Sterling v. Jackson

Ohahplin, J.

This is an action for trespass upon land ■covered with water, situated on fractional section 11 north of private claim, township 7 south, range 9 east.

The declaration alleges that defendant broke and entered plaintiff’s close, 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, etc.

The defendant pleaded the general issue, and gave notice that he would show that the premises upon which the *490 injuries were supposed to have been committed were a common highway, and free to defendant, and by virtue thereof, and in use thereof, he did all and singular the acts complained of, as he lawfully might.

Upon the trial of the cause in the circuit court a patent was offered in evidence from the United States to the State of Michigan covering the land in question, purporting to be executed in conformity to the act of Congress of the United States of date September 28, 1850, granting land to the state of Arkansas and other states to reclaim the swamp lands-within their limits, to the introduction of which in evidence objection was made, for the reason that the patent, which bore date the sixteenth day of August, 1882, was issued without legal authority. The objection was overruled, and the patent admitted. It recited that the lands thereby conveyed had been selected pursuant to the provisions of said act. The ruling of the court is assigned as error.

It is claimed by counsel that the want of legal authority to issue the patent consists in the fact that, prior to its issue, the land in question was reserved for light-house purposes. But no such fact appeared at the time the patent was offered in evidence, and the reason of its invalidity was not then stated.

There are two sufficient answers to the objection: First, there is no competent evidence in the case that the land was ever reserved for light-house purposes. A map was introduced of a survey made by William Ives, deputy surveyor of the United States, upon which certain lands lying along the shore of Lake Brie were shaded green, and such shading covered the locus in quo the shooting was claimed to have-been done, and upon the margin of this map there appears the following memorandum:

“ The tracts embraced in the green shade are reserved for light-house purposes. See commissioner’s letter, June 14-1852.”

*491 Another map was introduced from the office of the register of deeds of the county of Monroe of the same survey, but upon a reduced scale, concerning which counsel for defendant asked the witness S. M. Bartlett, a surveyor: “What does this green shade indicate? What lands?” To which he replied: “Lands resurveyed for light-house purposes.” This was all the evidence upon that point. -It is needless to-say that it fell far short of proving it.

Had it been proved that these green-shaded lands had been reserved in 1852 for light-house purposes, it would not have affected the validity of the patent. These lands were granted by the act of September 28, 1850, by the general government to the State of Michigan, and the title vested in the State at that date, and the reservation, if any was made in 1852, was-of no legal validity. The patent issued in 1882 was simply evidence of the previous grant, which took effect when the. act of Congress became a law.

Plaintiff introduced in evidence a patent from the State of Michigan to William C. Sterling, and claims title through this patent.

Considerable evidence was introduced showing the present, character of the land in dispute, from which it pretty conclusively appears that it bears the description of lands granted by act of Congress as “ marsh and overflowed lands.”

Plaintiff’s testimony tended to show that, at the time of the survey in 1850, there was a shore of Lake Erie running along continuously eastwardly of the place where defendant was when he did the shooting, a distance of more than 200' feet, consisting of a sand bank, upon which grew a few trees and bushes. East of this bank was Lake Erie, and west of it there was an extensive marsh, grown up with weeds, wild rice, and rushes, and mostly covered with shallow water. Through this marsh ran what was known as “ Sandy Creek,”' and about 11 chains to the southwardly from where the trespass is alleged to have been committed there was a portage. *492 over this bank to Sandy creek. The existence of this portage was proved, and seems not to have been disputed. The fact that there was such portage is pretty conclusive proof that in 1850 this bank spoken of formed a continuous shore where now appears open water. At some time since 1850, but at what particular period the testimony does not establish, the waters of Lake Brie have penetrated through this bank, and made a passage, at first narrow, but increasing in width year by year by the action of the water, so that the shore line, consisting of a sand bank, has been thrown backward and inward, and has formed a well-defined bay, with a distance of over 1,500 feet from headland to headland. The shore or boundary between the lake and marsh does not form a continuous line, but leaves an opening at the western extremity of the bay, through which the waters of the lake unite with those of Sandy creek. This opening is about 759 feet wide, and is known as “ The Cut.”

