law; but the right of fishery remains unrestricted, so that each proprietor of the land adjoining has a several or exclusive right of fishery in the river, immediately before his land, down to the middle of the river, and may prevent all others from participating in it, and will have a right of action against any who shall usurp the exercise of it without his consent."

This rule secures rights so far as the public interest requires and establishes the true line between public and private rights. The law has always recognized the distinction between a mere easement and the right to take a profit. There is no right in the public to fish in a river the bed of which is not publici juris but private property. The right to a several fishery here rests upon ownership of the bed of the river. The right of a public fishery necessarily rests either upon title to the bed in or express retention of control by the State.

In Schulte v. Warren, 218 Ill. 108, 120 (75 N.E. 783, 13 L.R.A. [N. S.] 745), it was said:

"The next question is whether the public have a right to hunt and fish where there is such a right of navigation as an incident to the latter right. Appellant insists that if his lands are subject to a public easement for the purpose of navigation it does not follow that he has lost his exclusive right to hunt and fish over them, while the position of appellees is, that wherever there is a public right of navigation there is also a right to hunt and fish. There is no natural or necessary connection between the easement of navigation, which is of the same character as a public highway (3 Kent's Com. 427), and the right to hunt and fish where such easement exists. They are in no manner connected with each other, and the two occupations are not prosecuted by the same individuals with the same vessels or by the same means. The Supreme Court of Michigan pointed out the difference and the distinction in such rights in the case of Sterling v. Jackson,69 Mich. 488 (13 Am. St. Rep. 405). * * *

"The argument that the riparian owner has no property in the particles of water flowing in a stream any more than he has in the air that floats over his land, and that the fish in the stream are not his property any more than the birds that fly over his land, does not tend to sustain the proposition that the public right of fishing is included in or incident of the public right of navigation. If the argument proves anything it proves too much, since it applies with as much force to waters which are not navigable as to waters which are."

2 Cooley on Torts (3d Ed.), 673, states:

"The right to take fish in the fresh-water streams of the country belongs to the owners of the soil under them, to the exclusion of the public."

Angell on Water Courses (7th Ed.), § 61, states:

"Concomitant with this interest in the soil of the beds of watercourses, is an exclusive right of fishery; so that the riparian proprietor, and he alone, is authorized to take fish from any part of the stream included within his territorial limits."

And in section 65:

"The rule, that the right of fishery, within his territorial limits, belongs exclusively to the riparian owner, extends alike to great and to small streams."

While the public may have in a river an easement or right to float rafts or logs and pass up and down the same in canoes or boats, such right is not inconsistent with an exclusive right of fishing or with the right of the owner's property opposite their respective lands ad medium filum aquæ. The Queen v.Robertson, 6 Can. Sup. Ct. Rep. 52.

Some authorities divide rivers into three classes:First, when they are altogether private such as shallow streams; second, when they are private property but subject to the public use; and third, when the use and property are in the public. The property in this river at the point in suit is in plaintiff, the owner of the soil, subject to the public commercial easement of right of passage. While plaintiff has the exclusive right to fish in that part of the river included in his ground he must so exercise the right as not to injure the other proprietors above or below him on the stream.

In Beatty v. Davis, 20 Ont. 373, it was held, quoting from the syllabus:

"Ownership of land or water, though not inclosed, gives to the proprietor, under the common law, the sole and exclusive right to fish, fowl, hunt, or shoot within the precincts of that private property, subject to game laws, if any; and this exclusive right is not diminished by the fact that the land may be covered by navigable water. In such case the public can use the water solely for bona fide purposes of navigation, and must not unnecessarily disturb or interfere with the private rights of fishing and shooting."

