03-26-2004, 02:57 AM
[center][font "Arial"][#008000][size 4]Law Enforcement Division[/size][/#008000][/font][/center] [center][font "Arial"][#008000][size 6]PUBLIC RIGHTS ON MICHIGAN WATERS[/size][/#008000][/font][/center] [center]![[Image: green%20and%20black%20stripe.gif]](http://www.michigan.gov/images/lines/green%20and%20black%20stripe.gif)
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[center][font "Arial"][size 4]MICHIGAN CONSTITUTION [/size][/font][/center]
[font "Arial"] The State of Michigan is entrusted with protecting the natural resources of the state and its citizens through a specific provision within the Michigan Constitution.[/font] [indent] [indent]
[font "Arial"]The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.[/font]
[font "Arial"] Mich. Constitution, Art IV, ยง52.[/font][/indent][/indent]
[font "Arial"]The State is compelled to act to uphold and advance this constitutional provision.[/font]
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[center][font "Arial"][size 4]INTRODUCTION[/size][/font][/center][font "Arial"]
The State of Michigan is surrounded by four of the five Great Lakes--the world's largest freshwater lakes. These Great Lakes constitute 90% of the country's fresh surface water, and about 20% of the world's fresh surface water. The Great Lakes are resources of vital national importance; utilized for manufacturing, shipping, drinking, recreation, and tourism. Michigan has approximately 3,288 miles of Great Lakes coastline, more than 10,000 inland lakes and ponds and is interwoven by a 35,000-mile web of freshwater rivers, streams, and wetlands. Accordingly, Michigan has more boat registrations than any other state in the country. It comes then as no surprise that disputes arise between those who wish to utilize these waters and those who own private land through which these waters flow.
The following document is offered as a guide to how water rights came to be and the current state of the law. This information has been compiled for convenience in answering common questions regarding water law in the State of Michigan. This material highlights the evolution of court decisions and legislative enactments dealing with water and related legal issues. The manual discusses the court's role in defining and shaping Michigan water law. The "floating log test," the "recreation-boating test" and other terms pertinent to water law are discussed and defined. The text also provides an overview of the applicable statutes enacted by the Michigan Legislature. A list of common questions and their answers has been included to provide easily accessible information regarding situations of frequent interest and discussion. Michigan's waters support numerous activities and uses. It is therefore imperative to discuss these uses as they relate to and interact with areas of water law. Accordingly, not only water, but such ancillary issues as fishing, boating, hunting, trapping, ownership, access, development and their related rights are discussed in varying detail.
The field of water law is complex and develops periodically through both legislative and judicial action. This manual is not, nor is it meant to be, an exhaustive or conclusive evaluation of the issue. This material is designed to provide the reader with a working knowledge and understanding of this complicated yet interesting area of Michigan law.
This material was first compiled as Law Enforcement Division Report No. 9. The authors were Mr. Frank Opolka of the Law Enforcement Division and Mr. John F. Leone, a student intern from the Thomas M. Cooley Law School. Mr. Opolka is now retired. Mr. Leone is currently an Assistant Attorney General for the State of Michigan.
The material in this report related to the status of water law in Michigan was updated on December 1, 1993, through the diligent efforts of Stephen L. Madkour, Thomas M. Cooley Law School. The report was editorially updated in April, 1997.[/font]
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[center][font "Arial"][size 4]THE BIRTH AND HISTORICAL DEVELOPMENT OF WATER RIGHTS[/size][/font][/center]
[font "Arial"]Primitive man's existence was primarily dependent upon game and fish. From the beginning of recorded history, kings and sovereigns, being the strongest power in the land, owned the game and fish as they owned all property. They were their own enforcement agents in protecting their rights.[/font]
[font "Arial"]When William the Conqueror imposed his rule upon England in the year 1066, the concept that all property was vested in the king crossed the English Channel. In 1215, King John of England surrendered many of the kingly prerogatives to his barons and nobles. Present concepts of land ownership and property rights in game and fish have their beginnings in this action.[/font]
[font "Arial"]With the American Revolution, the colonies confiscated the English crown property and many crown grants. By the Acts of Confederation, the ownership of land was ceded to the Federal Government. Virginia, New York, Maryland and Connecticut had claims to lands of the Northwest Territory. Virginia's claim to the Michigan area seems to have been the strongest, which may explain frequent references in the record of territorial jurisprudence to Virginia procedure, and interpretation to the common law of England.[/font]
[font "Arial"]At the close of the Revolutionary War, certain crown grants, including a few from the King of France, were recognized and patents were issued by the Federal Government. Grants of land were made as military bounty warrants to soldiers and sailors. The United States later established a definite land policy and large areas were conveyed to colonizers. These new owners displaced the sovereign, however they did not acquire ownership of the game and fish which passed to the states.[/font]
[font "Arial"]Game and fish, being migratory in their habits, disregard property boundaries and pass over the lands of many owners. If all land were owned by the state, the problem would be simple.[/font]
[font "Arial"]The landowner is conceded to have exclusive rights in the taking of game, either by hunting or trapping, upon his or her own property and in open seasons. This right, being a property right originating in ownership of land, may be sold or transferred. Thus, one may own the land but sell the right to take game. A parallel is the sale of mineral rights by the landowner who may continue to occupy and use the land, while mining by others is in progress.[/font]
[center][font "Arial"][size 4]MICHIGAN'S HISTORICAL DEVELOPMENT[/size][/font][/center]
[font "Arial"]In Michigan, riparian owners on inland waters historically had title to the land under the water. It was, therefore, necessary to provide a legal avenue in which to convey rights to provide public fishing over private lands. The source of this right in Michigan is unique in that it is dependent in many instances upon the question of navigability of the water.[/font]
