(dissenting in part). In 1934 the board of supervisors of Mecosta county granted to the department of conservation permission to dam the west branch of the Chippewa river at Winchester. The department of conservation authorized the construction of the dam after it had obtained title to or flowage easements on all of the property affected by the impoundment of the waters by Winchester dam. The flowage easements allowed the impoundment of the water not to exceed a level of 995.5 feet above sea level at the dam site. Construction of the dam was finished in 1955.
The water level was maintained at an average of 993.8 feet above sea level at the dam after the impoundment became operative and until about June 1960.
During the early years of the impoundment, the waterfowl, hunting, and fishing programs were successful. By 1959, however, the number of waterfowl had declined because the food and cover areas had rapidly deteriorated. A management plan was adopted by the game division of the department of conservation to prevent the situation from becoming too severe. The plan called for lowering the level of the impoundment of water 18 inches during the summer months each year for the purpose of exposing part of the bottom lands, thereby obtaining a favorable growth of vegetation and aiding the deterioration of undesirable wood in the water. This lowering of the water level is objected to by the plaintiffs in each action.
Certain persons owning property bordering on the Martiny lakes project brought an action in chancery to enjoin the department of conservation from lowering the water level as proposed. A temporary injunction was issued against the department of conservation. The chancery action was then held in *203abeyance by agreement of tbe parties for the reason that a petition seeking the establishment of the level of the lake had been filed by the board of supervisors for Mecosta county, giving rise to the second case considered here, which case could determine the outcome of both cases.
The second case is an action at law based upon the inland lake level act of 1961.1 Upon petition of 40 landowners, the Mecosta county board of supervisors adopted a resolution on August 14, 1961, instructing the drain commissioner, among other things, to hire private counsel to carry out proceedings under the inland lake level act of 1961, so as to have established the level of the waters in the Mar-tiny lakes project. On August 18, 1961, the petition was filed and a hearing was set for December 11, 1961. The department of conservation made a motion to dismiss. Testimony was taken and exhibits were received at the hearing on the motion.
The circuit court rendered an opinion dated March 29, 1962, denying the motion to dismiss and holding the normal level of the water was 993.8 feet above sea level at the dam site. However, the court allowed the department of conservation to lower the water level from autumn through spring, but denied the department’s request to lower the level during the summer months. A judgment was entered in accordance with the opinion.
The chancery case was then dismissed, pursuant to the motion made by the department of conservation. Objections were filed by the department of conservation to the judgment in the law action, and appeal was taken therefrom. Plaintiffs appealed from the dismissal of the chancery case. The cases were consolidated on appeal.
*204In the Supreme Court, after oral argument, the law action was remanded to the Mecosta county circuit court for taking additional testimony and filing a supplemental opinion by that court, limited to the question of whether the west branch of the Chippewa river between Tubbs lake and Winchester dam was in its natural state a “navigable stream” within the exception made by section 13 of the inland lake level act of 1961. The chancery case was again held in abeyance.
After taking the testimony and considering the exhibits, the circuit court rendered its supplemental opinion and judgment, finding the west branch of the Chippewa river between Tubbs lake and the present site of the Winchester dam was not in its natural state a “navigable stream” within the exception made by the inland lake level act.
Pursuant to the original order of remand, the case was certified to this Court.
Section 132 of the inland lake level act of 1961 provides as follows:
“Nothing herein contained shall be construed to alter, limit, abridge or amend the provisions of law applicable to the location, construction and maintenance of dams in navigable streams or provide for the determination, establishment or maintenance of the level of waters impounded by such dams.” (Emphasis added.)
The only question in the law case is whether section 13 quoted above makes inapplicable the inland lake level act of 1961 to the Martiny lakes project in Mecosta county.
The determination of the ultimate question turns on: first, a question of law — what is a “navigable stream”?; and second, a question of fact — does the *205portion of the Chippewa river herein concerned come within the scope of that definition?
