(dissenting). This is an action in trespass,, commenced in justice’s court, where judgment was rendered for the plaintiff.
Upon appeal to the circuit court for the county of Monroe, and a trial there had before a jury, a verdict was directed for the plaintiff, and his dam ages were assessed at six cents.
The declaration alleges that the defendant broke and entered the close of the plaintiff, whereof he is the owner and in actual possession, and with his boat, oars, and paddle, in rowing and punting, broke down and destroyed the wild rice and grass there growing, and with his gun shot at, wounded, and killed and frightened away the wild ducks and other game there resting and feeding, and other injuries then and there did, against the peace of people of the State of Michigan, and to the plaintiff’s damage of $100.
The defendant pleaded the general issue, and gave notice that he would show, under said issue, that the close where the said injuries were alleged to have been committed, was the freehold of the defendant, and that the said close was a common public highway, free to said defendant, and that all the acts alleged to have been committed were done in his own, right and lawfully.
*520Technically, within the proofs, no wild rice or grasses were broken down or destroyed, and no dncks or other wild game, resting and feeding upon the premises claimed by plaintiff, were shot at, wounded, killed, or frightened away by the defendant.
. But the land to which the plaintiff avers title, and the spot where the trespass is alleged, is covered by water, and to all appearances a bay of Lake Erie, and the ducks shot at and killed were flying over said bay from the lake towards the main-land or marshes thereon.
As the case stands in this Court, it must be considered upon the testimony as given upon the behalf of defendant, and the circuit judge so regarded it in making his ruling in favor of the plaintiff.
The first question relates to the title. The plaintiff holds, by mesne conveyances, under a patent from the United States to the State of Michigan, dated August 16, 1883, describing the premises as — ■
“ Fractional section eleven (11) north of private claim, in town seven (7) south, of range nine (9) east, county of Monroe and State of Michigan,”
This piece of land, with other parcels, was conveyed in this patent as “swamp and overflowed lands” selected, in pursuance of instructions from the general land-office of the United States, under an act of Congrsss approved September 38, 1850, and entitled—
“ An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.”
This patent, and the conveyances following it, were objected to on the ground that the patent was issued without legal authority, and therefore void. It was claimed that a part of the lands described in the declaration and in this patent, including the particular place where the shooting was done, was covered by a reservation for light-house purposes añade in 1853.
*521It seems that the lands were surveyed in 1850 by William Ives, a deputy surveyor of the United States, and a map made by him was introduced showing certain lands, embracing the locality of the alleged trespass, shaded green. Upon the margin of this map 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 Monroe county of the same survey, but upon a reduced scale, with the same green shade, which shade was shown by testimony to indicate a reservation for light-house purposes.
This was all the evidence introduced tending to show a reservation for light-house purposes.
It is claimed by the plaintiff that these lands could not be reserved for such purposes in 1852, as, being swamp or overflowed lands, they passed in 1850 to the State of Michigan, and the State accepted such grant in 1851; that the title of the State then became perfect, and that the patent of 1882 relates back and gives certainty to the title of the date of the grant; that the President of the United States, after the passage of the act of 1850, had no authority to make a reservation therefrom, — citing Saving Union v. Irwin, 28 Fed. Rep. 708.
Granted that this be true, yet another serious question as to the title arises in the case. There was plenty of testimony tending to show that, previous to the passage of the swampland act of 1850, the spot where the shooting took place was an open bay of Lake Erie, and navigable water. If this were the fact, I doubt the authority of the Secretary of the Interior to select the same as swamp or overflowed lands, and to patent the same. I do not think the waters of Lake Erie, even in its coves or bays, can be made land by the mere ipse dixit of that officer. Nor can the land under them be con*522veyed away from the public to particular individuals, in my opinion.
It is contended by the counsel for the plaintiff that the determination of the Secretary of the Interior cannot be attacked in a suit at law, and we are referred to the case of French v. Fyan, 93 U. S. 169, in support of this contention.. It was there held that a patent for swamp land could not be invalidated in an action at law by parol proof that the land was not swampy or overflowed, nor wet or unfit for cultivation.
But this decision cannot be applicable to a case where the patent does not cover actual land, but water to the depth of from three to seven feet, which is navigable and apart of the Great Lakes. The fact that there was no land within the description to be conveyed, and consequently no title in the government to be granted, can be shown by parol in opposition to the recital in the patent. It was so ruled in this- , State in Webber v. Boom Co., 62 Mich. 626 (30 N. W. Rep. 469).