[font "Arial"]Under the English system, fishing rights could be a common right of all and also limited or restricted, as the privilege was acquired by prescription, grant or land ownership. Thus, the English common law does not govern the taking of fish as it governs the taking of game. Water is like air, owned by no one and yet owned by all. Therefore, no one can claim an exclusive right to take fish on the basis of water ownership. In Michigan, the right to take fish is shared by all, provided the water in which they are taken is public.[/font]
[font "Arial"]Under the law of this state, although the riparian owner on an inland lake or stream owns the soil under the water, he does not own the navigable water, and he does not own the fish. So far as they are capable of ownership, they belong to the state for the benefit of the people.[/font]
[font "Arial"]By judicial decision in 1860, the title to the beds of inland navigable waters, both lakes and streams, was declared to be in the riparian owners. The title, allowed to be taken by the riparian owners, was subordinate to public rights, including the public right of fishing. In contrast, the title to bottomlands of the Great Lakes is held in trust by the State of Michigan.[/font]
[font "Arial"]For purpose of clarification, a riparian owner is simply one who owns land or property abutting water. Actually, a riparian is one who owns land contiguous to a river or stream, and one who owns lands contiguous to a lake is properly called a littoral owner. But in common practice, both are referred to as riparians.[/font]
[font "Arial"]The question is often asked: How did the State of Michigan acquire the duty to hold the soil beneath navigable waters in trust for public use? Virginia ceded the Northwest Territory to the Federal Government. Michigan, which was carved from this territory, took title to the submerged lands limited to the grant by Virginia and the Ordinance of 1787. This ordinance, being one of the laws of the Northwest Territory, and still of binding force in Michigan, provided that "[t]he navigable waters leading into the Mississippi and the Saint Lawrence, and the carrying places between, shall be common highways, and forever free, . . . without any tax, impost, or duty therefor." Art. IV Northwest Ordinance 1787. Therefore, Michigan, upon admission to the Union, took title burdened with the aforesaid public trust.[/font]
[font "Arial"]Michigan, either by legislative enactment or judicial decision, could in turn, surrender title to its submerged lands. The State, by judicial fiat in the case of Lorman v Benson, 8 Mich. 18 (1860), retained title to the bed of the Great Lakes, but surrendered title of the submerged soil of inland navigable waters to riparian owners. However, this transfer of title could not unburden such submerged land from the public right of navigation, fishing, and related uses as the State of Michigan could not convey to a private individual more rights than it originally took. It is significant that the title, which the state took to all navigable waters, was burdened with the common law trust for the benefit of the public.[/font]
[font "Arial"] [/font] [center][font "Arial"][size 4]WHAT ARE PUBLIC WATERS?[/size][/font][/center] [center][font "Arial"][size 4]THE "FLOATING LOG" TEST AND KEY DEFINITIONS[/size][/font][/center]
[font "Arial"]It should be emphasized here that the terms "public" and "navigable" are synonymous; likewise are the terms "private" and "non-navigable." This is due to the fact that since 1787, prior to Michigan's admission to the Union, applicable law has stated as "public" all waters that are navigable and, as "private" all waters that are "non-navigable." Accordingly, the legal test used to determine "navigability" is the crux of the matter. The fact that a water is boatable, does not necessarily, in the opinion of the courts, make it navigable.[/font]
[font "Arial"]Public and private rights are controversial issues that have historically been determined by the courts. Michigan courts have repeatedly held that the public has rights in navigable water. These waters have been defined as any water which in its natural state is capable of and has been used for the purposes of commerce, travel and trade by the customary and ordinary modes of navigation. The floating of logs during the lumbering days was held to be an act of commerce. Consequently, any lake or stream used for this purpose would be considered navigable within the meaning of this term. Thus, the log floatation test has largely become the yardstick in Michigan to determine the "navigability" of a waterbody, that is, whether public or private.[/font]
[font "Arial"]Pursuant to the language of judicial decisions are the following key definitions:[/font]
[font "Arial"]A. Navigable Inland Lake:[/font]
[font "Arial"]A navigable inland lake is any lake which is accessible to the public via publicly-owned lands, waters or highways contiguous thereto, or via the bed of a navigable stream, and which is reasonably capable of supporting a beneficial public interest, such as navigation, fishing, hunting, swimming or other lawful purposes inherently belonging to the people. Bauman v Barendregt, 251 Mich. 67; 231 NW 67 (1930); Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Kerley v Wolfe, 349 Mich. 350; 84 NW2d 748 (1957). But, if the littoral landowners of a "dead end" lake object, there are no public rights. Bott v Natural Resources Commission, 415 Mich. 45; 327 NW2d 838 (1982).[/font]
[font "Arial"]In this state, natural waters have been divided into two classes: (1) the Great Lakes; and (2) inland waters. Titles and rights in the latter were declared in Rice v Ruddiman, 10 Mich. 125 (1862), and in Turner v Holland, 65 Mich. 453; 33 NW 283 (1887), to be governed by the same rules of law, whether they were rivers, lakes, or ponds, and whether the lakes were large or small.[/font]
[font "Arial"]B. Navigable Inland Stream:[/font]
[font "Arial"]A navigable inland stream is (1) any stream declared navigable by the Michigan Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States; (3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's. Moore v Sanborne, 2 Mich. 520 (1853); Thunder Bay River Booming Co. v Speechly, 31 Mich. 335 (1875); Stofflet v Estes, 104 Mich. 208; 62 NW 347 (1895); Cole v Dooley, 137 Mich. 419;100 NW 561 (1904); Sterling v Jackson, 69 Mich. 488; 37 NW 845 (1888); Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Rushton ex rel Hoffmaster v Taggart, 306 Mich. 432; 11 NW2d 193 (1943); Diana Shooting Club v Husting, 156 Wis. 261; 145 NW 816 (1914); Muench v Public Service Comm., 261 Wis. 492; 55 NW2d 514 (1952); Nekoosa-Edwards Paper Co. v Railroad Comm., 201 Wis. 40; 228 NW 631 (1930); Lamprey v Metcalf, 52 Minn. 181; 53 NW 1139 (1893); Kelley v Hallden, 51 Mich. App. 176; 214 NW2d 856 (1974).[/font]
