Nedtweg v. Wallace , 237 Mich. 14 ( 1925 )

Reliction has rendered several thousand acres of the bed of Lake St. Clair suitable for cottages and summer homes. The State caused a survey to be made, set aside a part of such former lake bed for a park, divided the rest into lots and, by legislation, authorized leases of lots to private persons for long terms. About 2,000 persons are interested in lease-holdings covering over 3,000 acres of such land, and many cottages and summer homes have been built and taxes assessed and collected. Plaintiff applied to the State commission of conservation for a lease of one of the lots and was refused on the ground that the legislative act authorizing leases is unconstitutional, because title to the bed of the lake is in the State in trust for the benefit of all the people and, therefore, no part thereof may be set over by lease to any person. We are asked to direct the commission, by our writ of mandamus, to grant the lease. The issue involves the nature of the title in the State and the power of the legislature in the premises.

The State of Michigan, upon admission to the Union, became vested with title to the beds of all the navigable waters, like unto the crown of England, or the crown and parliament at common law. This State is committed to the common-law doctrine that riparian rights extend to the thread of rivers and into lakes, except the Great Lakes. It is necessary to go back to the common law to decide the claim that the title of the State is impressed with a perpetual trust under which rights of navigation, fishing and fowling must be saved to the public. Except as to navigation there has been no grant of power over the beds of the Great Lakes to the Federal government. The Constitution of this State contains no limitation upon legislative power with reference to the beds of navigable waters. What is this trust so often mentioned in the books, frequently cited in legislation and recognized by our legislature, by reference, in acts relative to such beds? And how has it happened that in this State, contrary to the rule in some others, title to the beds of inland lakes and rivers and the beds of the three rivers connecting the Great Lakes has not been retained by the State? Much is answered by recognition of the distinction between the proprietary title and obligations of sovereignty. The beds of navigable waters, like any other part of the public domain, may pass, by grant, or the common-law rule of riparian ownership, to individuals, but the sovereign power retains, because inalienable, all public rights of navigation therein or thereover. There has arisen, out of centuries of effort, limitation of crown prerogative, parliamentary action, numerous adjudications, common necessity, and public forethought, a rule beyond question, impressing rights of the public upon all navigable waters.

The trust is a common-law one; it prevailed in England long before the American Revolution; it was in the Virginia cession of the territory northwest of the River Ohio; it continued during the period the United States held the Northwest Territory and passed as the same trust to the State of Michigan at her admission to the Union; it has not changed in character or purpose and is an inalienable obligation of sovereignty. But at common law the crown and parliament recognized the distinction between the governmental power essential to be retained to carry out the trust and the mere proprietary interest possible of being parted with, without at all preventing governmental control. The State may not, by grant, surrender such public rights any more than it can abdicate the police power or other essential power of government. But this does not mean that the State must, at all times, remain the proprietor of, as well as the sovereign over, the soil underlying navigable waters. If this were the rule then there could exist no, riparian rights in this State in navigable rivers. The rule is that the State may grant the jus privatum but never alienate the jus publicum. The State of Michigan has an undoubted right to make use of its proprietary ownership of the land in question, by lease to private persons and need only hold sovereignty over its use to the end that the public shall enjoy the benefit of the trust.

Act No. 326, Pub. Acts 1913 (1 Comp. Laws 1915, § 606 etseq.), provides:

"All of the unpatented overflowed lands, made lands and lake bottom lands belonging to the State of Michigan or held in trust by it, shall be held, leased and controlled by the State board of control," etc. (now State commission of conservation).

Under the act such land may be leased for 99 years, except as set aside for public parks, but may not be sold and at all times is subjected to the rights of navigation, hunting and fishing. We note the broad language employed in designating the lands to be leased and the contention of the attorney general that: "The legislature may not authorize a grant for private purposes of all the beds of all the Great Lakes, lands held in trust by the State." So far as the issue here is concerned, we entertain the opinion that "lake bottom lands" means lands not wholly subaqueous, but relicted lands and actually surveyed as such by the State in accordance with the provisions of the act.