In the case of Moore v. Samborne (1853), 2 Mich 519 (59 Am Dee 209), the test of navigability is found at pp 525, 526:
“The servitude of the public interest depends rather upon the purpose for which the public re-q%mes the use of its streams, than upon any particular mode of use — and hence, in a region where the principal business is lumbering, or the pursuit of any particular branch of manufacturing or trade, the public claim to a right of passage along its streams must depend upon their capacity for the use to ivhich they can be made subservient. * * *
“But it is urged that conceding such to be the rule, if a stream be not capable of being used to float mill logs, in an ordinary stage of water, it is not subject to the servitude of the public interests. * * * It is a valuable, rather than a continual use, which determines the public right. * * # ‘The law nowhere defines the character of a stream by admeasurement of its volume.’ ” (Emphasis added.)
The rule in Sanborne is that waters take on a public character when they are capable of being used for a “public purpose,” and further that the public use need not be continual but must be valuable. The Court, looking at the logging industry, saw a great public use at that time. It then determined which streams could be used for that particular public purpose.
The definition of navigable waters was not limited in that or any other case to tests for floating logs or any other commercial use. Other public uses have always been and still are recognized.
In the case of City of Grand Rapids v. Powers (1891), 89 Mich 94 (28 Am St Rep 276), the Court was speaking of the Grand river in the city of Grand Rapids and stated (p 97):
*206“Small steam-boats have run between tbe mouth and the city of Grand Rapids, and, with the aid of government appropriations, the river below the rapids at that city may be a water-way of great commercial utility; but above the rapids it has nearly served its usefulness as a navigable stream, except for small pleasure boats. The running of logs, lumber, and timber upon it is no longer of consequence, on account of the exhaustion of the forest supply of easy access to it and its tributaries. But it will ever be an important public stream, and its navigability for pleasure is as sacred in the eye of the law as its navigability for any other purpose.” (Emphasis added.)
With changes in economic and social conditions, our rule of navigability has been rephrased but remains the same for all intents and purposes. Exemplary of the foregoing statement is the landmark case of Collins v. Gerhardt (1926), 237 Mich 38. The Court there stated (p 42):
“In view of modern social and economic conditions, and the flexibility of the common law in adapting itself to the changing needs of the people, we shall not consider the term navigability in a too technical commercial sense, or seek out some ancient test in determining if Pine river belongs in the class legally regarded as public waters. It has been said that :
“ ‘The right of the public use in American rivers and streams depends, not upon their navigability, in the technical sense of the term, as defined by the common law.’ Carter v. Thurston, 58 NH 104, 106 (42 Am Rep 584).
“ ‘And:
“ ‘If under present conditions of society, bodies of ivater are used for public uses other than mere commercial navigation, in its ordinary sense, ive fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomen*207claiure is preferred! Lamprey v. State, 52 Minn 181, 199 (53 NW 1139, 18 LEA 670, 38 Am St Rep 541).” (Emphasis added.)
The Court further stated (p 43):
“Here, every stream that is navigable in fact is navigable in law.” (Emphasis added.)
A further study of the cases cited in Collins, supra, reveals the following language in Lamprey v. State of Minnesota, supra (pp 198-200):
“It is proper to consider what is the definition or test of ‘navigability,’ as applied to our inland lakes. The division of waters into navigable and nonnavigable is but a way of dividing them into public and private waters, — a classification which, in some form, every civilized nation has recognized; the line of division being largely determined by its conditions and habits.
“In early times, about the only use — except, perhaps, fishing — to which the people of England had occasion to put public waters, and about the only use to which such waters were adapted, was navigation, and the only waters suited to that purpose were those in which the tide ebbed and flowed. Hence, the common law very naturally divided waters into navigable and nonnavigable, and made the ebb and flow of the tide the test of navigability. In this country, while still retaining the common-law classification of navigable and nonnavigable, we have, in view of our changed conditions, rejected its test of navigability, and adopted in its place that of navigability in fact; and, while still adhering to navigability as the criterion whether waters are public or private, yet we have extended the meaning of that term so as to declare all waters public highways which afford a channel for any useful commerce, including small streams, merely floatable for logs at certain seasons of the year. Most of the definitions of ‘navigability’ in the decided cases, *208while perhaps conceding that the size of the boats or vessels is not important, and, indeed, that it is not necessary that navigation should be by boats at all, yet seem to convey the idea that the water must be capable of some commerce of pecuniary value, as distinguished from boating for mere pleasure. But if, under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred. Certainly, we do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecuniary profit.