[font "Arial"]Michigan's approach to the issue of defining navigability has progressed little in the 120 years since Moore, supra, the earliest and still most influential case, was decided. Navigable waters in this state have been divided into two classifications: (1) strictly navigable; and (2) floatable (the latter sometimes termed navigable in a limited or qualified sense). Strictly navigable waters are those capable of use for valuable boat or vessel navigation, i.e., public highways under English common law. Floatable waters, as in Moore, are those suitable, in their natural condition, for the floating of logs. Once it is established that a water is to be included in either classification, public rights attach.[/font]
[font "Arial"]The right to public use of navigable lakes and streams includes the right of trespass upon the submerged soil, but does not extend to the uplands of riparian owners while in such waters, or in entering or departing from them.[/font]
[font "Arial"]It follows, therefore, that the numerous citations supporting the test of navigability on rivers is also applicable to lakes. The determination of navigability and non-navigability is a civil process. [/font]
[font "Arial"]In a 1968 expression of the Michigan Supreme Court on the question of navigability, In re Martiny Lakes Project, 381 Mich. 180; 160 NW2d 909 (1968), the import of Justice Black's majority opinion stated that navigable waters are divided into two distinct classes; namely those navigable in a qualified sense and those unqualifiedly navigable. The court held that streams navigable in a qualified sense were "small streams which by common law belong to the public for the purpose of floatation and fishing" as compared to larger streams which are navigable in the more enlarged meaning of the term, unqualifiedly navigable, i.e., streams which in their natural condition are adapted to valuable boat or vessel navigation (vessels of 10 or more gross tons).[/font]
[font "Arial"]Many are
concerning the true interpretation of this decision. Justice Black was subjected to considerable unjustified abuse and criticism, but his rationale is deemed correct and in keeping with earlier court decisions, viz., Moore v Sanborne, Rushton ex rel Hoffmaster v Taggart, Collins v Gerhardt supra, and Giddings v Rogalewski, 192 Mich. 319; 158 NW 951 (1916).[/font]
[font "Arial"]Some years ago, the United States District Court in Grand Rapids, in the celebrated Pine River, Osceola County case Ne-Bo-Shone Association, Inc. v Hogarth, 7 F. Supp. 885 (W.D. Mich. 1934), established a new precedent. Judge Raymond stated: [/font] [indent] [indent]
[font "Arial"]It is difficult to see why the right to navigate should include, as an incident thereto, the right to take fish. It is the view of this court that the right to take fish is not an incident of navigation, but a right arising from the fact that the waters, in which the right is claimed, are public waters. Both rights arise from the fact that the waters are public, not private. The rights coexist. Neither finds its source in the other.[/font][/indent][/indent]
[font "Arial"]This opinion may have forestalled many cases of dispute which otherwise would later have reached the courts. However, until this precedent is more firmly established, the rule requiring navigability, which has long been accepted, would seem to be the surest determination of the public or private character of a lake or stream.[/font]
[font "Arial"]Those watercourses located within Michigan which have been declared navigable by either the Michigan Supreme Court, United States Army Corp. of Engineers or through Legislative enactment are identified within the Appendix of this document. [/font]
[center][font "Arial"][size 4]THE BLURRED DEFINITION OF NAVIGABILITY[/size][/font][/center] [center][font "Arial"][size 4]THE RISE AND FALL OF THE RECREATIONAL USE TEST[/size][/font][/center]
[font "Arial"]The greatest controversy today in defining "navigability" is whether recreational uses should be a determining factor. Unfortunately, Michigan courts have rendered sundry and often diverse rulings defining navigability. The Department of Natural Resources (DNR) is uniquely interested in the definition as the DNR is often the object of the public's inquires regarding the navigable status of variable lakes and rivers. For more than a century the test for navigability has been--and remains--the log floatation/commercial use test. However, recent cases have concluded that, today, public recreation has greatly displaced commercial uses. Therefore, the argument goes, for the waterways to best serve the public--as is the historical intent of the law--recreational uses should be considered in the determination of navigability.[/font]
[font "Arial"]The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability. The Court affirmed a trial court's judgment enjoining landowners from interfering with the passage of boaters and waders on the St. Joseph River.[/font]
[font "Arial"]The question before the court was whether the St. Joseph River is navigable where it flows through defendant's property. The landowners argued that, since no evidence was submitted that the river section in question was ever used for commercial transportation or log floating, the river was not navigable at that point. The State contended that recreational uses alone can support a finding of navigability.[/font]
[font "Arial"]The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra.[/font]
[font "Arial"]The court did not dwell on the distinction between strictly navigable and floatable streams, recognized in Moore, but stated that once it was established that a stream is found to be included in either classification, public fishing rights attach. Notwithstanding that the public's right to fish in the river was not established in the trial court, nor was evidence submitted by which the court could find the river to be navigable in either a limited or strict sense, the court held that recreational uses alone could support a finding of navigability.[/font]
[font "Arial"]The broad underlying principle of Moore--that a watercourse's navigability is a function of its public usefulness and value--convinced the court that the Michigan definition of "navigable waters" must be expanded to include those waters which are suitable for public recreational use.[/font]
[font "Arial"]The Michigan Court of Appeals concluded by stating: "We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft." Hallden at 181. "Capable of being navigated by oar" is deemed to include navigation by canoe as well as by rowboat.[/font]
[font "Arial"]Had it not been subsequently overruled, Kelley v Hallden would have established a landmark decision in the annals of navigability litigation in Michigan. But in 1982 Hallden was overruled by the Michigan Supreme Court in a trio of cases. The Supreme Court rejected the recreational-boating test and cited "the need for a comprehensive legislative solution."[/font]