The question, therefore, whether, at the time of the passage of the act of 1850, this bay or opening where the shooting took place was a part of Lake Brie and navigable water, should have been, under proper .instructions, submitted to-the jury. If found to have been so, the jury should have rendered a verdict for the defendant, as the patent would in such case be invalid in undertaking to convey away this bay,, or the soil under it.
There is another difficulty with the plaintiff’s title, arising upon the record, not fully explained to my satisfaction. A government survey of this territory was made in 1810 to fix the boundaries of certain private claims of the old inhabitants. This survey established private claim No. 512 as extending to the then shore of Lake Brie, and included the point where the shooting was done. The boundaries of this, claim have since been moved westward from the lake, so that *523the survey of 1850 shows the locality of the alleged trespass-without the limits of the said private claim, and within the lands reserved for light-house purposes. This showing was made by plaintiff himself, and no right or authority to change-this boundary of private claim 512, as established in 1810, and remove it from the lake, front, appears outside of the fact that a patent for the premises was issued in 1882, conveying it to the State of Michigan under the swamp-land act. How or when or why this private claim, after being once established, was interfered with, and pushed back from the lake, is not shown in the record, except the parol showing that such private claim contained too many acres of land, and was-cut down by somebody, at some time, to 640 acres, and the boundary line moved westward, and away from the lake.
Thus the plaintiff put his own title in jeopardy by showing-a prior title in another, without also showing a sufficient removal or discharge of it.
The title of the plaintiff is not as satisfactory as it ought' to be, admitting that the premises are not lake, but land. But, in the view I take of the merits of the whole controversy, the title becomes entirely immaterial, and therefore I shall examine it no further.
Taking the evidence on the part of the defendant as a true statement of the character, situation, and surroundings of the locus in quo, we find that the spot where the defendant-did his shooting at wild fowl lies within an opening, cove, or bay of Lake Erie, 272J feet from a line stretched from cape-to cape, or from headland to headland, at the mouth of the-bay, and where it opens into the lake proper or main body of water.
The mouth of this bay, where it meets the lake, is shown by this line to be 2,273 feet wide, — nearly half a mile. It is-open, and covered by water across its entire width at the mouth. It narrows inward and westward. At its western end its extent from north to south is about 750 feet, and it is-*524from 850 to 900 feet from the western shore to the lake proper. The bottom of this bay, over nearly its whole extent, is hard and sandy. No flags grow in it, but there is, in the shallowest places, an occasional bunch of rushes.
Between the lake and the spot where the trespass is claimed to have been committed there is no growth of grass, weeds, or rushes, nor any dry land. The water in this bay varies in depth with the wind, being deeper when it blows from the lake, and shallower when it comes from the shore. The depth is from five to seven feet at one time, and from two to five feet at the other.
It is deep enough to float a row-boat at any time, and in all places. There is a bar at the mouth, claimed by plaintiff’s witnesses to be an old shore line, and to have been such a line in 1850, at the time of Ives’ survey. Upon this bar the water is about two feet deep. There is, however, a well-defined channel through this bar, in which the water is from three to four feet in depth. Sandy creek now runs into this bay, and discharges its waters through it into the main lake. This bay has been used by the public, for purposes of sport and commerce, for many years. It is a common passage-way for small boats, scows, and. vessels, some carrying five or six tons, between Brest and the city of Monroe. It is a regular channel to Monroe by way of Sandy creek. In summer this passage-way is used daily, and has been for over 10 years, by row-boats. Scows, for 20 or 30 years, have been in the habit of going into this bay from the lake, to get sand from the shores by lighters, and going out into the lake again. Such vessels drew from three to four feet of water, and have carried as high as 65 tons. A boat of six tons burden has gone through into the bay and up the creek.
In.this bay, less than 300 feet from the lake proper, and more than 300 feet from the nearest shore, the defendant stopped a ducking-boat, rigged with a blind or hide, and shot *525at and killed wild ducks on the wing, as they were flying in or over from the lake.
The boat was landed in a thin growth of rushes. It is not shown whether it was anchored, save as the rushes may have held it in place. North of his boat, and in deeper water, the defendant placed some decoys, anchored to the bottom, to call the ducks to his vicinity.
The water where the blind was located was, on the day of the shooting, from three and a half to four feet in depth.
The plaintiff holds his title to the premises for a club or association of sportsmen, and their game-keeper ordered Jackson off from the premises. He refused to go, claiming at the time that he was shooting in open water, which was a part of Lake Erie, and that he, in common with the public, had a right to stop his boat and shoot ducks there, and to recover and hold as his own the game there killed.
