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would have justified a jury in coming to a different conclusion.
This action of the judge was contrary to every precedent, but it is enough to cite the rds of the court in another extradition case in Canada. "In cases aris ing under this Extradition Treaty if the evidence presents several views on any one of which there may be a conviction, if adopted by the jury, the court will not discharge the prisoner but will direct extradition. Queen v. Gould, 20 C. P. 154.
But Judge Caron supported his opinion by such reasoning as this: "Les directeurs de la banque ont au reste payé ce cheque après l'avoir examinê, l'on doit naturellement presumer que ce n'est qu'après avoir été convaincus qu'il était exact a tous egards;" the truth being in evidence undisputed, that the directors absolutely refused to have the check paid by the bank, or to have any thing to do with it; that the bank examiner then threatened to close the bank unless some body took care of this check, and it was then that Mr. Eno, Sr., and Mr. Phelps guaranteed that they would take care of the check and pay in the amount of it to the bank.
This point was regarded by Mr. Justice Caron, the magistrate who heard this case, as of considerable importance, for in his decision discharging Eno he says: "Si elle (the prosecution) avait raison quant à ce fait, dont il est facile de concevoir tout l'importance, puisque si ce cheque avait été signe par l'accusé comme president, après sa resignation, ce serait un faux (forgery) à n'en pas douter, j'adopterais sans le moindre hesitation les conclusions de la poursuite.
But the main contention of the prosecution, which applied also to this indictment, though with more force to the others, was one in view of which the effort to extradite Eno was mainly undertaken by the district attorney. It was a new proposition, never passed upon by the courts, but regarded by lawyers of eminence in Canada and in this State as sound.
It is to be assumed in the first place that the executive government of Canada has now, and has always had, the power to deliver up to a foreign State a fugitive charged with having committed a crime in the jurisdiction of the latter; and this, independent of any treaty made or statute enacted by the Imperial government, though not of course in contravention of an existing statute.
It was so held In re Fisher (1827), S. L. C. A. 245, before either the Jay or Ashburton treaties were in force (see Clark's Crim. Law of Canada, 24); and this right is expressly asserted by the preamble to the Canadian Extradition Act.
It has become familiar to every one interested in "this subject, that in England there exist since 1870 acts of Parliament known as the Extradition Acts, which by their terms applied at one time to the Colonies; provision was made however for the suspension of these acts in the English Colonies upon the enactment of Extradition Acts of their own. In 1877 the present Canadian Extradition Act was passed and the English Atos are no longer operative in Canada (Reg. v. Young, 9 L. C. J. 29), so that at the present time the Ashburton treaty and the Canadian Extradition Act together constitute the law of extradition in Canada.
By section 1 of this act it is provided, "that the term Extradition Crime' may mean any crime, which if committed in Canada * * * would be one of the crimes described in the second schedule of this act;" and by section 13, "in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to the provisions of this act, justify his committal for trial, in case the crime had been committed
in Canada," the judge shall commit the fugitive, The "second schedule" bears the following heading, viz.: "The following list of crimes is to be construed according to the law existing in Canada at the date of the alleged crime whether by common law or by statute made before or after the passing of this act;" and in the list of crimes is specified, "forgery, counterfeiting or altering, or uttering what is forged, counterfeited or altered. ** * Any offense under the act passed in said year (1869), entitled, "An Act respecting forgery," etc.
Here therefore is an express enactment of a government possessing full power over the matter, directing that a fugitive shall be held for extradition when it appears that the crime, if committed in Canada, would have been one of those mentioned in a certain schedule or list of crimes; and that the crime is to be construed, not according to the English law as it existed at the time of the treaty, but according to the law existing in Canada when the crime was committed, and whether then existing at common law or by statute. The case then presented to the judge in the Eno matter was not confined to determining whether a common-law forgery had been committed, but whether one of the offenses named in the second schedule had been committed, that is, an extradition crime. And if it were denied that the act intended to allow extradition to the United States of one who had committed an offense named in the schedule but not named in the Ashburton treaty, although there is nothing in the act indicating such a limitation, still as to every offense falling, or claimed to fall, under any one of the general crimes named in the treaty, this act expressly declares what shall constitute such offense. That is to say, the act declares that the "forgery" for which extradition shall be granted is whatever act or acts are made "forgery" according to Canadian laws in force at the time the act is committed. There is no lack of judicial authority in support of the principle contended for; in the case of Phipps, on a demand from the United States for extradition (Ont. App. 617), Mr. Justice Armour says: "In framing the treaty (Ashburton's) the parties to it were not providing for the past and present but for the future; and I do not think that the treaty should be construed as referring only to what was understood to be forgery at the date of the treaty, but that under the general term forgery, every thing was included which was in the nature of forgery, and which thereafter might be held to be forgery at common law by the decisions of the courts, or might be declared to be forgery by the statute law."