[font "Arial"]Bott v Natural Resources Commission, Nicholas v McDaniel, and Attorney General ex rel Department of Natural Resources v Nicholas, 415 Mich. 45 (1982) were heard together and argued before the Supreme Court in January of 1980. It was almost three years before an opinion was issued on December 8, 1982. The Bott trio is, today, the controlling legal decision on navigability in the State of Michigan.[/font]
[font "Arial"]In the Bott case, the Supreme Court forwarded three main premises:[/font]
[font "Arial"]1. Changes in property law should be avoided whenever possible. Countless acres have been purchased and great expenditures have gone to improve properties in reliance upon property rules of law "fully established" and maintained for over sixty years.[/font]
[font "Arial"]2. Adopting a recreational use test would result in no "significant" addition of waterways subject to public use but would subject certain otherwise private waters not only to the "quiet" sport of fishing but also the "intrusive and jarring" activity of boating and water recreation. Bott at 66. These activities may render the property unfit for the private landowners use as a refuge and retreat as well as decrease the private character of the property and thus its commercial value. Such an imbalance of public benefit and private burden amounts to a taking by the State without just compensation, especially in light of the long enforced property laws that have induced the extensive reliance of these otherwise private riparian landowners.[/font]
[font "Arial"]3. "The importance that society attaches to the various public values, like the importance society attaches to the need for expanded recreational uses, cannot be gauged by this court with accuracy." Id. at 74. "Faced with an uncertain societal consensus, an inability to compensate riparian owners for the loss of a valuable right, and the need for a comprehensive legislative solution, we believe that this court is not an appropriate forum for resolving the competing societal values which underlie this controversy." Id. at 86. In essence, the Supreme Court extended an express request of the Legislature to resolve the controversy over the definition of the term "navigability."[/font]
[font "Arial"]Thus, the recreational use test adopted in Kelley v Hallden has been overruled by the Bott cases and the commercial use/log floatation test continues as the controlling legal test of navigability.[/font] [center][font "Arial"] [/font][/center]
[center][font "Arial"][size 4]THE PROBLEM (AND SOLUTION) AS VIEWED BY THE DEPARTMENT OF NATURAL RESOURCES[/size][/font][/center]
[font "Arial"]There is presently a great deal of uncertainty regarding the public or private character of most of the State's streams, particularly the smaller streams. This is due to the fact that the old, but current, test by which streams are established as public (the floatability of logs) is fast becoming unprovable. The old rivermen are gone and can no longer testify that these streams were so used. Although the public need that created this public right may have been floatation of logs, a different need has arisen over the past sixty years. There should now be written into the law a means of determining the public/private character of a stream without need for judicial determination every time a dispute or the need to make an administrative ruling arises.[/font]
[font "Arial"]A statutory determination of a "navigable stream" is urgently needed to clarify the fishing, boating and recreational rights of the public, as well as provide criteria of navigability, and direction to state agencies in the implementation of existing laws and regulations. The State and the Michigan public believe it is needed.[/font]
[font "Arial"]The public or private status of a stream to date has been determined only by judicial action. Streams where such determinations have been made represent only an infinitesimal number of the state's total streams. No state agency can, under present conditions, satisfactorily respond to public inquiry as to their rights pertaining to streams, except in the limited instances where litigation has resulted in Supreme Court decisions declaring the stream public or private. Most of this problem could be resolved through legislative actions.[/font]
[font "Arial"]Enactment of a statutory definition would augment both 1994 PA 451, Part 315, Dam Safety, MCL 324.31501 et seq; and 1994 PA 451, Part 301, Inland Lakes and Streams, MCL 324.30101 et seq; and: (1) preclude costly and time-consuming litigation to ascertain the public or private character of streams; (2) expedite control of unauthorized dams, dredgings and diversions which (a) despoil stream habitat and fishing by raising water temperatures and siltation, (b) block migration of spawning fish, © deny lawful passage to wading and boating fishermen, and (d) diminish the quality and quantity of water delivered to downstream riparians; (3) permit ready removal of fences across navigable streams intended to prevent fishing access; (4) clarify and permit dissemination to the public, upon inquiry, a listing of those streams in which they have the right of fishing and boating; and (5) last, but not least, clarify, and thus protect, the vested property rights of landowners in non-navigable streams of which their control is now uncertain due to absence of adequate standards.[/font]
[center][font "Arial"][size 4]WHAT HAS BEEN DONE BY THE DEPARTMENT OF NATURAL RESOURCES?[/size][/font][/center]
[font "Arial"] In 1969, the DNR proposed legislation to statutorily define a navigable stream. The bill, H.B. 2377, was introduced by Representatives Snyder, Anderson, Smit, et al. The bill as amended in the Committee on Marine Affairs read:[/font] [indent] [indent]
[font "Arial"][size 2]WHENEVER THE PHRASE "NAVIGABLE STREAM" OR "PUBLIC STREAM" IS USED IN ANY EXISTING OR FUTURE STATUTE, THE TERM SHALL MEAN ANY WATERCOURSE WHICH IS NOW OR HAS IN THE PAST PROVIDED, OR IS CAPABLE OF EITHER OF THE FOLLOWING:[/size][/font] [indent]
[font "Arial"][size 2](A) TRANSPORTING ANY BOAT, CANOE OR CRAFT OF ANY KIND FOR ANY PURPOSE WITH 1 OR MORE PERSONS ABOARD,[/size][/font]
[font "Arial"][size 2](B) FLOATING OR TRANSPORTING LOGS,[/size][/font]
[font "Arial"][size 2]© PROVIDING A PUBLIC FISHERY WHEN THE EXERCISE OF SUCH IS ACCOMPLISHED WITHOUT TRESPASS UPON THE UPLANDS OR RIPARIAN OWNERS.[/size][/font][/indent][/indent][/indent]
[font "Arial"][size 2]A WATERCOURSE, OTHERWISE NAVIGABLE OR PUBLIC, SHALL NOT BE BARRED FROM THIS CLASSIFICATION NOTWITHSTANDING THERE MAY BE NATURAL OR ARTIFICIAL OBSTRUCTIONS WITHIN ITS REACHES WHICH NECESSITATE PORTAGES AROUND SUCH OBSTRUCTIONS.[/size][/font]