There is no doubt, from all the testimony, that at one time, and at the time of the first survey, in 1810, the east line of the premises claimed by plaintiff, and described in the patent as fractional section 11, was á continuous sand beach. West of this beach, which Was a narrow one, was marsh and water, embracing within its limits the spot of the shooting. About 40 or 45 years ago the waters of Lake Erie broke through this narrow beach, and entered this marsh. The opening has ever since been increasing in width, and also in the depth of water in the bay, and over the bar. Eor many years this old beach has been nothing but a sunken bar. The cutting through of this beach, and the yearly widening of the same, and the deepening of the water, has been due alone to natural causes. When the patent was issued, the premises were very nearly in the same condition that they were at the time t>f the alleged trespass.
The plaintiff showed by a surveyor, Mr. Bartlett, that in 1850, when Ives made his survey, the shore line, now indicated by the sunken bar, which, by the action of the waves, *526has been pushed somewhat westward, was continuous along the east line of fractional section 11, and above water, and that there were then some willows and small sycamore trees growing in places upon it. But some of the defendant’s witnesses testified that the cut was open, and the bay connected with the lake, and its waters navigable, for several years before that time.
As a verdict was directed by the court in favor of the plaintiff, we must, in determining whether such ruling was correct, rest our decision upon the evidence and showing in behalf of the defendant, in all cases where there is any dispute as to a given fact in the testimony.
It is contended by the plaintiff that the defendant had, in no event, under the proofs, a right to shoot ducks where he ■did, and in the manner he did, and he claims—
1. If the title to the soil under the waters of this bay is in the plaintiff under the grant in the patent from the TTnited States, the fact that the bay is navigable, aud that all persons have the right to use it for purposes of navigation, does not authorize the defendant, or any other person, without the plaintiff’s consent, to stop his boat upon the waters to take fish or shoot wild fowl.
2. If the plaintiff does not own the soil of this bay by virtue of his grant, yet, by reason of his riparian rights as owner of the shores and soil bordering upon the water, he holds the soil under the water, and has the exclusive right to take the fish therein, and to shoot thereon the wild fowl flying over or resting upon the premises.
It must be considered as well settled that no man has any property in wild fowl until he has killed or captured the same. It makes no difference whose land they are flying over, or upon whose soil or water they are resting or feeding. Such passing over or stopping upon the premises gives the owner of the same no more property in them than if they were on or over the lands of another. If so, the land-owner could kill and destroy wild animals and birds without any reference to •or regard for our game laws, if they were upon or flying over *527Tiis premises at any time, as the law could not well, under our 'Constitution, limit him thus in the use of his property. If any person is rightfully upon the premises of another, he has the same right, under the law, to kill and capture the game thereon, and to hold the same as his property, after the killing or capture, as the owner himself would have.
The question, then, is, has a man, lawfully upon a navigable stream, a public highway, or any body of navigable water, ■a right to kill wild game upon such water, or flying over the same? We can borrow no light, in this discussion, from the English game and forestry laws, which are not a part of our common law, and which are repugnant and hostile to the theory of our institutions.
The wild game and fish abounding in our woods and waters have never been the property of the general government or of the State, in the sense that they were held the property of the crown in England No man here is granted special permission by the National or State government to kill game or catch fish'exclusively at certain times or in certain places.: Our game and fish laws are general, and apply to and govern the whole people. The fish of our waters, and the game of our woods, and the wild birds of the air, belong to the people, and not lo the crown, and should always, when they can be captured or killed without detriment to private rights, be preserved to the people.
Game and forestry laws are not in harmony with the American idea, and are of late origin in the history of our country. Such laws can only be supported and justified on the ground that the game is fast disappearing, and ought to and must be protected and preserved for the use and benefit of the people, — for the general public, and not for a specified few. Our fish and game laws have not been passed for the express benefit of clubs of wealthy sportsmen, who can afford to buy up or lease all the land along the navigable streams and lakes of this State, and thus shut out the poor man who loves the rod *528or gun as well as they do, and who, in the spirit of our institutions, has a common right with them in the “fowl of the air and the fish of the sea.”
Large expenditures of money, drawn by taxation from all the people, rich and poor, — the poor man, as usual, paying at least his full proportionate share, if not more, — are being made annually to stock the public waters of this State with brook trout and other food fishes. The expenses of a game-warden, and his deputies, lately added, in maintaining and enforcing the game laws, are borne by all, under the usual methods of taxation.
The Pilgrim' fathers, fleeing to the new world from the tyrannies of a despotic era in the history of the mother country, brought with them, not only religious ideas, but many other notions as to the rights of the common people not then prevalent or countenanced in England; and the old colony of Massachusetts Bay. early adopted laws looking towards the establishment of a common right in the people to the fish and wild game then abounding in the waters and woods of the new world.