The issue here presents nothing new. The question, in all of its ramifications, has been considered in numerous cases and there is no difficulty in coming to decision if the common law is fully comprehended and given application. A few extracts from 1 Farnham on Waters and Water Rights, § 36, p. 169, will elucidate the question at bar far better than any attempt to gather guidance from the efforts at application of the common law evidenced in conflicting adjudications.

"After it had become thoroughly established that the crown could grant its rights in the tide waters only subject to the rights of the public, statutes were passed which prevented his making any grant except upon conditions imposed by parliament. And finally the crown was required, as part of the coronation procedure, to make a general grant of the waste lands belonging to it to the public, to be administered for the public good. So that, as the law became finally settled in England, the crown, until deprived of that power by statute, might grant the land under any of the waters of the kingdom, subject only to the public rights therein, which, so far as developed, were only those of navigation and fishery. Even now, with the consent of parliament, the land under the water may be granted for the purpose of reclamation, so far at least as such use of it will be more advantageous than the public right of navigation and fishery. * * * Whether the title is in the crown or in a private individual, it is subject to the public use, to the injury of which the private title can never be used."

At early common law title to the beds of navigable waters was in the crown with prerogative of alienation subject, however, to rights of navigation. The crown so repeatedly exercised the prerogative that little, if any, of such beds remained undisposed of and there came a long period of questioning such grants and also riparian proprietorship. The attorney generals of England were active, but quite unsuccessful, in their efforts to obtain for the crown something the crown could dispose of. Such efforts were at high tide when Charles I. lost his crown, were quiescent during the period of the commonwealth and renewed under Charles II. and his successors, until a quietus was given thereto by a procedure of the coronation divesting the crown of such sole power and resulting, before the American Revolution, in vesting the power in parliament and the crown. So, when the United States acquired title to the beds of navigable waters, such title was vested in the States subsequently admitted, on like footing with the original States, with power of alienation to the extent formerly exercised by the English crown and parliament subject, of course, to rights of navigation and incidents of public use. The legislature of this State has all the power of the parliament of England at the time of American separation, except as delegated to the Federal government or limited by the Constitution of the State. There is analogy between rights of riparian proprietors in navigable rivers and rights of lessees to relicted lake bed under the provisions of the act. The riparian proprietor has private rights to the thread of the river but such rights are subordinate, at all times, to the public rights of navigation and other rights inherent in the people. There is a trust reposed in the sovereignty of the State to safeguard and preserve such public rights. The lessees, under this act, acquire proprietary rights, but at all times such rights are subordinate to the rights of the public to the same extent and on the same principle as are the rights of riparian proprietors.

The provision in the Ordinance of 1787 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, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, imposts, or duty therefor" (1 Comp. Laws 1915, p. 103),

was declaratory of the common law and the ordinance accomplished no more than to preserve the rivers and lakes as common highways and in no sense prevents the State from granting the soil under navigable waters to private owners.Sewers v. Hacklander, 219 Mich. 143. The State is sovereign of the navigable waters within its boundaries, bound, however, in trust, to do nothing in hindrance of the public right of navigation, hunting and fishing. The State may separate the jusprivatum from the jus publicum by sale of the former, but can never, by sale or otherwise, grant away the jus publicum.

As stated in 3 Kent Com. (14th Ed.), 427:

"The public have at common law a right to navigate over every part of a common navigable river, and on the large lakes; and in England even the crown has no right to interfere with the channels of public navigable rivers. They are public highways at common law. The sovereign is trustee for the public, and the use of navigable waters is inalienable. But the shores of navigable waters, and the soil under them, belong to the State in which they are situated, as sovereign."

See, also, Pollard's Lessee v. Hagan, 3 How. (U.S.) 212.

