I am unable to agree with Mr. Justice Ostrander in this case, and will briefly state my reasons.
I do not conclude from this record, measured by the holdings of this court, that Winans lake is a non-navigable body of water, or that its outlet is a non-navigable stream. The lake itself covers 100 acres, and is certainly a floatable body of water. Its outlet connecting it with Gut, Zukey, and Strawberry lakes flows into Huron river and Lake Erie. The fact that this outlet has a capacity sufficiently large to allow small boats to come up stream into Winans lake demonstrates to my mind that it has sufficient capacity to float logs down stream. It therefore has a sufficient capacity, a sufficient capability, to perform a valuable service to the public. If it has the capability of such valuable use, it is not of importance that it is not now so used. Its capability determines its character and fixes the rights of the parties; its use or nonuse does not change its character. I entertain no doubt that millions of feet of forest product have been floated to mill and market through lakes and streams much more inconsequential than this lake and outlet without a thought by owners of subaqueous lands that a trespass had been committed, or their rights invaded.
The narrow construction of what were and what were not navigable waters, and limiting the term “navigable waters” to those only where the tide ebbs and flows, never found lodgment here. The leading case of Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. *521209), early laid down the rule in this State which has not been deviated from. It was there said:
“But in this country the public right cannot depend upon custom, or upon general use, and we accordingly find that in nearly all the States this rule has been extended so as to be adapted to the necessities of our trade and commerce, and to embrace all streams upon which in their natural state there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. A stream which can only be made floatable by artificial means can in no sense be deemed a public highway, nor, on the other hand, can the fact that a floatable stream has not been used by the public, or has only been used by persons following a particular occupation, deprive such stream of its public character.”
Measured by this standard, and it is the standard used by this court in numerous cases, I think that not only Winans lake, but its outlet, form part of the navigable waters of the State. Sterling v. Jackson, 69 Mich. 488 (37 N. W. 845, 13 Am. St. Rep. 405), and Hall v. Alford, 114 Mich. 165 (72 N. W. 137, 38 L. R. A. 205), are not in point. Both cases involve the right of fowling. Giddings v. Rogalewski, 192 Mich. 319 (158 N. W. 951), dealt with a small pond covering only 20 to 25 acres, with no inlet or outlet, entirely surrounded by lands of a single owner, and it was expressly stated:
“The right of the people to fish in navigable or meandered waters where fish are propagated, planted, or spread, and to which they have lawful access by land or water, even though such waters may superimpose the subaqueous lands of a private owner, is not decided nor involved here.”
It is provided by section 7694, 2 Comp. Laws 1915:
“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 the United States, the people *522shall 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.”
The testimony shows that Winans lake has been planted, with fish from the State fish hatchery at Northville. If this lake is navigable water, and I believe it is, and it has been planted with fish at public expense, as the proof shows it has, then I think the public has the right to go upon its surface and exercise the right of fishing, provided no fast land,under private ownership and control is crossed to exercise that right. It was said by this court in Lincoln v. Davis, 53 Mich. 375 (19 N. W. 103, 51 Am. Rep. 116) :
“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 ferse naturas, and in this region have always been regarded as open to capture by those who have a right to be where they are captured.”
The bill alleges and the map shows a public highway on the shores of this lake. One can step into a boat from this highway and touch no part of the fast land under the control of plaintiff. I do not understand that there has been any trespass upon or threatened trespass to the fast land under the control of plaintiff. I think the bill should be dismissed.
Kuhn, C. J., concurred with Fellows, J.