“Many, if not the most, of the meandered lakes of this State, are not adapted to, and probably will never be used to any great extent for, commercial navigation; but they are used — and as population increases, and towns and cities are built up in their vicinity, will be still more used — by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated.” (Emphasis added.)
The Collins Case was reaffirmed by this Court in the case of Kerley v. Wolfe (1957), 349 Mich 350. Justice Black, writing the unanimous opinion of the Court, stated (p 355):
“It is quite consistent with testimony and finding that the waters extending from plaintiffs’ premises to the deeper part of the lake were and are navigable in fact by small boats and canoes. (Emphasis added.)
*209Of this fact he held (p 356):
“Such part of the lake being navigable in fact is navigable in law (Collins v. Gerhardt, 237 Mich 38, 43).” (Emphasis added.)
He further stated (p 357):
“It is the doctrine of riparian rights, the essence of which is that no upper or lower proprietor may dispute passage by water of his riparial neighbor when the stream or lake commonly enjoyed by all has been made navigable in fact by nature.” (Emphasis added.)
We have a definition of navigability which is sufficiently flexible to apply to the revolutionary changes of life in Michigan — past, present, and future. The broadness of the rule is shown in Attorney General, ex rel. Director of Conservation, v. Taggart (1943), 306 Mich 432. It states (pp 441, 442) :
“Many decisions following the Sanborne Case clearly distinguished between streams navigable for boats and those floatable for logs and, with respect to the latter, gave the public an easement of passage for the purpose of floatage and only such other rights as are incidental thereto. (Citing cases.) While the Sanborne Case only disposed of the right of floatage and did not decide that a floatable stream has the status of waters navigable for all purposes, the public character of water was held to be determined by reference to the public necessity for its use. It is this broad underlying principle rather than the narrow rule of the Sanborne Case which was in effect adopted by the court in Collins v. Gerhardt, supra, when it held that floatability determined the public character of a stream and affixed therein the public right of fishing. Whatever criticism may be made of the Collins Case because of its lack of authority, ioe believe it states sound law and *210a public policy appropriate to tbe character of this State.” (Emphasis added.)
The plaintiffs here contend the rule to be followed in determining navigability is that in Shepard v. Gates (1883), 50 Mich 495. In Shepard an objection was made that no permission had been given by the board of supervisors for building a bridge. The Court held permission from the supervisors was not required because it didn’t appear that the branch of the river in question was used for any valuable boat or vessel navigation. It held further that the constitutional provision,3 that no navigable stream should be bridged or dammed without authority from the board of supervisors, was adopted pursuant to the Ordinance of 1787, which stipulated 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.” Of the Ordinance of 1787, the Court said (p 497) :
“That has been considered as referring to navigation in its proper sense by some sort of boats used as means of carriage. At the date of the Ordinance the largest portion of the carrying trade in the Northwest was conducted in moderate sized boats, and the cargoes, and sometimes the boats themselves, were taken across the portages or carrying places dividing one stream or stretch of navigable waters from another. The legislature of 1851 so construed the Constitution, by confining the necessity of special leave from the supervisors for constructing bridges to streams navigable by boats or vessels of 15 tons burden or more, while the supervisors were authorised to make general regulations in regard to shallower streams. Act 156 of 1851, §§ 23, 24.”4 (Emphasis supplied.)
*211Section 13 of the inland lake level act of 1961 speaks of streams only in terms of “navigable”. It does not state any intention to limit itself to streams navigable for any particular purpose. If the legislature meant something different than the broad flexible definition of “navigability” used in Sanborne, supra, and adopted in Collins, supra, Taggart, supra, and Kerley, supra, it would have so stated, as it did in the statute considered in Shepard, su/pra. There one section of the statute dealt with the procedures to be followed whenever any one wished “to construct any bridge across any stream at a point where the same is navigable for boats or vessels of 15 tons burden or more”, and another section of the statute gave boards of supervisors power to make general rules and regulations concerning bridges when the stream is not navigable for boats or vessels of 15 tons burden or more.