There was a large amount of testimony introduced to show that this bay, as well as Sandy creek, was navigable water, and in the disposition made of the case in the court below the fact was conceded that it was navigable, and used as such, and I shall consider that fact as established.

It is also a conceded fact that defendant was in a boat in the navigable waters of the bay, and by the aid of some rushes that grew up through the water, and a structure called “a hide,” and several artificial ducks as decoys, was engaged in shooting wild ducks upon the premises covered by plaintiff’s patent; that he was requested to desist, and leave the premises, by plaintiff, through his agent, but refused so to do, claiming the right to be where he was, and to shoot ducks and game, because he was in the navigable waters of Lake Brie.

A point is made by counsel for defendant that, at the time the State issued its patent for this land in 1883, the shore had washed away, and the bay existed as a part of the waters *493 of Lake Erie, and the mere grant of the land conld convey no greater rights, as to fishing and shooting, to the grantee than the grantor had.

It seems to me that plaintiff is unaffected by the changed condition of the shore. In my opinion, the grant was effective to pass the title to the submerged land. The patent from the State passed such title as it had; and if, prior to its date, a portion of the land had become submerged by the slow and imperceptible encroachments of the waters of the lake, the State, unlike a private person, still would be the owner, and could grant the bed of the lake to whom it chose, so long as such grant did not interfere with private vested rights. Smith v. Levinus, 8 N. Y. 472. Under other circumstances it might require some legislation to authorize the Governor to convey; but with regard to swamp lands the Legislature had already provided ior their disposition. Laws of 1851, p. 322;. Laws of 1858, p. 169; Laws of 1869, p. 164. Especially could the State pass the title when the land was received by it as swamp and overflowed lands; for, as remarked by Mr. Justice Field, in Savings Union v. Irwin, 28 Fed. Rep. 708, 712:

“The act of 1850 grants swamp and overflowed lands. Swamp lands, as distinguished from overflowed lands, may be considered such as require drainage to fit them for cultivation. Overflowed lands are those which are subject to such periodical or frequent overflows as to require levees or embankments to keep out the water, and render them suitable for cultivation. It does not make any difference whether the overflow be by fresh water, as by the rising of rivers or lakes, or by the flow of the tides. When drainage, reclamation, or leveeing is necessary to enable the farmer to use them for some of the ordinary purposes of husbandry, the lands are within the terms of the act of Congress, and the title passed by it to the state.”

And, again, in Wright v. Roseberry, 121 U. S. 496 (7 Sup. Ct. Rep. 987), he said;

“The object of the grant, as stated in the act, was to enable the several states to which it was made to construct *494 the necessary levees and drains to reclaim the lands. * * * The early reclamation of the lands was of great importance to the states, not only on account of their extraordinary fertility when once reclaimed, but for the reason that until then they were the causes of malarial fevers and diseases in the neighborhood.”

Can it be doubted that plaintiff has the right to construct a levee or embankment along the original shore line, and thus exclude the water and the public from his premises? The very purpose Congress had in view when it granted the lands was that the swamps should be drained, and the overflowed lands reclaimed; and the act contains a proviso—

“ That the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of levees and drains aforesaid.”

The State received these lands clothed with this trust declared in the body of the act. Hów far it has discharged such trust is a question I shall not enter upon.

It may be remarked, however, that Congress had not the remotest intention of granting these lands for game preserves, to be bought up and controlled by individuals or clubs. While I have no doubt that plaintiff may, for the purpose of reclaiming this land, construct levees or embankment, and thus shut out the waters of Lake Brie, and the public as well, yet, while he permits it to remain as a part of the navigable water of Lake Brie, there is an implied license to the public, under which the public have the right to navigate the same, and to exercise all such rights as are incident to navigation, and it is also subject to such rights as the public have in the navigable waters of the State.

