Lincoln v. Davis. The plaintiff claimed the right to fish through a royal grant from Charles II. in 1660, and another in 1661 of the right to fish in Lough Neagh. No evidence had been given of forfeiture, or escheat, or other source of title in the king. Lord CAIRNS said: "The crown has no de jure right to soil or fisheries of a lough like Lough Neagh." He then proceeds to describe Lough Neagh as "the longest inland lake in the United Kingdom, and one of the largest in Europe. It is from fourteen to sixteen miles long, and from six to eight miles broad. It contains nearly 100,000 acres; but though it is so large, I am not aware of any rule which would, prima facie, connect the soil or fishings with the crown, or disconnect them from the private ownership either of riparian proprietors or other persons." And Lord BLACKBURN said: "The property in the soil of the sea and of estuaries and of rivers in which the tide ebbs and flows is prima facie of common right vested in the crown. It is clearly and uniformly laid down in our books, that where the soil is covered by the water forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land; and there is no case or book of authority to show that the crown is of common right entitled to land covered by water, where the water is not running water forming a river, but still water forming a lake. * I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad filum aquæ should apply to a lake is a different question. It does not seem very convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors amongst themselves, for no title is made by either party through any one as riparian owner. It is however necessary to decide whether the crown has of common right a prima facie title to the soil of a lake; I think it has not." It is evident from the foregoing citations that the question in England, as to riparian proprietorship in the soil under lakes, had not been judicially settled as late as the year 1878. The holding that the crown does not of common right prima facie own the title to the soil under the waters of an inland lake, leads necessarily to Lincoln v. Davis. the other conclusion, that such soil belongs to the riparian proprietor. But the case can form no guide with reference to riparian ownership upon the great inland seas bordering this State. Lough Neagh, the largest in the United Kingdom, is too small to be the subject of any comparison with Lake Huron, with the object of ascertaining by any analogy whether the rules or principles of riparian ownership applied to one should govern the other. It was the theory of monarchical governments that the king was lord of the sea, and the owner of the soil while it was covered with water. 2 Bl. Com. 262. This is a reasonable doctrine, and founded in good sense. It would be absurd to suppose that any private person could appropriate to his own exclusive use either the waters of the sea or the soil beneath it. The public right of navigation and fishing in such waters should not be rendered subservient to private occupancy. Title by occupancy presumes a grant. There must be an owner capable of granting before a grant can be made. If there be no owner there can be no grant, and no title by prescription. And so the common law regarded the sovereign as owner, and as holding the title in trust for the public use of navigation and fishing, and such uses as should subserve the general welfare. The same reason which existed during the origin and growth of the common law to deny the right of riparian proprietorship in the bed of the sea forbid such private proprietorship in the owner of land bordering on the great lakes. "All titles in this State are sup posed to have been granted or originally recognized and confirmed by the United States or by this State." Gamble v. Horr, 40 Mich. 564. That is from the sovereign power. Before the admission of this State, the United States, as sovereign, had political jurisdiction of the whole area, including the navigable waters of the great lakes, and when the State was admitted into the Union this political jurisdiction devolved upon the State, and the title to the soil under the navigable waters of the great lakes became vested in the State as sovereign to the same extent and for the same reasons that the title of the bed of the sea was vested in the king. If the defendant has any title to the land under the waters of that portion of Lake Huron known as Thunder bay, he must have derived it either by a grant from the United States or from the State of Michigan. He claims it by grant from the United States, and in virtue of his riparian proprietorship in Sulphur island, and that as a concomitant of this interest in the soil he has the exclu Lincoln v. Davis. sive right of fishery in the waters of the bay in front of the island, at least so far as the driving of stakes in the soil and the use of trap-nets is concerned. What then are the boundaries of the grant made by the United States government of the land on Sulphur island? I have no hesitation in saying that they are limited by low-water mark. I think the true principle is laid down in the following cases: Canal Com'rs v. People, 5 Wend. 423; Champlain, etc., R. Co. v. Valentine, 19 Barb. 484; Fletcher v. Phelps, 25 Vt. 257; Jakeway v. Barrett, 38 Vt. 316; Austin v. Rutland R. Co., 45 Vt. 215; Seaman v. Smith, 24 Ill. 521. In State v. Gilmanton, 9 N. H. 461, Chief Justice PARKER said: "Where a grant is made extending to a river, and bounding upon it, the center of the stream is the line of the boundary, if there is no limitation in the terms of the grant itself. But in relation to grants bounding on ponds, lakes, or other large bodies of standing fresh water, that principle does not apply, but the grant extends only to the water's edge." See also 3 Kent Com. 429, and note b; Gould Waters, § 203 and cases cited in note 3; Angell Water-courses, $ 41, 42. Such also is the construction placed upon grants of the United States by the United States Supreme Court. Barney v. Keokuk, 94 U. S. 324; Railroad Co. v. Schurmeir, 7 Wall. 272. In England where the common law had its origin, there were no great inland seas, such as our great lakes, and consequently no precedent