This entirely explodes our newspaper law, founded upon the reading of one case like In re Windsor, that extradition, from Canada at least, must be for a crime all of whose elements and limitations were fixed at the time of the treaty. If that ever were the law, it is now ancient history as to the question under discussion, for the Windsor case was decided some years before the English Extradition Acts of 1870, and 1873, which it would seem have declared the same rule to obtain in England that is claimed by the prosecution to exist in Canada. By the English Act of 1870 it is provided that the "extradition crime" shall be one of the offenses mentioned in the schedule to that act (section 26); and that if the evidence would, “according to the law of England," which means the present existing law of England, justify the committal of the accused if the crime had been committed in England, then the accused may be extradited (section 19); the schedule to this act specifies the offense in question as "forgery," altering, etc. 33 and 34 Vict., ch. 52.
But by the amending act of 1873 (36 and 37 Vict., ch.
60), it is provided that the act of 1870 "shall be construed as if there were included in the first schedule to that act the list of crimes contained in the schedule to this act; and in the latter schedule is included "any indictable offense under * * * * chapter 98 (24 & 25 Vict.), to consolidate and amend the statute law of England and Ireland relatiug to indictable offenses by forgery, or any act amending or substituted for the same which is not included in the first schedule of the principal act" (1870). Chapter 98 of 24 and 25 Vict. is one of the "five consolidated acts of 1861;" and of all this Mr. Justice Stephen in the chapter on Extradition in his History of the Criminal Law (vol. 1, p. 68) says: "Forgery at common law would be included in the schedule to the act of 1870, though it is not within the forgery act of 1861 (chapter 98, supra). If as is probably the case there are any statutory forgeries subsequent to the Forgery Act they also would be included in the words of the schedule of the act of 1870."
It may be added that reported cases arising upon demand for extradition from the United States cannot be urged against this interpretation of the Canadian and Fnglish extradition acts, because our statute on this subject (§ 5270, U. S. Rev. Stat.) expressly provides that the accused may be held if our magistrate "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty.'
Such being the conclusions of those charged with the prosecution of the offenses committed by Eno, and it being regarded as unwise to rest the demand for his extradition simply on a charge of larceny or embezzlement, or for any offense not specified in general terms in the Ashburton treaty, an examination of the laws of Canada revealed the fact that certain transactions of Eno were made indictable offenses under the Dominion Forgery Act; they were likewise indictable as forgery under the provisions of our Penal Code.
This act (32-33 Vict., ch. 19) is entitled "An Act Respecting Forgery;" and by its preamble declares: "Whereas, it is expedient to assimilate, amend and consolidate the statute law of the several provinces of Quebec, Ontario and Nova Scotia and New Brunswick respecting indictable offenses by forgery, and to extend the same as so consolidated to all Canada. "Therefore," etc.
This statute sets forth in twenty-nine sections certain offenses, including most of the common-law forgeries; each section declares the grade of the particular offense, as a felony or a misdemeanor, as the case may be, and prescribes the punishment; many of the sections use the words "whosoever shall forge," etc., etc., as our Code does, without anywhere defining the words "forge or "forgery;" and in many sections the word "forge "does not appear, although the offense declared against may be clearly forgery, nor does any section declare in so many words that the offense set forth shall be forgery.