The plaintiff claims the exclusive right of hunting within, the territory covered by his patent from the State. He' founds this right upon his proprietary interests in the soil under the water. He does not deny, so long as the premises remain in their present condition, that the public have a. *495 ¡right of navigation over his land, but he claims such right is a mere easement, and extends simply to a right of passage ■over his lands in such vessels as are capable of navigating the water over the same. He insists upon the exclusive right to hunt and to capture-all wild game while on his own premises, and that this right of capture is as much a right of property as the right to make any other use of his own premises. He cites, in support of these propositions, the following authorities: Moore v. Sanborne, 2 Mich. 519: Booming Co. v. Speechly, 31 Id. 336, 342; Lorman v. Benson, 8 Id. 18; Rice v. Ruddiman, 10 Id. 125; Booming Co. v. Jarvis, 30 Id. 319; Attorney General v. Booming Co., 34 Id. 474; Ewing v. Colquhoun, 2 App. Cas. 839; Walker v. Board, etc., 16 Ohio, 544; Braxon v. Bressler, 64 Ill. 488; June v. Purcell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Berry v. Snyder, 3 Bush, 266, 285; Overman v. May, 35 Iowa, 89; Ice Co. v. Shortall, 101 Ill. 46; McFarlin v. Essex Co., 10 Cush. 309; Adams v. Pease, 2 Conn. 484; Cooley, Torts, 329; Waters v. Lilley, 4 Pick. 145; Goff v. Kilts, 15 Wend. 550; Blades v. Higgs, 12 C. B. (N. S.) 501, 13 Id. 866; Ferguson v. Miller, 1 Cow. 243; Gillet v. Mason, 7 Johns. 16; Gould, Waters, §§ 93a, 158, 159.

The defendant’s counsel contend that, the bay being navigable, and free to the public for passage, the defendant, as one of the public, had a right to go upon the waters, and shoot as he did; that the entry upon the bay in his boat was, no trespass; that having the right, as one of the public, to pass over these waters, and to be where he was, he had the right to fish in them, to shoot from his boat wild ducks flying over them from the open lake, and to anchor his decoys to attract such ducks; that the ownership of the soil is a ■qualified ownership, subject to the public and common right of passage, fishing, and shooting wild birds. In support of this, he cites the following authorities: Pearce v. Scotcher, 9 Q. B. Div. 162; Weston v. Sampson, 8 Cush. 347; Martin *496 v. Waddell, 16 Pet. 367; Smith v. State, 18 How. 74; Collins v. Benbury, 3 Ired. 277; Browne v. Kennedy, 5 Har. & J. 195; State v. Falls Co., 49 N. H. 240; Carson v. Blazer, 2 Bin. 475; Sloan v. Biemiller, 34 Ohio St. 492.

We have not been cited to any adjudicated case where this' question has arisen. Both parties have presented it on the analogies of the right to ñsh in public navigable waters; and counsel for both parties insist that, if the case is to be governed by the right of fishing, it should be decided for their clients. Both appeal to the doctrine, of the common law, and find their vindication in its precepts. One asks for the-application of the doctrine of the right of fishing in navigable waters where the tide ebbs and flows; and the other is best suited with the common law as applied to non-tidal or fresh-water streams.

While the questions of fishing and hunting are in principle-somewhat analogous, yet they have always in England been treated as separate subjects of legislation and regulation. The forest and game laws of England have always been treated under a separate code, distinguished for its tyrannical inhibition of the common rights of the subject, and detestable for the eruel punishments inflicted for trivial offenses. 2 Bl. Comm. 411, et seq.; Com. Dig. tit. “Justices-of the Peace,” B 43, 45-49. The common law, which recognized the right of hunting and of property in wild animals to be a royal prerogative, and to vest in the king, has no existence in this country, where no king and no royal prerogative exist. Here the sovereign power is in the people, and the principle, founded upon reason and justice, obtains, that-by the law of nature every man, of whatever rank or station, has an equal right of taking, for his own use, all creatures' fit for food that are wild by nature, so long as he does no-injury to another’s rights. Laws have been passed to protect game during certain seasons, with a view to their preservation, but none denying the right of any person to *497 capture or kill game in the allotted season. This right is restricted only as to place.