In 1641 or 1647 it was enacted:
“ Every inhabitant who is an householder shall have free fishing and fowling in any great ponds, bays, coves, and rivers, so far as the sea ebbs and flows, within the precincts of the town where they dwell, unless the freemen of the same town, or the general court, have otherwise appropriated them: Provided, That no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land, and that no man shall come upon another’s propriety without their leave, otherwise than is hereafter expressed.”
Another and later section in the same act provided that—
“And for great ponds lying in common, though within the bounds of some town, it shall b Qfree for any man to fish and fowl there, and may pass and repass on foot through any man’s propriety for that end, so they trample not upon any man’s corn or meadow.”
*529Chief Justice Shaw says that—
“ The great purpose of this act was to declare a great principle of public right, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive fisheries, and to make them all free.” See Com. v. Alger, 7 Cush. 53, 68; Weston v. Sampson, 8 Id. 347; West Roxbury v. Stoddard, 7 Allen, 158.
In Maine the right to fish in navigable waters, even over private soil, was secured to the public, and it is there held that a mere grant by the state of land covered by navigable water confers upon the grantee no greater rights than he would have had had he owned it without such, direct grant, and as a riparian owner. Parker v. Mill Dam Co., 20 Me. 353; Moulton v. Libbey, 37 Id. 472; Parsons v. Clark, 76 Id. 478.
The principle of free fishing and fowling has passed into the organic law of Vermont, where shooting on uninelosed lands, and fishing in boatable waters, are declared free to the public. Const. § 40.
The common law of England, as far as navigable waters were concerned, recognizing the property of the fish therein to be in the crown, gave no right of fishing to the owners of the shore superior to that of the public, except by the granting of special rights and privileges by the king. But navigable rivers were limited, in the meaning of the law, to streams having an ebb and flow of the tide, and their navigability extended no further than the tides went. All persons had a common and general right of fishing in the sea, and in all bays, coves, branches, and arms of the sea, and in all other navigable or tide-waters. This right covered the gathering of shell-fish on the bottom, as well as the taking of swimming or floating fish.
But in streams or bodies of water where the tides did not ebb or flow, under the common law, the riparian proprietor, if he owned the land on both sides of the stream, could pre*530vent any one coming upon his land, and taking fish out of the stream; and the same rule was held to extend as far as his ownership of the soil went, — to the thread or center of the stream. Within such limits his right of fishing was sole and exclusive, unless restricted by some local law or well-established usage or custom of the place.
It will thus be seen that the common law gave the riparian owner the right of exclusive fishing upon streams running through or along the line of his lands, because, such streams not being navigable, no person had any right to be upon them, within his premises, or opposite them upon his side of the stream, without his consent or permission, any more than they would have the right to be upon his, lands without such consent.
But the great Northwest, of which our State is a part, is governed in this respect by the ordinance of 1787, which provided that—
“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the Confederacy, without any tax, impost, or duty therefor.”
This ordinance applies, not only to the Great Lakes, but to all the streams discharging their waters into the lakes, or into the Mississippi and its tributaries, upon which had been floated, prior to the adoption of the ordinance, the commercial products of the country, not only in vessels, but in bateaux and canoes. It must also be remembered that this commerce then consisted mainly of fish, and the skins of wild animals. It was an ordinance saving to the hunter and the fisherman the right to navigate these waters, free of charge, upon his way to market the products of the chase, and it needs no great stretch of construction to hold that it *531also preserved to him forever the right to hunt and fish upon them.
It follows, therefore, from the clear language and intent of this ordinance, that the navigability of the waters of Lake Erie, and of the streams of this State, does not depend upon any tidal ebb and flow. No such ebb and flow exists in the whole Northwest territory.
Our own decisions, in great number, which need not be cited, clearly state the conditions which constitute navigability in the streams and lakes of this State. If the common-law doctrine prevailed, there would be no navigable water in this State, or bordering upon, although we are nearly surrounded by great inland seas, but seas without tides.
If the right of the public to fish in any body of water depends upon its navigability, as it seems to under the common law, then, if the navigability is extended, as it is here, to the Great Lakes, and other lakes and streams in this State, which are non-tidal waters, then, in reason, the public right to fish therein ought to follow such navigability as extended by our laws.
And disregarding the game and forestry laws of the old country, which have no place here, and do not belong to our common law, the right of fowling must be determined upon the same principles as the right of fishing.