* * *
Section 27 provides that "whosoever with intent to defraud, draws, makes, signs * any bill of exchange or promissory note, or any undertaking, warrant, order, authority or request for the payment of money *by procuration or otherwise, for, in the name, or on account of any other person, without lawful authority or excuse," is guilty of felony,
This section 27 is identical with section 24 of the English Forgery Act of 1861, mentioned above; the English act is entitled "An act to consolidate and amend the statute law of England and Ireland relating to indictable offenses by forgery;" and the subtitle under which this section 24 falls is identical with the corresponding subtitle of the Canadian act, namely: "As to forging deeds, wills, bills of exchange, etc.;" this section 24 was intended to meet the case decided in Regina v. White, 1 Deu. C. C. 208, where one was in
dicted for forgery in indorsing a bill "per procuration" without authority, but after much argument the judges declared this was not forgery. Of this section Greaves says (2 Russ. on Crimes, 941, n.): "This clause is new, and as framed in order to make persons punishable who without authority make, accept or indorse bills or notes 'per procuration,' which was not forgery under the former enactments."
In view therefore of the dision of opinion and the uncertainty of the law at the time of Regina v. White, and of the enactment of this section 24 to declare the law or to remove this uncertainty; in view of the enactment of this section in section 27 of the Canadian act, and of the declarations of the titles, subtitles and preambles of both the English and Canadian Forgery Acts; in view also of the construction put upon this section by Greaves and by Mr. Justice Fitzjames Stephens, supra, it was fairly to be concluded by the district attorney, and he was advised by learned counsel in Canada, that the offense described in section 27 was, under the laws of Canada, statutory forgery.
Although the Penal Code of New York does not use the words "per procuration," its sections respecting forgery declare the same acts to be forgery as are covered by this section 27.
It may be observed again in this connection, that both the English and Canadian Extradition Acts, by their respective schedules, besides specifying "forg ery as an extradition crime, also specify any offense under the act passed, etc., etc., entitled "An act respecting forgery," etc., which in the Canadian act includes of course the forgery described in this section 27.
Under this interpretation of the laws of Canada and New York certain of the indictments found by the grand jury against Eno were so drawn as to set forth the crime of forgery in every phase under the statutes of either country, that is, in these indictments forgery was well pleaded, whether it were that forgery described by section 27 of the Consolidated Forgery Act or by our Penal Code; and this was done with the express purpose of raising and sustaining the proposition indicated above, that when both countries have in ex. istence at the time of the acts charged substantially identical laws, constituting certain acts forgery, whether these laws are in statute or otherwise, whether created before the treaty or after it, it is for the purposes of the treaty the crime of forgery named in it; and also the further proposition that under the Extradition Act of Canada, following the precedent of England itself, the magistrate must commit the accused for extradition when the evidence would warrant his commitment for any one of the offenses named in the schedule.
It is not my object at this time to set forth the bearing which the evidence had to these legal propositions; but as I have indicated, rather to correct the existing misapprehension that the extradition of Eno was demanded upon a charge of forgery at common law, supported by evidence of "false entries in books." It may be said however that while evidence of embezzlement and misappropriation of money, and of consequent false entries had to be produced in order to establish an intent to defraud, which is an element of all forgeries, there was evidence, taken all together, such as in the opinion of the counsel representing the prosecution amply sustained the charge of forgery according to its common-law meaning. It does not seem to be well known, at least to those who through the press seek to inform the public that the now famous declaration of Chief Justice Cockburn in the Windsor case that forgery "by universal acceptation is understood to mean the making or altering a writing so as to make the alteration purport to be the act of some other person," is not nor has ever been the limitation of the
word forgery. Forgery "is the fraudulent making or
A consideration of the circumstances under which
to be what they were not ;" that is, genuine cashier's ERROR to Alpena.
checks and genuine obligations of the bank, would
A word should be said in conclusion as to the Tully case and Judge Brown's decision, about which so much was said in application to the Eno matter. The charge against Tully was in effect, that being manager of his bank, by means of checks which he was authorized to draw, he obtained money of his bank; and that to conceal his misappropriations he made false tickets called "blue slips," which represented to the bookkeepers of the bank that he had properly disposed of the money; and this making of blue slips was charged as the forgery. The court properly determined that the drawing of the money was no offense, and that for all that appeared the criminal intent arose afterward, and resulted in a simple embezzlement of the money; and that the making of the blue slips was equivalent to false entries in books, and the Windsor case had settled the law in England as to that; that though the court was inclined to the opinion that even then the acts charged were forgery within the treaty, the Windsor decision demonstrated that to extradite Tully to England would be an idle ceremony. The remarks of Judge Brown that no English case since the Windsor case had been brought to his attention leads to the conclusion that he was not aware of the case of Regina v. Ritson, supra.