can be found in the jurisprudence of that country which determines the applicability of the common-law doctrine of riparian rights to the question under consideration. Lake Huron is estimated to contain twenty thousand square miles, while the Irish. sea is computed at less than fifteen thousand. Lake Michigan contains more than twice and Lake Superior about four times the number of square miles contained in the Irish sea. If we look for analogies, they will be found to consist in the resemblance of the great lakes to the seas which surrounded that country, and would seem to call for the application of the same principles as to boundaries which were applied to lands bordering on those seas, with this difference: as there is no periodical ebb and flow of tide in these waters the limit should be at low instead of at high-water mark. The paramount rights of the public to be preserved are those of navigation and fishing, and this is best accomplished by limiting the grants of lands bordering on the great lakes to low-water mark. It does not follow however that the VOL. LI 16 Lincoln v. Davis. owner of lands thus bounded has no rights to the use of the water or soil beneath it. It is well settled in this country that where the law is that the owner is limited by either high or low-water mark, he has the right to construct warehouses, wharves or piers in the water in front of his land, in aid of and not obstructing navigation. Railroad Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497; Providence Steam-engine Co. v. Providence, etc., Steamship Co., 12 R. I. 348; Coburn v. Ames, 52 Cal. 385; Mather v. Chapman, 40 Conn. 382; s. c., 16 Am. Rep. 46; Drury v. Midland R. Co., 127 Mass. 571; Boston v. Richardson, 105 Mass. 351; Lakeman v. Burnham, 7 Gray, 437; State v. Sargent, 45 Conn. 358; Moulton v. Libbey, 37 Me. 472; Clement v. Burns, 43 N. H. 609. In some States this right is said not to exist without legislative authority. Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Guritee v. Baltimore, 53 Md. 432; Alden v. Pinney, 12 Fla. 348; Norfok City ▼. Cooke, 27 Gratt. 430; Rice v. Ruddiman, 10 Mich. 125. The defendant claims that the decisions of this court have settled the question of riparian ownership to lands bordering upon the navigable waters of this State, and that by such decisions his rights as such owner cover the locus in quo in this case; and he cites us to the following cases: Rice v. Ruddiman, 10 Mich. 125; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 183; Pere Marquette Boom Co. v. Adams, 44 Mich. 404; Watson v. Peters, 26 Mich. 517; Lorman v. Benson, 8 Mich. 18. None of the foregoing cases involved the rights of riparian owners of land bounded by the waters of the great lakes. In the case of Rice v. Ruddiman, Lake Muskegon was treated by three of the judges as a widening of the Muskegon river, but the majority of the court based their decision upon the well-recognized principle that the owner of the shore had the right to make use of the shallow waters in front of his premises, by the construction of wharves, buildings and other improvements, so long as the public servitude was not thereby impaired, and it was immaterial whether the particular place in controversy was a part of Lake Michigan or not. The case of Pere Marquette Boom Co. v. Adams was clearly the case of a river, although called Pere Marquette lake. This lake is formed by a widening of the waters of the river before they reach Lake Michigan, and no reason is apparent why the principles applicable to rivers should not govern the rights of riparian proprietors upon this so-called lake. Lincoln v. Davis. The defendant calls attention to the case of Richardson v. Prentiss, 48 Mich. 88, as deciding the very point in issue, and claims that it was there held that the owner of lands upon the shore of Thunder bay does own the soil under the water in front of his upland, and has the exclusive enjoyment of the usual riparian right appurtenant thereto, and he insists that the only question to be considered is the extent of those rights, and that subject to the right of navigation, there is no limit of distance from the shore, save only the central thread of the stream or center line of the lake, and that there is no limit at all to the depth of water in which he may exercise his right. If the position is correct that the owner of land bounding on Thunder bay has the same riparian rights that the owner of land bounded by a river or other stream has, then there can be no question as to his exclusive right to fish in the waters where plaintiff had attempted to in this case, and that plaintiff was a trespasser, and defendant was justified in removing the stakes driven by plaintiff, for the law is well settled that riparian proprietors upon fresh-water streams have the exclusive right of fishing in the waters opposite their lands. Gould Waters, § 182, and cases cited in note 1; Angell Water-courses, § 61; Hart v. Hill, 1 Whart. 124; Beckman v. Kreamer, 43 Ill. 447. The case of Richardson v. Prentiss does not conflict with the views I have expressed. Although the case discusses the rights of riparian owners, and refers to them generally in the language of the authorities as extending ad medium filum aquæ, yet the case presented was whether a person after selling to complainant land bounded by the waters of the lake, could go in front of complainant and appropriate the land under the water. The grantor had no more right to exercise exclusive dominion over the soil under water in front of the lands of her grantee than an entire stranger; and it is clear upon all the authorities that complainant had certain riparian rights flowing from her, being the owner of the shore, which neither her grantor nor any other person could deprive her of without her consent. The question to be decided was whether the complainant's grantor after selling the shore to complainant, had riparian rights in front of the lands sold which she could appropriate to her own private and exclusive use, and it was held that she had not, and that the complainant had a right to be protected against the unauthorized appropriation of such land which would deprive her of her access to the water. |