The test for navigability to be applied is the enlarged test set out in Sanborne, supra, adopted in Collins, supra, and Taggart, supra, and reaffirmed by Justice Black’s opinion in Kerley, supra. That test involves a determination of what the public purpose is and whether the stream is capable of use for that purpose. If the stream is, in fact, capable of use for the public purpose, it is viewed as public or navigable if the old nomenclature is preferred. If navigable in fact, it is navigable in law.
Applying the aforementioned test, we must ascertain whether the past, present, and possible future uses of this stream measure up to the test of “public purposes” and whether the trial court properly applied this test to the facts.
In the instant case, the trial judge upon remand took voluminous testimony. His opinion, however, reached an erroneous ultimate conclusion as to navi*212gability in fact because lie erroneously adopted a constrictive “floatability of logs” test.
The basic public purpose for which our lakes and streams are used in this day and age clearly are not commercial in the sense that commerce is strictly defined. Commercial travel by boats and canoes is obsolete and other modes of transportation are now in vogue for economic reasons of cost, time, and facility of travel. Wholesale movement of logs via floating on lakes and streams is also obsolete and has been for so long that it is difficult to locate persons who have first-hand knowledge of whether logs were ever floated down a particular stream to the great lumber mills of the late 1800’s.
We must at this point examine the ultimate fact of navigability under the “public purposes” test. That we may do so should be unquestioned. See Callihan v. Talkowski (1963), 372 Mich 1, 6, citing Schneider v. Pomerville (1957), 348 Mich 49. The United States Supreme Court considering an identical situation stated in United States v. Appalachian Electric Power Company (1940), 311 US 377, 403, 404 (61 S Ct 291, 85 L Ed 243):
“In cases involving the navigability of water courses, this Court, without expressly passing on the finality of the findings, on some occasions has entered into consideration of the facts found by two courts to determine for itself whether the courts have correctly applied to the facts found the proper legal tests. * * * Both the standards and the ultimate conclusion involve questions of law inseparable from the particular facts to which they are applied.” (Emphasis added.)
Turning to the transcript of the proceedings upon remand, the weight and sufficiency of the evidence overwhelmingly preponderate in favor of the fact of navigability as above defined. George Moorman, *213■a witness for appellee, stated upon cross-examination that he waded and fished this stream:
“Q. Did you ever wade the stream?
“A. Yes, sir, I have waded it.
“Q. Did you fish it? * * *
“A. To spear with a gas lantern, yes, same way. * * *
“Q. Well, I suppose, then, you could wade it all the way along, could you?
“A. No, there is places you couldn’t wade it, of course. By the beaver dam you couldn’t wade. It’s four feet of water. I’m sure my legs aren’t that long to wade it with what mud is in the bottom.”
This testimony of spearfishing and wading is fully corroborated by witnesses for both sides.5 In fact the department of conservation indicated on a separate record that it had planted and spawned fish in this stream at least as early as 1933.
Further, many witnesses testified as to the navigability by boat. Cash Wosner testified in respect to a boat trip taken in April 1954:
“Well, the only thing is that the ease with which that boat and motor made the run from Tubbs lake to the vicinity of the dam and back and the speed which it was run and the caution that Miller, an old commercial fisherman from Saginaw boats, managed in the water constantly checking the depth of the water with a pole to make sure he didn’t run aground with the motor. My — It’s a guess that we had at least three feet of water most all the way down there. We turned around and came back with the motor running at least two-thirds or three-quarter speed.”
This testimony is also amply corroborated as every ivitness for both parties stated that they had *214personally used, or had seen the nse of, wood and aluminum boats on this stretch of the stream.