In that case Chancellor Boyd stated:

"The questions to be dealt with are altogether independent of the frame or policy of the game laws, and fall to be determined upon the common-law rights of the owners of property in respect of fish and wild creatures fit for food harbouring thereon. The right to take and kill fish and water fowl is one which has attached immemorially to the waters, wastes, or marshes, where they are found. It is variously spoken of in the books as being an incident of territorial right, as being accessory to the ownership of the soil, as arising ratione soli, and also (in the case of fish) as being a riparian right. * * *

"The result of the whole is, that the defendants are in the wrong; they came upon the place, not for the purposes of navigation, but to shoot ducks against the protest of the plaintiff. The custom relied upon of persons or of the public going to shoot or fish in that locality year after year does not afford any defense in law against the private rights of the owner. The fact of the place being to some extent navigable water, does not justify any interference with private rights of fishing and fowling."

2 Tiffany on Real Property (2d Ed.), p. 1544, states:

"While the individual members of the public have rights of fishing in waters, the soil below which is the property of the State, except in those cases in which an exclusive right to fish there has been granted by the State legislature or other sovereign authority, they have, as a general rule, no such right in water which covers land belonging to a private individual."

And on page 1545, states:

"Every member of the public has the right of navigation in waters capable of such use, without reference to whether the land beneath the water belongs to the public or to individual owners." * * *

On pages 1547, 1548:

"On principle, moreover, it seems, the fact that the public have a right of navigation, over private land should give them no right of hunting, or fishing."

Among other cases in support of the text, Tiffany citesSterling v. Jackson, supra; Hall v. Alford, 114 Mich. 165 (38 L.R.A. 205). We add Sewers v. Hacklander, 219 Mich. 143.

Mr. Tiffany also states, p. 1548:

"But there are occasional decisions recognizing such a right;" citing California, Wisconsin, and Ohio decisions.

In Albright v. Cortright, 64 N.J. Law, 330, 334 (45 A. 634, 48 L.R.A. 616, 81 Am. St. Rep. 504), the court quoted the following extract from the opinion by Mr. Justice North inSmith v. Andrews, L. R. (1891), 2 Ch. Div. 678, 695:

" 'The idea is sometimes entertained that the right to pass along a public navigable river carries with it the right to fish in it, but so far as regards nontidal rivers this is not so. No lawyer could take that view. Persons using a navigable highway no more acquire thereby a right to fish there than persons passing along a public highway on land acquire a right to shoot upon it. Some few passages may be found in the books in which judges are reported to have said that subjects have a right to fish in navigable rivers, just as in the sea; but on investigation it always will be found that they are referring to navigable rivers where the tide ebbs and flows and nothing else.' "

The court also stated (p. 337):

"It may be true that there is here, as there seems to be in England, a common misapprehension on this subject, and that a good deal of fishing that is thought to be of right is only permissive. But it is not desirable to change an important rule of law merely because it is sometimes misunderstood. In country life a multitude of acts are habitually committed that are technically trespasses. Persons walk, catch fish, pick berries and gather nuts in alieno solo, without strict right. Good natured owners tolerate these practices until they become annoying or injurious, and then put a stop to them."

On this subject see Marsh v. Colby, 39 Mich. 626 (33 Am. Rep. 439).

Counsel for defendant insist the right to fish is an easement incident to the right of navigation.

In Albright v. Cortright, supra, it was held that the right to fish and take fish in alieno solo is not an easement but is a profit a prendre, and being such a profit in another's soil, as distinguished from an easement, must be prescribed for in a que estate.

The rule at common law in England has always been as quoted by the court in Smith v. Andrews, supra:

" 'Upon a full consideration of all the cases, it will, I think, appear that no river has been ever held navigable, so as to vest in the crown its bed and soil, and in the public the right of fishing, merely because it has been used as a general highway for the purpose of navigation; and that, beyond the point to which the sea ebbs and flows, even in a river so used for public purposes, the soil is prima facie in the riparian owners, and the right of fishing private. * * * There are two totally distinct and different things; the one is the right of property, and the other is the right of navigation. The right of navigation is simply a right of way. * * * Where such a river is navigable, free and open to the public, the right which the public has in such a river is substantially a mere right to use the river for the purposes of navigation similar to the right the public may have to passage along a public road or footpath through a private estate.' "

While fish are feræ naturæ, and open to capture in lawful seasons, by those who have a right to be where they are captured, this gives no one a right to fish where he is a trespasser in doing so.