[font "Arial"]The bill passed the House on June 12, 1969, with only 5 dissenting votes. The bill, however, died in the Senate Committee on Conservation where it met opposition from certain private interest groups. The definition was deemed reasonable and included within its purview only those streams which have the natural qualities to be of capacity for beneficial public service and, therefore, navigable and subject to the state's paramount public trust.[/font]
[font "Arial"]Our reasons for deeming the DNR proposed definition as reasonable, constitutional and not offensive to those vested rights which riparians have in non-navigable streams:[/font]
[font "Arial"]The following arguments support definitions (A), (B) and ©, respectively, of our proposed definition.[/font]
[font "Arial"](A) The Ordinance of 1787 is part of the law of the state because it was specifically incorporated into the laws of the state when the state was established and because it constituted a compact between the territory and outside jurisdictions that even statehood could not destroy.[/font]
[font "Arial"]Article IV of the Ordinance of 1787 provides:[/font]
[font "Arial"]"The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, . . . ."[/font]
[font "Arial"]It was framed without regard to the common law rule as to what constituted navigable waters and designed to extend over all streams capable of being used for any purpose of public utility. Moore v Sanborne, Lorman v Benson, supra, and Tyler v People, 8 Mich. 319 (1860).[/font]
[font "Arial"]It applied not only to ship and vessel navigation, but more generally to the passage of canoes and bateaux, which were then the chief means of conveyance. Moore v Sanborne, Lorman v Benson, supra; Burroughs v Whitwan, 59 Mich. 279; 26 NW 491 (1886); City of Grand Rapids v Powers, 89 Mich. 94; 50 NW 661 (1891).[/font]
[font "Arial"]The Ordinance of 1787 included with "navigable waters," portages or carrying places connecting navigable waters that were used by parties making long voyages in small boats by passing from river to river. Lorman v Benson, supra. But it did not dignify as a navigable water every little rill or brook whose waters finally reached the Mississippi or the St. Lawrence. This definition would allow recreational uses alone to support a finding of navigability.[/font]
[font "Arial"](B) The Michigan doctrine of navigability was developed by the Supreme Court 120 years ago in Moore v Sanborne, supra. In that case, the court adopted a rule of "capacity for use to meet public necessity" as the true test of a stream's navigable status, and declared navigable a small stream having a "limited capacity for floatage." The rules and principles of the Sanborne case have been adopted and followed by the Supreme Court in subsequent cases.[/font]
[font "Arial"]The question of whether the public should be entitled to travel upon any given stream should consider relevant the question of whether the stream in its natural condition is able to transport a log, or is capable of sustaining travel by a customary mode of water transportation. The ability of a stream to transport a log was and should now be one of the yardsticks by which the character of a stream, whether public or private, is measured. Such streams were essentially our major highways, which no one had a right to block. They were streams that the people normally regarded as public and expected to be open to travel and other uses. This public expectation is still valid today and should be protected.[/font]
[font "Arial"]© In Rushton ex rel Hoffmaster v Taggart, supra, the Supreme Court ruled the South Branch of the Pere Marquette River as navigable, and accepted the trial court's statement describing the nature of the stream: [/font] [indent] [indent]
[f
[/center] [center][font "Arial"][size 4]MICHIGAN CONSTITUTION [/size][/font][/center]
[font "Arial"] The State of Michigan is entrusted with protecting the natural resources of the state and its citizens through a specific provision within the Michigan Constitution.[/font] [indent] [indent]
[font "Arial"]The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.[/font]
[font "Arial"] Mich. Constitution, Art IV, ยง52.[/font][/indent][/indent]
[font "Arial"]The State is compelled to act to uphold and advance this constitutional provision.[/font]
[center][font "Arial"] [/font]
[/center] [center][font "Arial"][size 4]INTRODUCTION[/size][/font][/center][font "Arial"]
The State of Michigan is surrounded by four of the five Great Lakes--the world's largest freshwater lakes. These Great Lakes constitute 90% of the country's fresh surface water, and about 20% of the world's fresh surface water. The Great Lakes are resources of vital national importance; utilized for manufacturing, shipping, drinking, recreation, and tourism. Michigan has approximately 3,288 miles of Great Lakes coastline, more than 10,000 inland lakes and ponds and is interwoven by a 35,000-mile web of freshwater rivers, streams, and wetlands. Accordingly, Michigan has more boat registrations than any other state in the country. It comes then as no surprise that disputes arise between those who wish to utilize these waters and those who own private land through which these waters flow.
The following document is offered as a guide to how water rights came to be and the current state of the law. This information has been compiled for convenience in answering common questions regarding water law in the State of Michigan. This material highlights the evolution of court decisions and legislative enactments dealing with water and related legal issues. The manual discusses the court's role in defining and shaping Michigan water law. The "floating log test," the "recreation-boating test" and other terms pertinent to water law are discussed and defined. The text also provides an overview of the applicable statutes enacted by the Michigan Legislature. A list of common questions and their answers has been included to provide easily accessible information regarding situations of frequent interest and discussion. Michigan's waters support numerous activities and uses. It is therefore imperative to discuss these uses as they relate to and interact with areas of water law. Accordingly, not only water, but such ancillary issues as fishing, boating, hunting, trapping, ownership, access, development and their related rights are discussed in varying detail.
The field of water law is complex and develops periodically through both legislative and judicial action. This manual is not, nor is it meant to be, an exhaustive or conclusive evaluation of the issue. This material is designed to provide the reader with a working knowledge and understanding of this complicated yet interesting area of Michigan law.
This material was first compiled as Law Enforcement Division Report No. 9. The authors were Mr. Frank Opolka of the Law Enforcement Division and Mr. John F. Leone, a student intern from the Thomas M. Cooley Law School. Mr. Opolka is now retired. Mr. Leone is currently an Assistant Attorney General for the State of Michigan.