It has been correctly held, I think, in Ohio, that the right’ of fishing in Lake Erie and its bays is not limited to the proprietors of its shores, and that such right is as public as if their waters were subject to the ebb and flow of the tide. Sloan v. Biemiller, 34 Ohio St. 492. As to the other great inland lakes of the United States, see the following cases there cited: State v. Gilmanton, 9 N. H. 461; State v. Falls Co., 49 Id. 250; Fletcher v. Phelps, 28 Vt. 257; Austin v. Railroad Co., 45 Id. 215; Railroad Co. v. Valentine, 19 Barb. 484; Ledyard v. Ten Eyck, 36 Id. 102; People v. Gutchess, *53248 Id. 656. See, also, West Roxbury v. Stoddard, 7 Allen, 167; Commissioners v. People, 5 Wend. 423, 447, 451.
In a later case it was further held in Ohio that a landlocked bay of Lake Erie, connected by an opening with the lake, might be susceptible of private ownership by grant; but, the waters of the same being navigable, such ownership must _ be held subject to the public rights of navigation and fishing, and that no mere grant of the land covered by such waters destroys this public right.
“ The private grantee of the land cannot do anything that will interfere' with the channel, or hamper the passage of water-craft through it; but he may, without the limits of the channel, erect fishing-houses, or such other structures as his means and the depth of water will permit; he may convert shallow portions into cranberry patches; he may fill up other parts, aod make solid ground. Although such action by him may lesson the water surface available for the fishing boats, the fishermen cannot complain. Such public right to fish always yields to any permanent improvement by the owner of the land on which the water rests.” Hogg v. Beerman, 41 Ohio St. 81, 98.
This seems to me sound doctrine as applied to the case in hand, and that the right of shooting wild fowl upon the water rests upon the same great principle as the right of taking fish therein. Both fish and water fowl are the property of him who kills or captures them. Neither of them have . any relation to or connection with the soil beneath the water, and are in no sense and by no sophistry of reason even a part of the land, and do not make their home upon it, save as they swim in or upon the waters that cover it. They both belong to the water rather then the land. Both are used largely for food, and are great sources of sustentation to mankind, and the common right and privilege of all to take them upon and in the public waters should never be denied in a free country, or farmed out as a special favor to a fortunate few.
*533In all the oases in the United States where it has been decided that the exclusive right of fishing belonged to the owners of the banks of the lakes or streams, it has been confined to such lakes and streams as were not navigable in fact, or wholly inclosed within the lands of one proprietor, or the courts have erroneously, as I think, made the same distinction that prevails in England in applying the principles there laid down as to non-tidal waters, without properly taking notice that a navigable stream here is not .confined to one having an ebb and flow of the tide, but to any one that is navigable in fact.
As before said, by the common law of England fishing is free in all navigable waters. Applying this rule of the common law properly to all our navigable streams, discarding the question of tide waters, which cannot prevail here, and the right of the public to fish must be, and ought to be, free in all our streams and lakes that are navigable in fact, and declared navigable under our laws.
It seems to me that the ownership of the riparian proprietor in the soil under the water cuts no figure in the solution of the question. The ownership of such soil gives no property to the landed proprietor either in the fish or wild fowl, —a proposition, as before shown, which cannot be disputed. They are not like the rocks in the bottom of the stream, or the ice that forms upon its surface. They are wild things, in which no man has property while they are alive and untamed. And I find no case holding that the great inland lakes of this country are not free to all in fishing and fowling. The principles governing non-tidal waters in England are not applied to them, and I know of no sound reason why there should be any distinction made in this respect between these lakes and other navigable waters.
An examination of the following cases will show the basis of the rulings to be as I have above stated: Hooker v. Cummings, 20 Johns. 90; Waters v. Lilley, 4 Pick. 145; Com. v. *534Chapin, 5 Id. 199; McFarlin v. Essex Co., 10 Cush. 304; Beckman v. Kreamer, 43 Ill. 447; Adams v. Pease, 2 Conn. 481; Smith v. Miller, 5 Mason, 191.
In some of the decisions the right of the riparian owner seems to be confined to the use of nets and seines in connection with the lands possessed by him. Ice Co. v. Shortall, 101 Ill. 46, citing Ang. Water-courses, § 67.
I have been unable to find any case in the United States that prohibits one lawfully upon the water, as in transit upon a navigable river, from taking fish therein with hook and line; and the majority of this Court, as it was then constituted, seem to have settled the doctrine in this State that such fishing cannot be complained of by riparian owners, in Lincoln v. Davis, 53 Mich. 391 (19 N. W. Rep. 103).
