(after stating the facts). Counsel for appellants contends that plaintiff had no right to fish with these nets in the waters in which they were placed. The ground of this contention is:
1. That the nets were in the waters of St. Mary’s river and not in those of White Fish Bay; that 2 Comp. Laws, § 5865, makes it unlawful for any person to catch fish at any time with pound nets in any waters of the State, excepting those specified in the statute; and that St. Mary’s river is not specified.
2. That St. Mary’s river is a national highway of commerce, and the State can pass no. effective law permitting interference with commerce, and that the setting of nets obstructs navigation.
The statute names the Sault Ste. Marie, St. Clair, Saginaw, and Detroit rivers. It is said there is no Sault Ste. Marie river, and that the court may not assume that the legislature meant to designate these waters by the name Sault Ste. Marie. We are referred to the Webster-Ashburton treaty, to various public documents, and to our own decision in Sherwood v. Commissioner of State Land Office, 113 Mich. 227, in which, uniformly, the designation is “ St. Mary’s.” We are not favored with inspection of a certain marine map used in the trial court. There can be no doubt concerning the legislative intention, and it does not appear that defendants, or their navigating officer, knew about the alleged misnomer, or supposed it to be unlawful or unusual to use such nets in these waters. We agree with the circuit judge that, for the purposes of this case, it is immaterial what name is *27given to the waters in which the nets were placed, or whether, as between himself and the owner of the shore, plaintiff was a trespasser.
No question of conflict of State and Federal jurisdiction over waters or over the subjectof navigation is presented. The theory of the plaintiff’s case and of the charge of the court is that the right of navigation in the waters where the nets were set is paramount to the right to fish. The real question presented is much narrower than the one counsel for appellants has argued. That defendants were exercising a paramount right does not necessarily excuse them. It was well said by Mr. Justice Lyon, in Wright v. Mulvaney, 78 Wis. 89 (9 L. R. A. 807):
“The benefit which the navigator is entitled to claim by reason of his paramount right is, we apprehend, that, when the two rights necessarily conflict, the inferior must yield to the superior right.”
This court long ago asserted that the right of navigation in such waters, though paramount, was not exclusive. People’s Ice Co. v. The Steamer Excelsior, 44 Mich. 229. See, also, Lincoln v. Davis, 53 Mich. 375; Hopkins v. Railroad Co., 131 N. C. 463. Plaintiff complains of the violation of a common-law right, and seeks a common-law remedy. We confine ourselves, therefore, to an examination of the errors relied upon in the brief of counsel for appellants, arising upon the trial, affecting the result of the trial.
It is not claimed there was testimony improperly received or rejected. It is asserted that in charging and in refusing to charge the jury error was committed. The serious complaint, and the only one, perhaps, which we need to notice,- is of the rule laid down by the court respecting the care demanded in the navigation of the boats to discover and to avoid collision with the plaintiff’s nets. For a proper understanding of the criticism made, it is necessary to set out various portions of the charge. In defining to the jury the rights of the parties, the court said:
*28“And if those nets are so set that by mere changing of the course the vessels can safely navigate on their way, then they are lawfully there. The master of a vessel would not be justified, in cases of that kind, if he carelessly, unnecessarily, or wantonly ran his vessel upon such nets and destroyed them. Now, vessels having a paramount right of navigation can lawfully run upon any course in these waters. They can run to all ports and any direction, and to any place. They can run far from shore, or close to shore, or straight along the shore • in a varying course; but in doing so they are required to observe the rules of navigation. It is the duty of masters to operate their boats with care and caution, to watch for other vessels and other obstructions, and to avoid them when possible. If it should appear in this case that these vessels, with rafts, were running closer to shore than the parties navigating them proposed, they still had a right to do so; but it was their duty to watch and discover these nets or any obstruction in the way, and avoid them, if possible to do so, by exercising ordinary diligence, * * *
“ So far as the testimony in this case stands, it shows that these boats were properly equipped and properly manned, and, as I said before, they had a right to pass as near the shore as they were shown to have passed; but in doing so they must have due regard for the conditions surrounding them, and it was their duty, if it was a well-known fact that fish nets were along that shore, to exercise greater care and caution according to the conditions to their knowledge upon that subject. * * *
“ Briefly stated, the rule is this: That it was the duty of those navigating these tugs and towing that raft to do so with caution, to exercise all care and diligence possible to observe these nets or any other obstruction. If they exercised that care and'caution, under the conditions, the time of day, and the condition of the weather, they would not be liable in this case. If they did not, and were careless or negligent, then they are liable.
“ Taking up that proposition again, and giving it in the language of a request, which we have [one of defendants’ requests to charge], you are instructed that the plaintiff had a common right to fish in the waters in question, in common with others, subject to the paramount right of navigation, and also these tugs and rafts had a common right to navigate those waters in question in common with other craft; *29and if any injury was done to plaintiff’s nets by said tugs or rafts, or. either of them, as alleged, you are instructed that if you find the defendants’ tugs and rafts used the said waters in question and navigated their said tugs, respectively, and towed said rafts, in a prudent, seamanlike, reasonable, and cautious manner, at the time of said injury, they were in the lawful exercise and use of a common right, and a lawful right, possessed by each of said defendants, and for which there could be no recovery by this plaintiff, even though damage was done.”
It is conceded by counsel for appellants that, even if the nets were unlawfully in these waters, defendants would have no right to wantonly run into them, and would be required to use ordinary care to avoid them, and claimed that, whether the nets were legally or illegally in the waters, the jury under this charge were permitted to apply a rule concerning the care required which was unwarranted. The argument made by counsel for the plaintiff is that, taking all the testimony into consideration, the jury were justified in finding that the night was clear starlight. That the tugs were carelessly and negligently managed is conclusively shown by the fact that, although claiming to steer by compass and to have determined to sail a course at least a half a mile from shore, followed by a change of course which would have brought the boats a mile and more from shore at the point at which these nets were set, the flotilla actually passed within a quarter of a mile of the shore, indicating that those in charge were asleep, or paying no attention to the course which they were taking, and maintaining no lookout whatever. In our opinion, the testimony made a case upon which plaintiff was entitled to take the verdict of the jury, and it is not clear that, if the court had given the jury the most modified rule respecting the care which defendants’ officers were bound to exercise, the verdict, in view of the testimony, would have been different.
But we are also of opinion that the court laid down a rule concerning the duty of the defendants not warranted and not supported by authority, which rule the jury were *30at liberty to apply. The most favorable rule to which the plaintiff here is entitled is based upon the principle, stated in Wright v. Mulvaney, supra, that the master of the .vessel may not, unnecessarily, by his owh negligence, force the two rights into conflict, and then claim the benefit of the paramount right. The testimony in this case is, and no other conclusion is warranted, that, if the nets had been seen before they were closely approached, no appreciable interruption of the voyage would have followed a change of the course to avoid them. If, therefore, they were so seen, defendants should be held liable. If they were not seen, but their presence was so obvious that the person or persons charged with navigating the fleet, if performing with ordinary care the duties of the position, must have seen them, then it was negligence not to see them, and defendants should be held liable. These views are supported by the reasoning of our own and other decisions already cited, and are not opposed to those expressed in Lewis v. Keeling, 46 N. C. 299; The City of Baltimore, 5 Ben. (U. S.) 474; Cobb v. Bennett, 75 Pa. 326; Post v. Munn, 4 N. J. Law, 61; Gould on Waters, § 87.
As a new trial must be awarded, discussion may properly end here. The judgment is reversed, and a new trial granted.
Grant, Blair, Montgomery, and Hooker, JJ., concurred.