The material in this report related to the status of water law in Michigan was updated on December 1, 1993, through the diligent efforts of Stephen L. Madkour, Thomas M. Cooley Law School. The report was editorially updated in April, 1997.[/font]
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[/center] [center][font "Arial"][size 4]THE BIRTH AND HISTORICAL DEVELOPMENT OF WATER RIGHTS[/size][/font][/center]
[font "Arial"]Primitive man's existence was primarily dependent upon game and fish. From the beginning of recorded history, kings and sovereigns, being the strongest power in the land, owned the game and fish as they owned all property. They were their own enforcement agents in protecting their rights.[/font]
[font "Arial"]When William the Conqueror imposed his rule upon England in the year 1066, the concept that all property was vested in the king crossed the English Channel. In 1215, King John of England surrendered many of the kingly prerogatives to his barons and nobles. Present concepts of land ownership and property rights in game and fish have their beginnings in this action.[/font]
[font "Arial"]With the American Revolution, the colonies confiscated the English crown property and many crown grants. By the Acts of Confederation, the ownership of land was ceded to the Federal Government. Virginia, New York, Maryland and Connecticut had claims to lands of the Northwest Territory. Virginia's claim to the Michigan area seems to have been the strongest, which may explain frequent references in the record of territorial jurisprudence to Virginia procedure, and interpretation to the common law of England.[/font]
[font "Arial"]At the close of the Revolutionary War, certain crown grants, including a few from the King of France, were recognized and patents were issued by the Federal Government. Grants of land were made as military bounty warrants to soldiers and sailors. The United States later established a definite land policy and large areas were conveyed to colonizers. These new owners displaced the sovereign, however they did not acquire ownership of the game and fish which passed to the states.[/font]
[font "Arial"]Game and fish, being migratory in their habits, disregard property boundaries and pass over the lands of many owners. If all land were owned by the state, the problem would be simple.[/font]
[font "Arial"]The landowner is conceded to have exclusive rights in the taking of game, either by hunting or trapping, upon his or her own property and in open seasons. This right, being a property right originating in ownership of land, may be sold or transferred. Thus, one may own the land but sell the right to take game. A parallel is the sale of mineral rights by the landowner who may continue to occupy and use the land, while mining by others is in progress.[/font]
[center][font "Arial"][size 4]MICHIGAN'S HISTORICAL DEVELOPMENT[/size][/font][/center]
[font "Arial"]In Michigan, riparian owners on inland waters historically had title to the land under the water. It was, therefore, necessary to provide a legal avenue in which to convey rights to provide public fishing over private lands. The source of this right in Michigan is unique in that it is dependent in many instances upon the question of navigability of the water.[/font]
[font "Arial"]Under the English system, fishing rights could be a common right of all and also limited or restricted, as the privilege was acquired by prescription, grant or land ownership. Thus, the English common law does not govern the taking of fish as it governs the taking of game. Water is like air, owned by no one and yet owned by all. Therefore, no one can claim an exclusive right to take fish on the basis of water ownership. In Michigan, the right to take fish is shared by all, provided the water in which they are taken is public.[/font]
[font "Arial"]Under the law of this state, although the riparian owner on an inland lake or stream owns the soil under the water, he does not own the navigable water, and he does not own the fish. So far as they are capable of ownership, they belong to the state for the benefit of the people.[/font]
[font "Arial"]By judicial decision in 1860, the title to the beds of inland navigable waters, both lakes and streams, was declared to be in the riparian owners. The title, allowed to be taken by the riparian owners, was subordinate to public rights, including the public right of fishing. In contrast, the title to bottomlands of the Great Lakes is held in trust by the State of Michigan.[/font]
[font "Arial"]For purpose of clarification, a riparian owner is simply one who owns land or property abutting water. Actually, a riparian is one who owns land contiguous to a river or stream, and one who owns lands contiguous to a lake is properly called a littoral owner. But in common practice, both are referred to as riparians.[/font]
[font "Arial"]The question is often asked: How did the State of Michigan acquire the duty to hold the soil beneath navigable waters in trust for public use? Virginia ceded the Northwest Territory to the Federal Government. Michigan, which was carved from this territory, took title to the submerged lands limited to the grant by Virginia and the Ordinance of 1787. This ordinance, being one of the laws of the Northwest Territory, and still of binding force in Michigan, provided that "[t]he navigable waters leading into the Mississippi and the Saint Lawrence, and the carrying places between, shall be common highways, and forever free, . . . without any tax, impost, or duty therefor." Art. IV Northwest Ordinance 1787. Therefore, Michigan, upon admission to the Union, took title burdened with the aforesaid public trust.[/font]
[font "Arial"]Michigan, either by legislative enactment or judicial decision, could in turn, surrender title to its submerged lands. The State, by judicial fiat in the case of Lorman v Benson, 8 Mich. 18 (1860), retained title to the bed of the Great Lakes, but surrendered title of the submerged soil of inland navigable waters to riparian owners. However, this transfer of title could not unburden such submerged land from the public right of navigation, fishing, and related uses as the State of Michigan could not convey to a private individual more rights than it originally took. It is significant that the title, which the state took to all navigable waters, was burdened with the common law trust for the benefit of the public.[/font]
[font "Arial"] [/font] [center][font "Arial"][size 4]WHAT ARE PUBLIC WATERS?[/size][/font][/center] [center][font "Arial"][size 4]THE "FLOATING LOG" TEST AND KEY DEFINITIONS[/size][/font][/center]
[font "Arial"]It should be emphasized here that the terms "public" and "navigable" are synonymous; likewise are the terms "private" and "non-navigable." This is due to the fact that since 1787, prior to Michigan's admission to the Union, applicable law has stated as "public" all waters that are navigable and, as "private" all waters that are "non-navigable." Accordingly, the legal test used to determine "navigability" is the crux of the matter. The fact that a water is boatable, does not necessarily, in the opinion of the courts, make it navigable.[/font]