There was never at any time a proposition to obtain the extradition of Eno on the charge of forgery in making false deposit or loan slips or false entries, of which there were many; these were proven to show a
fraudulent intent as the principal act charged; it was the making of the "cashier's checks" under the circumstances alluded to, that was charged as forgery.
It is a matter for regret that the questions raised in this case, probably for the first time, could not be passed upon by the full bench of judges; but the laws of Canada provide no mode of reviewing the decision of Mr. Justice Caron discharging the prisoner, although if he had held him in the first instance Eno could have taken the matter up.
GEORGE H. ADAMS.
NEW YORK, August 6, 1884.
RIPARIAN RIGHTS ON THE "GREAT LAKES.”
MICHIGAN SUPREME COURT, APRIL 23, 1884.*
LINCOLN V. DAVIS.
Riparian rights upon the great lakes are in theory the same as upon navigable streams,and are not governed by any such proprietary division as high and low water mark. The submerged lands are appurtenant to the upland so far as their limits can be reasonably identified; but in public waters the State law must determine how far rights in such lands can be exercised consistently with the easement of navigation.
The State can forbid any erections in navigable waters and on
navigable streams, and along the great lakes can fix the distance, beyond which private erections cannot be maintained.
Fishing in open waters remote from the land is a maritime business like navigation, and may be carried on with any suitable machinery, and even with stakes, wherever it does not interfere with navigation and is not forbidden by law. And in narrow streams fishing from boats with lines cannot be complained of by riparian owners if the persons fishing have the right to be there.
Fish are feræ naturæ, and can be taken by any one who has the right to be on the premises.
J. D. Turnbull, for plaintiff.
Carpenter & Williams and Hatch & Cooley, for defendant and appellant.
CHAMPLIN, J. Thunder bay is a portion of the waters of Lake Huron. The bay is of considerable magnitude, being about 13 miles wide at its mouth, and extending from South Point in a north-westerly direction a distance of 15 or 20 miles. The shores of this bay are quite irregular, and indented with smaller bays, one of considerable size being known as Squaw bay. Sulphur island is situated in Thunder bay, between one and two miles from the main land, in the western part of the bay. It contains about 53 acres of land, and was surveyed and sold by the United States government as lots 1 and 2 of section 13, in township 30 N., range 8 E. This island is valuable only in connection with the fisheries in Thunder bay. There is a channel between it and the mainland of about 13 feet of depth of water, but the main channel used in navigation to and from the city of Alpena, which is situated upon the bay, lies north-east of the island.
The defendant at the time of the grievances complained of was the lessee, and in possession of Sulphur island. He had been for some time engaged in the business of fishing in Thunder bay, in front of lands owned or leased by him, and claimed that by virtue of his lessor being the owner of Sulphur island, he was the proprietor of the soil under the water in front thereof, and controlled the right of fishing in those waters by means of trap-nets, which cannot be used without the aid of stakes or poles driven in the ground. The plaintiff is also a fisherman, and sometime in June,
*19 N. W. Rep. 103.
1882, caused stakes to be driven in Thunder bay, commencing about a mile east of Sulphur island, and thence continued eastward for a distance of about 160 rods, for the purpose of affixing thereto trap-nets for fishing. The depth of water where the stake nearest the island was driven was 26 or 27 feet, and where those were driven the furthest from the island the depth of water was 36 or 37 feet. The defendant also proceeded to drive stakes near those driven by the plaintiff, and notified the plaintiff to take up and remove those placed there by him, but he refused, and the defendant pulled them up, and they floated away and were lost. The plaintiff brought trespass and recovered.
There are two questions presented by this record. (1) Is the owner of land bounded by the waters of the great lakes, like Lake Huron, entitled to the rights ofa riparian proprietor in front of his lands to the cen ter of the lake? (2) If so, do such rights confer upon such riparian proprietor the exclusive right of fishing in the waters in front of his land by means of stakes or other attachments to the soil under water?