The rights of the public, of which the State, in its sovereign governmental capacity, acts as trustee, have been sedulously protected; not in prohibiting grants by the State of private rights to relicted lake beds or the rule of riparian ownership, for such would restrict the proprietary sovereignty, but in denying the power, by grant or otherwise, to abdicate the trust by placing use and control in private hands to the curtailment or exclusion of public use. The governing rule is pointed out in Illinois Cent. R. Co. v. Illinois, 146 U.S. 387 (13 Sup. Ct. 110); People v. Kirk, 162 Ill. 138 (45 N.E. 830, 53 Am. St. Rep. 277); Saunders v. Railroad Co., 144 N.Y. 75 (38 N.E. 992, 26 L.R.A. 378, 43 Am. St. Rep. 729).

Shively v. Bowlby, 152 U.S. 1, 26 (14 Sup. Ct. 548), involved title to lands below high water mark in the city of Astoria, in the State of Oregon, under an act of the legislature providing for the sale of tide and overflowed lands on the seashore and coast. The court, after reviewing early decisions, stated:

"The foregoing summary of the laws of the original States shows that there is no universal and uniform law upon the subject; but that each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considered for the best interests of the public."

Saunders v. Railroad Co., supra, involved a State grant of land under the waters of the Hudson river. It was said:

"The main assault is based upon the proposition that the State had the title to this land, not as proprietor, but as sovereign and trustee for the public. The contention as to the nature of the title cannot be denied, but the conclusion sought to be drawn from the fact does not follow. The question was decided in this court in Langdon v. Mayor, etc., of New York,93 N.Y. 129, and Mayor, etc., of New York v. Hart, 95 N.Y. 443, and has recently been examined with great learning by the Supreme Court of the United States in the case of IllinoisCent. R. Co. v. Illinois, 146 U.S. 387 (13 Sup. Ct. 110). * * *

"While the State holds the title to lands under navigable waters in a certain sense as trustee for the public, it is competent for the supreme legislative power to authorize and regulate grants of the same for public, or such other purposes as it may deem to be for the best interests of the State, and the legislature has conferred power upon the commissioners of the land office to make such grants for railroad purposes."

Port of Seattle v. Railroad Co., 255 U.S. 56 (41 Sup. Ct. 237), involved tide lands, filled, platted as city blocks and laid out with streets and the sale of lands therein for business and other purposes. It was said:

"The right of the United States in the navigable waters within the several States is limited to the control thereof for the purposes of navigation. Subject to that right Washington became, upon its organization as a State, the owner of the navigable waters within its boundaries and of the land under the same. * * * The character of the State's ownership in the land and in the waters is the full proprietary right."

Who is to determine whether the jus privatum can be let and used without impairment of the jus publicum? It surely is subject to determination, else the lake beds must forever retain their original character, even though, by reliction, they become dry land or otherwise unfitted to serve the purposes of navigation, fishing or fowling. The legislature is vested with power to determine whether the public interests will be best served by leaving lake bottom, unsuited to purposes of navigation, in a wild state and wholly unproductive of any public revenue or of benefit, except to hunters, or permit use thereof, under suitable regulations, to the greater benefit of the public. The legislative act retains in the State every feature of the trust reposed in its governmental capacity and all use authorized thereunder will have to give way to the rights of the public. Is it a breach of the trust to permit cottages to be built where lake bed is made habitable by reliction or in places that may be rendered such by shoring? We think not. Wild fowl will undoubtedly depart from the district occupied by cottages, but must the legislature leave the fowl to be molested by none but the fowler? We think not.

We find nothing in this record warranting us in declaring the act of the legislature void. Plaintiff is entitled to the lease he applied for, and the commission is directed to obey the provisions of the legislative act. We confine our decision to the law and leave, as we must, the grave question of public policy to the legislative power.

The writ of mandamus will issue if necessary. Plaintiff will recover costs.

BIRD, C.J., and STEERE, J., concurred with WIEST, J.