Since every person has the right of exclusive dominion as to the lawful use of the soil owned by him, no man can hunt or sport upon another’s land but by consent of the owner. It will be conceded that the owner of lands in this State has . the exclusive right of hunting and sporting upon his own soil. Whatever may be the view entertained when the land belongs to the United States or to the State, there can be no-question when the land passes to the hands of private owners.

The defendant .claims that he had the right to shoot the wild fowl from his boat, because, as the waters were navigable where he was, he had the right to be there; that there being no property in wild fowl until captured, if he committed no trespass in being where he was, no action will lie against him for being there and shooting the wild duck. There is a plausibility in the position, which, considered in the abstract, is quite forcible, and, if applied to waters where there is no private ownership of the soil thereunder, would be unanswerable. But, so far as the plaintiff is concerned, defendant had 1 no right to be where he was, except for the purpose of pursu- • ing the implied license held out to the public of navigating ! the waters over his land. So long as that license continued, he could navigate the water with his vessel, and do' all things incident to such navigation. He could seek the shelter of the bay in a storm, and cast his anchor therein; but he had no right to construct a “ hide,” nor to anchor his decoys for the purpose of attracting ducks within reach of his shotgun. Such acts are not incident to navigation, and in doing them defendant was not exercising the implied license to navigate the waters of the bay, but they were an abuse of such license.

The same claim, that the defendant was where he had a right to be when he did the shooting, was made in the case of' Carrington v. Taylor, 11 East, 571. That was an action on the case. The plaintiff was possessed of a certain placo *498 prepared with suitable and proper conveniences for decoying and catching wild fowl, commonly called a “ decoy,!’ and had been accustomed to catch wild ducks, etc., in his decoy, which was situated on one of the salt creeks, called the <cBlackwater Biyer,” where the tide ebbed and flowed. The defendant sought his livelihood, in part, by shooting wild fowl from his boat on the water, for which boat, with small •arms, he had a license. The only proof of the disturbance by the defendant was that, he being out in his boat shooting wild fowl in a part of the open creek, first fired his fowling-piece within about a quarter of a mile of the plaintiff’s decoy, when two or three hundred wild fowl came out; and after-wards approached nearer, and fired again at a wild fowl upon the wing, at the distance of about 200 yards and upwards from the decoy pond, when he killed several widgeons, and immediately upon the noise of the gun four or five hundred wild fowl took flight from the pond, but it did not appear that he fired into the decoy. The learned judge left this as evidence to the jury of a willful disturbance of the plaintiff’s decoy by the defendant, for which this action would lie. The jury found a verdict for plaintiff. On a motion to set this verdict aside as being against law and evidence, counsel for defendant claimed that, the defendant having a right to shoot at the wild fowl in the place where he was, which was an open creek or arm of the sea, where the tide flowed and re-fiowed, and not having gone upon the plaintiff’s land, nor fired into his decoy at the birds there, the verdict should be set aside. The court, however, said that they saw no ground for disturbing the verdict in point of law, and that the evidence was proper to be left to the jury.

Another case is that of Keeble v. Hickeringill, 11 Mod. 73, 130, 3 Salk. 9, and Holt, 73, 130. It is also reported, from Lord Holt’s MS., in 11 East, 574. The action was trespass on the case for disturbing plaintiff’s decoy. The defendant was lord of a manor, and had a decoy; and the plaintiff had *499 also made a decoy upon his own ground, which was next adjoining to defendant’s ground, and pretty near also to defendant’s decoy, and therein the plaintiff had decoy and other ducks, whereof he made considerable profit. It appears from the report of the case in Holt, 73, that the defendant was upon his own land when he shot off his gun. The declaration alleged that defendant resorted to the head of plaintiff’s pond, and there discharged six guns laden with gunpowder, and with the noise and stench drove away the wild fowl then being in plaintiff’s pond, with design to damnify the plaintiff, and to frighten away his wild fowl from his decoy. It was held the action would lie.