The plaintiff bases his right of recovery upon the public right of fishing in the great lakes. By the common law all persons have a common and general right of fishing in the sea, and in all other navigable or tide waters; and no one can maintain an exclusive privilege to any part of such waters, unless he has acquired it by grant or prescription.
In the case of Carter v. Murcot, 4 Burr. 2162, it was declared that in rivers not navigable-that is, in rivers not affected by the tides-land-owners had the right of fishing on each side, commonly, to the middle of the stream, and in navigable tide-water rivers the right was prima facie in the king, and was public, but a private person may have an exclusive right by grant or prescription.
The decisions in England have been uniformly to the effect that the owner of land bordering on streams not affected by the flow and reflow of the tides, whether in fact navigable or not, has the exclusive right of fishing in front of his land to the middle of the stream. The later cases are fully as strong as the earlier. In the case of Malcomson v. O'Dea, 10 H. L. Cas. 618, the court said: "The soil of navigable tidal rivers, like the Shannon, so far as the tide flows and reflows, is prima facie in the crown, and the right of fishing prima facie in the public. But for the Magna Charta the crown could by its prerogative exclude the public from such prima facie right, and grant the exclusive right of fishing to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by act of the crown not later than Henry II."
In Murphy v. Ryan, 2 Ir. R. C. L. 143, it was held that the public could not acquire, by immemorial usage, any right of fishing in a river in which, though navigable, the tide did not ebb and flow; and to the same effect is Hargreaves v. Diddams, L. R., 10 Q. B. 582.
In Johnston v. Bloomfield, 8 Ir. R. C. L. 68 (Exch. Cham.), it was held that the public has not, of common right, a common of fishery in large inland waters in which the tide does not flow and reflow, although they are navigable.
A case decided in the House of Lords in 1878, and cited as Bristow v. Cormican, 3 App. Cas. 641, was where the plaintiff brought trespass against the defendant to establish a right to a several fishery in Lough Neagh. Defendant alleged that the several fishery and the lands covered with water were, and from time immemorial had been, part of an inland sea, called Lough Neagh, and that said inland sea had been a common or public navigable inland sea, and that in
the part thereof mentioned, every subject of the realm had, and of right ought to have, the right and privilege of fishing, and that in the exercise of that right he committed the trespass complained of. 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 Cairus 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 14 to 16 miles long, and from 6 to 8 miles broad. It contains nearly 100,000 a@res; 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 oth 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 onto his frontage. But no question arises in this case as to the rights of the riparian proprietors among 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 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 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. Comm. 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 com
mon 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 reasons 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 supposed 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 to 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 this riparian proprietorship in Sulphur island and that as a concomitant of this interest in the soil he has the exclusive 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's v. People, 5 Wend. 423; Champlin R. Co. v. Valentine, 19 Barb. 484; Fletcher v. Phelps, 28 Vt. 57; Jakeway v. Bassett, 38 id. 316; Austin v. Rutland R. Co., 45 id. 215; Seaman v. Smith, 24 Ill. 521.
In State v. Gilmanton, 9 N. H. 461, Parker, C. J., 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 of 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 Comm. 429, and note b.; Gould Waters, § 203, and cases in note 3; Ang. 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 20,000 square miles, while the Irish sea is computed at less than 15,000. 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 resemplauce of the great lakes to the seas which surround 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 owner of lands thus bounded has no rights to the use of the water or the 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. Schurmeier, 7 Wall. 272; Yates v. Milwaukee, 10 id. 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; 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 this right is said not to exist without legislative authority. Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Garitee v. Baltimore, 53 Md. 432; Alden v. Pinney, 12 Fla. 348; Norfolk City v. Cooke, 27 Grat. 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 id. 183; Pere Marquette Boom Co. v. Adams, 44 id. 404; S. C., 6 N. W. Rep. 857; Watson v. Peters, 26 Mich. 517; Lorman v. Benson, 8 id. 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.
The defendant calls attention to the case of Richardson v. Prentis, 48 Mich. 88; S. C., 11 N. W. Rep. 819, as deciding the very point in issue, and claims that it was there held that the owner of lands upon the shore of the Thunder bay does not 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 distauce 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 freshwater streams have the exclusive right of fishing in the