Although not necessary to a decision in this case, even if we consider the “floatability” test erroneously followed by the trial judge, there is evidence that logs three feet in diameter could float down this stream. In fact one witness, Warren Loomis, helped extract a “deadhead” log:
“Q. Now, did you see any deadhead logs in the stretch of the river 1
“A. Oh, yeah. Yeah, we got on one sandbar and • the fellow that [had] taken one out, and we stopped and helped him, and he pulled the log out and we went on up almost to the lake, and we come back.”
This, again, is amply corroborated by witnesses for both parties.6
Added to all of this testimony are the scientific measurements and data compiled by the United States Department of the Interior Geological Survey covering a period from June 1950 to July 1955 and indicating the maximum and minimum depths, velocity, and water levels.7 Also the transcript testimony discloses personal observations and activities of witness Louis Robinson concerning the 7-foot level of high water, of witness Irwin Austin in trapping beaver, muskrats, and mink and fishing, and of witness Warren Loomis as to duck hunting.
While not conclusive as a matter of law, this testimony, selected from an abundant source of corroborating testimony, conclusively shows the nature and extent of the presently existing “public purposes” on the west branch of the Chippewa river.
On the other hand, the only testimony offered against the fact of navigability related primarily to *215the existence of sandbars and other natural obstructions and to the shallow waters during the summer months.8 But we must point out, as did the United States Supreme Court in Economy Light & Power Company v. United States (1921), 256 US 113, 122 (41 S Ct 409, 65 L Ed 847), that:
“Navigability, in the sense of the law, is not destroyed because the watercourse is interrupted by occasional natural obstructions or portages; nor need the navigation be open at all seasons of the year, or at all stages of the water.”
See, also, The Montello (1874), 87 US (20 Wall) 430 (22 L Ed 391), citing Moore v. Sanborne (1853), 2 Mich 519.
We conclude, as we did in Callihan v. Talhowshi, supra, at page 6, that the trial court did not test the factual situation in the light of the proper rulé of law.
The west branch of the Chippewa river within the area in question is capable of being used for these public purposes. Pishing was h common pastime in the area before the construction of Winchester dam. The facts show this stream is capable of being waded, fished, and boated, and there is sufficient water in which to frolic around.
Prom the record as a whole, we can reach only one conclusion of ultimate fact — that this stream is navigable in fact. If navigable in fact, it is navigable in law.
As this water course is navigable, the inland lake level act of 1961 does not apply.
The plaintiffs in the chancery case executed easements of flowage to the department of conservation, which in pertinent part read:
*216“Convey nnto the State of Michigan * * * the full and free right and authority forever to flow, flood, and impound water to a height not to exceed 995 feet 6 inches above sea level at the dam over and upon the following described land.”
The plaintiffs now object to the lowering of the water to a level below that authorized by the flowage easements, not to raising the water level above 995.5 feet. The case is controlled by Drainage Board v. Village of Homer (1957), 351 Mich 73. It is fatal to the plaintiffs’ case as, by execution of the flowage easements mentioned above, they sold their rights to object to the raising or lowering of the water level within the limits described in the instruments.
The judgment of the circuit court in the law action should be reversed and its decree in the chancery case is affirmed.
A public question being involved, no costs are allowed.
Adams, J., did not sit.PA 3 961, No 146 (CLS 1961, §281.61 et seq. [Stat Ann 1961 Cum Supp § 11.300(1) et seg.]).
CLS 1961, § 281.73 (Stat Ann 1968 Cum Supp § 11.300[13]).
Const 1850, art 18, §4.
CL 1948, §§ 46.23, 46.24 (Stat Ann 1961 Rev §§ 5.346, 5.347).
See transeript testimony of witnesses Louis Bobinson, Boland Green, Warren Loomis, and George Belden.
See transcript testimony of witnesses Gallenger, Louis Robinson, Charles Robinson, Green, Loomis, London, Austin, and Jansma.
See exhibits 20A-B-C and transcript testimony of Kenneth Jansma, a civil engineer for the department of conservation.
See the testimony of witnesses Moorman, Riley, Ball, and Gallenger.