It may also be stated, in this connection, that the right to fisheries in the Susquehanna, Delaware, and other large rivers of Pennsylvania, though the tide does not ebb and flow in them, is vested in the state, and open to all. Carson v. Blazer, 2 Bin. 475; Shrunk v. Navigation Co., 14 Serg. & R. 71; Fishing Co. v. Carter, 61 Penn. St. 21. And in North and South Carolina fishing is held free and common to all in the navigable fresh-water streams of those states. Cates v. Wadlington, 1 McCord, 580; Collins v. Benbury, 3 Ired. 277, 5 Id. 118; Wilson v. Forbes, 2 Dev. 30; Boatwright v. Bookman, Rice, 447; Fagan v. Armistead, 11 Ired. 433.
The right to take fish with hook and line in navigable-waters must necessarily carry with it the right to stop and anchor one’s boat, and to stay in one place for shorter or longer periods, as the occasion requires.
If the riparian proprietor owns the soil in the bed of the-stream, yet, nevertheless, such anchorage is no damage to him, unless he owns also the fish in the river, or has the exclusive right of taking them therein. There is no injury to his property by such anchorage, and there can be no claim for damages without injury. And it seems to me that the-*535principle governing and controlling the right to fish with hook and line must also govern and control the right to shoot wild ducks, as exercised by the defendant in this case.
Under the well-settled law of this State, the proprietors of the land upon the banks of a navigable stream, like the Grand river, own the bed of the stream to the center. I have, however, the right to pass up and down that stream in a rowboat, and no landed proprietor of its banks, and no association of sportsmen, who may have leased for several miles the lands upon both sides for shooting or fishing purposes, can prevent my doing so.
A traveler for pleasure has as much right upon navigable water as a traveler upon business. The Grand river below Lyons, at least, is a public common highway, upon which is-floated annually large amounts of logs and lumber; and I, though a devotee of pleasure or lover of nature, with no busi- ' ness ventures upon its bosom, have a right upon it, equal to. the log-runner or any other man.
The right to bathe in its cool depths, to feast the eye upon-its lovely landscapes of water, wood, and meadow, as I lie-dreamily in my fastened canoe or anchored boat; the right to-bask in the glad sunshine, to look up into the blue sky, to-breathe in the pure air; the right to hear the gentle murmur of the wind, to listen to the music of the singing birds, or even to note the ripple of its waters as they beat upon the shores of the riparian .owner; and the right to fill and gladden every sense with the joy and beauty of nature, — are mine; and the proprietor of the soil under the bed of the stream has no authority or power to drive me away. For these things are free, and God has ordered it so.
By what law, divine or human, written or unwritten, is the riparian owner authorized, like a policeman upon a crowded street, to order me to “move on?”
So have I also the right to cast my line into its waters, to lure, with baited hook or painted fly, the bass and perch into *536my hand or landing net, or to stop with my fowling piece the swift flight of the teal and mallard as they pass by or over me. For these things are also free, and the property of no man until taken; and, as yet, there is no law in Michigan that takes these enjoyments from me, or gives the bank-owner or his lessee the right to charge me for it, or drive me away from it.
It is, however, here gravely contended that these privileges are not mine, and that they are not to be enjoyed in common by the people of this State.
It is claimed that the proprietor of the banks, or their lessees, have, under the law, the exclusive right to fish and shoot upon our navigable streams; that they can prevent my taking fish in Grand river, or shooting wild fowl Hying over it; that I have no right to anchor my boat or stop it for a moment to bait my hook, load my gun, pull in a fish, or pick up a duck, if by so doing I have to cast anchor or fasten to the soil in the bed of the stream. Such acts are trespasses, it is argued, upon the land of the riparian owner. If this be true, then I cannot anchor or fasten my boat to enjoy the air or sunshine, or to pluck a wild flower growing in the stream.
This is the legitimate and logical result of the doctrine contended for by the plaintiff in this suit.
If this principle be established as law in this State, then' there can be no fishing or shooting here for the man without riparian rights, or who is too poor or lowly to gain admittance to a club, except by license or permission from his more fortunate neighbor, save upon the surface of the Great Lakes, or upon government or State land, at a great distance from his home.
It is a matter of common knowledge that clubs of wealthy sportsmen in some portions, of our State are now following up the planting of brook trout in our waters by the fish commissioners, and leasing, as far as possible, the lands through which the streams,- so stocked, run, for the purpose of *537aggrandizing to themselves the benefits of the endeavor of the State to increase the supply of fish food at the public expense.
I cannot give my judicial sanction to the practical selling out of the public waters, the navigable streams of this State, for purposes of fishing and fowling to a favored few, to be stocked and replenished year by year at the expense of the public, and the shutting out of the great mass of the people, who bear the burden of such expense, from a right and enjoyment as dear to some of them, at least, as it can be to any riparian owner along such streams, or any member of a club or syndicate who have leased such owner’s premises.