[font "Arial"]Public and private rights are controversial issues that have historically been determined by the courts. Michigan courts have repeatedly held that the public has rights in navigable water. These waters have been defined as any water which in its natural state is capable of and has been used for the purposes of commerce, travel and trade by the customary and ordinary modes of navigation. The floating of logs during the lumbering days was held to be an act of commerce. Consequently, any lake or stream used for this purpose would be considered navigable within the meaning of this term. Thus, the log floatation test has largely become the yardstick in Michigan to determine the "navigability" of a waterbody, that is, whether public or private.[/font]
[font "Arial"]Pursuant to the language of judicial decisions are the following key definitions:[/font]
[font "Arial"]A. Navigable Inland Lake:[/font]
[font "Arial"]A navigable inland lake is any lake which is accessible to the public via publicly-owned lands, waters or highways contiguous thereto, or via the bed of a navigable stream, and which is reasonably capable of supporting a beneficial public interest, such as navigation, fishing, hunting, swimming or other lawful purposes inherently belonging to the people. Bauman v Barendregt, 251 Mich. 67; 231 NW 67 (1930); Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Kerley v Wolfe, 349 Mich. 350; 84 NW2d 748 (1957). But, if the littoral landowners of a "dead end" lake object, there are no public rights. Bott v Natural Resources Commission, 415 Mich. 45; 327 NW2d 838 (1982).[/font]
[font "Arial"]In this state, natural waters have been divided into two classes: (1) the Great Lakes; and (2) inland waters. Titles and rights in the latter were declared in Rice v Ruddiman, 10 Mich. 125 (1862), and in Turner v Holland, 65 Mich. 453; 33 NW 283 (1887), to be governed by the same rules of law, whether they were rivers, lakes, or ponds, and whether the lakes were large or small.[/font]
[font "Arial"]B. Navigable Inland Stream:[/font]
[font "Arial"]A navigable inland stream is (1) any stream declared navigable by the Michigan Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States; (3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's. Moore v Sanborne, 2 Mich. 520 (1853); Thunder Bay River Booming Co. v Speechly, 31 Mich. 335 (1875); Stofflet v Estes, 104 Mich. 208; 62 NW 347 (1895); Cole v Dooley, 137 Mich. 419;100 NW 561 (1904); Sterling v Jackson, 69 Mich. 488; 37 NW 845 (1888); Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Rushton ex rel Hoffmaster v Taggart, 306 Mich. 432; 11 NW2d 193 (1943); Diana Shooting Club v Husting, 156 Wis. 261; 145 NW 816 (1914); Muench v Public Service Comm., 261 Wis. 492; 55 NW2d 514 (1952); Nekoosa-Edwards Paper Co. v Railroad Comm., 201 Wis. 40; 228 NW 631 (1930); Lamprey v Metcalf, 52 Minn. 181; 53 NW 1139 (1893); Kelley v Hallden, 51 Mich. App. 176; 214 NW2d 856 (1974).[/font]
[font "Arial"]Michigan's approach to the issue of defining navigability has progressed little in the 120 years since Moore, supra, the earliest and still most influential case, was decided. Navigable waters in this state have been divided into two classifications: (1) strictly navigable; and (2) floatable (the latter sometimes termed navigable in a limited or qualified sense). Strictly navigable waters are those capable of use for valuable boat or vessel navigation, i.e., public highways under English common law. Floatable waters, as in Moore, are those suitable, in their natural condition, for the floating of logs. Once it is established that a water is to be included in either classification, public rights attach.[/font]
[font "Arial"]The right to public use of navigable lakes and streams includes the right of trespass upon the submerged soil, but does not extend to the uplands of riparian owners while in such waters, or in entering or departing from them.[/font]
[font "Arial"]It follows, therefore, that the numerous citations supporting the test of navigability on rivers is also applicable to lakes. The determination of navigability and non-navigability is a civil process. [/font]
[font "Arial"]In a 1968 expression of the Michigan Supreme Court on the question of navigability, In re Martiny Lakes Project, 381 Mich. 180; 160 NW2d 909 (1968), the import of Justice Black's majority opinion stated that navigable waters are divided into two distinct classes; namely those navigable in a qualified sense and those unqualifiedly navigable. The court held that streams navigable in a qualified sense were "small streams which by common law belong to the public for the purpose of floatation and fishing" as compared to larger streams which are navigable in the more enlarged meaning of the term, unqualifiedly navigable, i.e., streams which in their natural condition are adapted to valuable boat or vessel navigation (vessels of 10 or more gross tons).[/font]
[font "Arial"]Many are
concerning the true interpretation of this decision. Justice Black was subjected to considerable unjustified abuse and criticism, but his rationale is deemed correct and in keeping with earlier court decisions, viz., Moore v Sanborne, Rushton ex rel Hoffmaster v Taggart, Collins v Gerhardt supra, and Giddings v Rogalewski, 192 Mich. 319; 158 NW 951 (1916).[/font] [font "Arial"]Some years ago, the United States District Court in Grand Rapids, in the celebrated Pine River, Osceola County case Ne-Bo-Shone Association, Inc. v Hogarth, 7 F. Supp. 885 (W.D. Mich. 1934), established a new precedent. Judge Raymond stated: [/font] [indent] [indent]
[font "Arial"]It is difficult to see why the right to navigate should include, as an incident thereto, the right to take fish. It is the view of this court that the right to take fish is not an incident of navigation, but a right arising from the fact that the waters, in which the right is claimed, are public waters. Both rights arise from the fact that the waters are public, not private. The rights coexist. Neither finds its source in the other.[/font][/indent][/indent]
[font "Arial"]This opinion may have forestalled many cases of dispute which otherwise would later have reached the courts. However, until this precedent is more firmly established, the rule requiring navigability, which has long been accepted, would seem to be the surest determination of the public or private character of a lake or stream.[/font]
[font "Arial"]Those watercourses located within Michigan which have been declared navigable by either the Michigan Supreme Court, United States Army Corp. of Engineers or through Legislative enactment are identified within the Appendix of this document. [/font]
[center][font "Arial"][size 4]THE BLURRED DEFINITION OF NAVIGABILITY[/size][/font][/center] [center][font "Arial"][size 4]THE RISE AND FALL OF THE RECREATIONAL USE TEST[/size][/font][/center]
[font "Arial"]The greatest controversy today in defining "navigability" is whether recreational uses should be a determining factor. Unfortunately, Michigan courts have rendered sundry and often diverse rulings defining navigability. The Department of Natural Resources (DNR) is uniquely interested in the definition as the DNR is often the object of the public's inquires regarding the navigable status of variable lakes and rivers. For more than a century the test for navigability has been--and remains--the log floatation/commercial use test. However, recent cases have concluded that, today, public recreation has greatly displaced commercial uses. Therefore, the argument goes, for the waterways to best serve the public--as is the historical intent of the law--recreational uses should be considered in the determination of navigability.[/font]