The same principle is maintained by the supreme court of Ohio in State v. Shannon, 36 Ohio St. 423, The court declared the right of private ownership in the bed of the Sandusky river to be in the riparian proprietor. In this case Shannon was arrested for violation of a statute which made it penal for any person who, having received written or verbal notice from any owner of inclosed and improved lands, or any lands the boundaries of which are defined by stakes, posts, water-courses, or marked trees, not to hunt thereon, should shoot at, kill, or pursue, with such intent, on such lands, any of the birds or game mentioned in the act •concerning game, or upon any land upon which a notice is posted in a conspicuous place that “no shooting or hunting allowed on these premises.” The complaint charged Shannon with shooting and killing wild ducks on the land of Tindall, situate in said county, etc.

Tindall was the owner of land bounded on one side by the Sandusky river, a navigable-stream; and Shannon, on the twenty-ninth of October, 1877, when the killing of wild duck was not prohibited by statute, was in a skiff on Sandusky river, between the middle thereof and the shore owned by Tindall, from which position he shot and killed wild ducks swimming in and flying over the water between said shore *500 and the middle of the river. Boards inscribed in legible English characters, “No shooting or hunting allowed on these premises,” were set up in conspicuous places on the shore, and Shannon had been notified by Tindall not to shoot or hunt on his lands. The position occupied by Shannon on the river was within the limits of navigation as used by boats and other water-craft engaged in commerce, and the public generally had been accustomed to fish and kill wild ducks in the same location upon the river. Mcllvaine, C. J., in delivering the opinion, said:

“It is claimed, however, that this statute was not intended to protect lands covered by the waters of a navigable river. A majority of the court can see no grounds upon which lands covered by navigable streams should be excluded. They are as much the subject of private ownership as unnavigable streams. There is no distinction between them made by the terms of the statute. True, navigable streams, in this state, are declared to be public highways; but the right to' use a public highway is not abridged by protecting the owner of the fee in the exclusive right of killing game therein. Travel and commerce are not thereby hindered. And as the power of the legislature to protect game, or the exclusive right of the owner of land to kill the same on his- ■ own premises, is as ample over land covered by water, whether navigable or innavigable, as it is over dry land, and as there is no attempt to distinguish between them in this statute, we must hold that all alike are within the protection of this statute.”

In each of these cases the defendant “ was where he had a right to be ” at the time he committed the grievance complained of; nevertheless this fact did not justify him in doing an act, the direct consequence of which was to injure the owner of the land for his own benefit. It does not follow that, because a person is where he has a right to be, he cannot be held liable in trespass. A person has the right to drive his cattle along the public highway, but he has no right to depasture the grass with his cattle in the highway adjoining the land of another person. Also a person has the *501 right to travel along a public highway, but this gives him no right to dig a pit, or remove the soil, or incumber it in front of lands belonging to others.

In the case under consideration, the defendant had the right of using the waters of the bay for the purpose of a public highway in the navigation of his boat over it: but he had no right to interfere with the plaintiff’s use thereof for hunting, which belonged to him as the owner of the soil. The public had a right to use it as a public highway, but every other beneficial use and enjoyment belonged to the owner of the soil.

Had this action been in case, with proper averments setting forth plaintiff’s ownership and use for sporting, and defendant’s interference and disturbance of plaintiff’s enjoyment, the authorities last above cited would have supported the action. I am not prepared to say, after verdict, that trespass will not lie under the circumstances of this case; more especially as no question is raised by defendant’s counsel that it is not the proper form of action, and as it appears to have been planted to test the plaintiff’s right to the private and exclusive use of the land covered by his patent for sporting purposes. As owner of the fee of the soil under the water, I think he is entitled to such exclusive right, and that the judgment should be affirmed.

I may add, in conclusion, that, aside from the ownership of the plaintiff of the locus in quo, the only important question in this case is whether a man has the exclusive right of fowling upon his own land. If he has, it can make no difference with that right whether it be upland or covered with water. As the question of the right to fish in the navigable waters of the Great Lakes at places not affected by private ownership does not arise in this case, I forbear to discuss it. My views upon that subject were expressed in Lincoln v. Davis, 53 Mich. 375 (19 N. W. Rep. 103).

*502 Sherwood, C. J., and Long, J., concurred with OhampLIN, J.