If the English reports were full and overflowing of precedents to sustain such a holding, it would not bear a feather’s weight upon my interpretation of the law as adapted to our civilization, and as in accord with the genius and spirit of our free country, — “ a government by the people, of the people, and for the people.”
In my opinion, in the solution of this case, it makes no difference whether the plaintiff owns the soil under the waters of this bay by virtue of the grant in his patent, or as a riparian owner of the shore.
It must be conceded, from the testimony, that for at least 30 years it has been navigable water ] while, by the showing of some of the defendant’s witnesses, it has been such for 45 years.
It is well-settled law, with no respectable authority disputing it, that even where a person owns the soil by grant, and the waters of the sea or a navigable lake encroach upon it, and it thereby becomes covered with navigable water, and a part of the sea or lake, until such waters recede, or the land is otherwise reclaimed, and so long as it continues navigable, the public right to use it for purposes of navigation prevails.
As long as it remains as it is, the people, the common *538public, have a right to navigate it. They can cross over it, and pass up and down it, and the plaintiff is powerless to stop them. This is virtually conceded by his counsel.
And, if the people have this right to pass over it, they have the right to take fish in its waters by hook and line, or in any other way common to all under our laws. They have the right to kill or capture ducks or other wild fowl resting or feeding upon its waters, or flying over it. They have the right to call such ducks or other wild fowl by all the devices known to sportsmen, and not prohibited by the general game laws, and in the seasons not inhibited by such statutes, from the air, land, or lake, upon or over the waters of this bay, as long as it shall remain such. If the plaintiff owns the soil by grant, he has a right, no doubt, to reclaim it by dykes or levees, but until he does so the public have the right to use it, as long as its waters are navigable.
It is a mistake to suppose that there has ever been a decision or ruling of this Court to support, directly or by analogy, the contention of the plaintiff that the riparian owners of the shores of navigable waters have an exclusive right to take the fish therein, or kill the wild fowl resting or feeding thereon, or filing over the same.
Nor does the killing of game upon the premises of another» in my opinion, vest the property in such game in the landowner, even though the person killing such game may be a trespasser.
There is no analogy between ice forming on such waters, and the fish or fowl in or upon them.
The ice belongs to the soil by reason of its attachment thereto, and, therefore, is considered by most of the authorities as a part of the land, while fish and fowl do not belong to the soil, and are no part of the land. There is no proprietorship or property in them until captured or killed.
In Bigelow v. Shaw, 65 Mich. 341 (32 N. W. Rep. 800), the ownership of ice is determined, and the various cases in *539this State bearing upon the subject, and upon the rights of riparian owners on navigable and non-navigable waters, are cited or reviewed. It is there held that the ownership of' the soil, and not the possession of the water, carries the property in the ice forming upon streams and ponds. See, also, Clute v. Fisher, 65 Mich. 48 (31 N. W. Rep. 614); Lorman v. Benson, 8 Id. 18; Ice Co. v. Excelsior, 44 Id. 229 (6 N. W. Rep. 636); Higgins v. Kusterer, 41 Id. 318 (2 N. W. Rep. 13).
None of these cases, or others cited by counsel for plaintiff, give any support to plaintiff’s claim. See Rice v. Ruddiman, 10 Mich. 125; Watson v. Peters, 26 Id. 508; Maxwell v. Bridge Co., 41 Id. 453; Richardson v. Prentiss, 48 Id. 88 (11 N. W. Rep. 819); Boom Co., v. Adams, 44 Id. 404 (6 N. W. Rep. 857); Clark v. Campau, 19 Id. 328; Gas Light Co. v. Industrial Works, 28 Id. 182; Webber v. Boom Co., 62 Id. 626 (30 N. W. Rep. 469); Turner v. Holland, 65 Id. 453 (33 N. W. Rep. 283).
In Lincoln v. Davis, 53 Mich. 391 (19 N. W. Rep. 103), Mr. Justice Campbell, in the prevailing opinion, says:
“ Such fishing as is done with lines from boats, even in narrow streams, cannot be complained of by riparian owners. The fish are, like any other animals, ferce naturce, and in this region have always been regarded as open to capture by those who have a right to he where they are captured.”
This language seems to settle the question of fishing, and must, by every legal analogy, apply to wild fowl as well as to-fish and animals.