In Albright v. Cortright, supra, it was stated:

"The question, then, is whether, on this branch of the case, the defendant can justify his acts by force either of common or statute law. He cannot do so by common law, for it is not true that a member of the community, merely as such, may enter the land of another in order to get at something that is devoted to the public. For example, highways and parks are devoted to the public, but one may not, therefore, cross another man's farm in order to reach them. Nor can the defendant prevail by virtue of the acts concerning fish and game, for the legislature cannot confer upon the public a general license to commit trespasses, and if it could do so no such intent will be implied, and the statutes do not express it."

We again quote from 1 Tiffany, Real Property (2d Ed.), p. 1038:

"In one or two States the right of fishing has been regarded as incident to the right of navigation, so as to give the public the right to take fish wherever the waters can be regarded as navigable, irrespective of the fact that the land under the water belongs to private individuals. Such a view is not, however, generally accepted, and is by no means satisfactory from the standpoint of principle. The general rule is that one who owns the land under nontidal waters has the exclusive right to fish thereover, unless he, or his predecessor in interest, has granted the right of fishing to another, creating in him a right of profit a prendre."

Defendant was guilty of a trespass, and not saved from action under the public trust theory so generously applied in the opinion of my Brother.

Mr. Henry P. Farnham, in a very able and instructive note in 23 A.L.R. 765, makes the following observations on the trust theory:

"Through a failure to distinguish between the proprietary and prerogative character of the crown's title to the lake beds, or possibly through a failure to remember that the inability of the crown to make such grants at the present time is due to its placing of its desmesnes in trust, as part of the coronation ceremony, many courts in this country have entered into long discussions of the theory that the States here hold the titles to the beds of lakes in trust, which prevents their going into private ownership.

"Such discussions are interesting as matter of history, but are of little practical value in determining the true principles which underlie the granting of such titles."

After citing and quoting from cases, mainly in Wisconsin, Minnesota, Florida, New Hampshire, Ohio, Tennessee, and Washington, he concludes:

"It will be noticed that the above reasoning is a curious mixture of unacquaintance with what, in fact was the common law upon the subject, and confusion of the proprietary and prerogative rights of the crown. It is easy to make precedents, but very difficult to anticipate the ramifications of their application. Courts assume very grave responsibilities when they deliberately depart from the established law which has been the growth of centuries. The above reasoning, applied to the mines, forests, or even the arable land, would transfer their private title to the State as trustee for the public, and establish a communism in place of the present order under which the country has grown and flourished."

Defendant also invokes the following statute:

"That in any of the navigable or meandered waters of this State where fish have been or hereafter may be propagated, planted or spread at the expense of the people of this State or of the United States, the people shall have the right to catch fish with hook and line during such seasons and in such waters as are not otherwise prohibited by the laws of this State.

"No action at law shall be maintained against persons entering upon such waters for the purpose of such fishing, by the owner, lessee or persons having the right of possession of adjoining lands, except for actual damage done." * * * 2 Comp. Laws 1915, §§ 7694, 7695.

This act is a recognition of the common-law right of property we have mentioned and an endeavor to abrogate the same by legislative action. Passing a literal construction which would limit the right of action only of a riparian owner and not an owner of the bed of the stream, and also passing the question of whether the act relates only to persons upon such waters and not those wading the stream, and giving the act the broad construction invoked by defendant, we have no hesitation in holding that it affords no protection to defendant. The legislature may regulate or, if need be, prohibit the taking of fish from this stream, but may not grant common right of entry to defendant's property or award immunity for trespass thereon. Such is not due process of law. A similar act was held void inHartman v. Tresise, 36 Colo. 146 (84 P. 685, 4 L.R.A. [N. S.] 872).

The rights of plaintiff are vested property rights, and cannot be expropriated by legislative permission to the public to enter his close at will.

The judgment should be affirmed, with costs to plaintiff.

BIRD, C.J., and STEERE, J., concurred with WIEST, J.