In Marsh v. Colby, 39 Mich. 626, and Burroughs v. Whitwan, 59 Id. 279 (26 N. W. Rep. 491), the decisions were based upon principles applicable to non-navigable waters, and to ponds whose soil and shores were held by grant. In neither case could the party claiming the right to take fish, in opposition to the right of the land-owner, get his boat upon the pond without trespassing upon the premises of such owner,, and he had no right to be there for any purpose. In the lat*540ter ease he had been forbidden entry upon such premises. In the case of Marsh v. Colby he was held not liable in trespass, because he had not been so forbidden before commencement of suit. In neither case was it adjudged that he could not have taken fish with hook and line, if he had been lawfully upon the pond with his boat, or that the fish in the pond were the exclusive property of the land-owner.
As to fishing with nets and other appliances which require staking or fastening to the soil, the customary exclusive use for many yea^s by the owners of lands fronting upon the Great Lakes, and the rivers connecting them, of the waters adjoining their premises for purposes of fishery, has doubtless grown into a right which cannot now be well disputed or disturbed. Such right has been recognized by the Legislature in enacting laws for the better preservation and protection of fish and fisheries, as extending to the channel banks of the rivers, and to one mile from the beach or shore at low water mark of the lakes, and their straits, inlets, and bays. How. Stat. § 2172; Lincoln v. Davis, 53 Mich. 375 (19 N. W. Rep. 103); Soloman v. Grosbeck, 65 Id. 540 (36 N. W. Rep. 163).
But no such custom has grown up as to hunting. Our laws also, as yet, have failed to give to or recognize in the riparian owner the absolute or exclusive right to shoot wild fowl upon navigable waters in front of his land. He can prevent any person from standing upon or occupying his land to shoot upon the waters; but, where such person has a right to go with his boat upon the water, he has a right to pursue, either for purposes of sport or for a livelihood, the wild fowl found upon the water, or winging their flight across it.
With the right- to kill or capture such wild fowl necessarily goes the right to use such means as may be most effective to accomplish such purpose, provided the captor keeps within the general laws of the State relating to the *541protection of game. He has the right to anchor his boat, and to fasten his decoys to the soil. It injures no right of the riparian owner, except the common right that he possesses with others of killing and capturing game where he can find it upon the water highways or public passages.
It is not contended here that the soil was injured, but the broad ground is taken that the exclusive right to hunt wild fowl in this bay belongs to the company represented by the plaintiff. It is sought to sustain this claim by the decisions of the English and Irish courts. Its adoption here is. to bring into Michigan that policy of the laws relating to wild game which deprives every man but the landlord or his lessee of the heretofore common public right to fish and hunt upon the public ways and waters of this State, — a policy which, in the not far-distant future, will debar the poor from any profit or pleasure in the pursuit of game, and sometime may, perhaps, as in Ireland, permit men to starve in sight of streams and lakes abounding in fish, and woods filled with wild game.
I have not deemed it necessary to borrow law from such a source when its every principle is foreign and adverse, not only to our well-established usage and custom, but to the spirit and essence of that universal freedom which belongs to • and is protected by our institutions.
The principles upon which this case ought to be adj udicated might have been stated in much shorter compass, and rested entirely upon the law as laid down by all the courts of this country, without dissent, in reference to the Great Lakes, of which this bay is now, and at the time of the plaintiff’s grant was, unquestionably a part.
But, in view of the growing scarcity of game in this State, the efforts of the State, at public expense, to propagate, protect, and preserve it, and the evident disposition of a few to acquire dominion, through the riparian proprietors, over the inland navigable lakes and streams within our borders, and *542to shut out the great mass of our people from the enjoyment of hunting and fishing, and thus acquire at least a qualified, if not absolute, property in wild fowl, mostly migratory, and seeking here only resting and feeding grounds in certain seasons of the year, I have deemed it my duty to protest against any holding that will deprive any man of the common right, as I believe, of all to use the public highways, on water and on land, in the pursuit of fish and wild game, which is the property of him who takes them, and which, until taken, belong to no one under our laws.
I have therefore set forth, as well as I am able to do, the reasons why, in right, justice, and law, the navigable streams ■of this State, and other bodies of water while open to navigation, should be forever free and unrestricted in fishing and fowling to all who have a right to row a boat or push a scow upon them.
Any other declaration of the law than that which shall forever preserve to all the people of this State the right to fish and hunt upon government and State lands and the public ways of this State, one in common and equal with another, will be, in my opinion, a step backward, and unworthy the expounders of the law in a free country, where all are supposed to enjoy equal rights and privileges before the law.
Therefore, without reference to the question of title in this case, I think the defendant, under his showing, had a right to shoot ducks as he did and where he did.
The judgment should be reversed, and a new trial granted.