[font "Arial"]The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability. The Court affirmed a trial court's judgment enjoining landowners from interfering with the passage of boaters and waders on the St. Joseph River.[/font]
[font "Arial"]The question before the court was whether the St. Joseph River is navigable where it flows through defendant's property. The landowners argued that, since no evidence was submitted that the river section in question was ever used for commercial transportation or log floating, the river was not navigable at that point. The State contended that recreational uses alone can support a finding of navigability.[/font]
[font "Arial"]The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra.[/font]
[font "Arial"]The court did not dwell on the distinction between strictly navigable and floatable streams, recognized in Moore, but stated that once it was established that a stream is found to be included in either classification, public fishing rights attach. Notwithstanding that the public's right to fish in the river was not established in the trial court, nor was evidence submitted by which the court could find the river to be navigable in either a limited or strict sense, the court held that recreational uses alone could support a finding of navigability.[/font]
[font "Arial"]The broad underlying principle of Moore--that a watercourse's navigability is a function of its public usefulness and value--convinced the court that the Michigan definition of "navigable waters" must be expanded to include those waters which are suitable for public recreational use.[/font]
[font "Arial"]The Michigan Court of Appeals concluded by stating: "We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft." Hallden at 181. "Capable of being navigated by oar" is deemed to include navigation by canoe as well as by rowboat.[/font]
[font "Arial"]Had it not been subsequently overruled, Kelley v Hallden would have established a landmark decision in the annals of navigability litigation in Michigan. But in 1982 Hallden was overruled by the Michigan Supreme Court in a trio of cases. The Supreme Court rejected the recreational-boating test and cited "the need for a comprehensive legislative solution."[/font]
[font "Arial"]Bott v Natural Resources Commission, Nicholas v McDaniel, and Attorney General ex rel Department of Natural Resources v Nicholas, 415 Mich. 45 (1982) were heard together and argued before the Supreme Court in January of 1980. It was almost three years before an opinion was issued on December 8, 1982. The Bott trio is, today, the controlling legal decision on navigability in the State of Michigan.[/font]
[font "Arial"]In the Bott case, the Supreme Court forwarded three main premises:[/font]
[font "Arial"]1. Changes in property law should be avoided whenever possible. Countless acres have been purchased and great expenditures have gone to improve properties in reliance upon property rules of law "fully established" and maintained for over sixty years.[/font]
[font "Arial"]2. Adopting a recreational use test would result in no "significant" addition of waterways subject to public use but would subject certain otherwise private waters not only to the "quiet" sport of fishing but also the "intrusive and jarring" activity of boating and water recreation. Bott at 66. These activities may render the property unfit for the private landowners use as a refuge and retreat as well as decrease the private character of the property and thus its commercial value. Such an imbalance of public benefit and private burden amounts to a taking by the State without just compensation, especially in light of the long enforced property laws that have induced the extensive reliance of these otherwise private riparian landowners.[/font]
[font "Arial"]3. "The importance that society attaches to the various public values, like the importance society attaches to the need for expanded recreational uses, cannot be gauged by this court with accuracy." Id. at 74. "Faced with an uncertain societal consensus, an inability to compensate riparian owners for the loss of a valuable right, and the need for a comprehensive legislative solution, we believe that this court is not an appropriate forum for resolving the competing societal values which underlie this controversy." Id. at 86. In essence, the Supreme Court extended an express request of the Legislature to resolve the controversy over the definition of the term "navigability."[/font]
[font "Arial"]Thus, the recreational use test adopted in Kelley v Hallden has been overruled by the Bott cases and the commercial use/log floatation test continues as the controlling legal test of navigability.[/font] [center][font "Arial"] [/font]
[/center] [center][font "Arial"][size 4]THE PROBLEM (AND SOLUTION) AS VIEWED BY THE DEPARTMENT OF NATURAL RESOURCES[/size][/font][/center]
[font "Arial"]There is presently a great deal of uncertainty regarding the public or private character of most of the State's streams, particularly the smaller streams. This is due to the fact that the old, but current, test by which streams are established as public (the floatability of logs) is fast becoming unprovable. The old rivermen are gone and can no longer testify that these streams were so used. Although the public need that created this public right may have been floatation of logs, a different need has arisen over the past sixty years. There should now be written into the law a means of determining the public/private character of a stream without need for judicial determination every time a dispute or the need to make an administrative ruling arises.[/font]
[font "Arial"]A statutory determination of a "navigable stream" is urgently needed to clarify the fishing, boating and recreational rights of the public, as well as provide criteria of navigability, and direction to state agencies in the implementation of existing laws and regulations. The State and the Michigan public believe it is needed.[/font]
[font "Arial"]The public or private status of a stream to date has been determined only by judicial action. Streams where such determinations have been made represent only an infinitesimal number of the state's total streams. No state agency can, under present conditions, satisfactorily respond to public inquiry as to their rights pertaining to streams, except in the limited instances where litigation has resulted in Supreme Court decisions declaring the stream public or private. Most of this problem could be resolved through legislative actions.[/font]
[font "Arial"]Enactment of a statutory definition would augment both 1994 PA 451, Part 315, Dam Safety, MCL 324.31501 et seq; and 1994 PA 451, Part 301, Inland Lakes and Streams, MCL 324.30101 et seq; and: (1) preclude costly and time-consuming litigation to ascertain the public or private character of streams; (2) expedite control of unauthorized dams, dredgings and diversions which (a) despoil stream habitat and fishing by raising water temperatures and siltation, (b) block migration of spawning fish, © deny lawful passage to wading and boating fishermen, and (d) diminish the quality and quantity of water delivered to downstream riparians; (3) permit ready removal of fences across navigable streams intended to prevent fishing access; (4) clarify and permit dissemination to the public, upon inquiry, a listing of those streams in which they have the right of fishing and boating; and (5) last, but not least, clarify, and thus protect, the vested property rights of landowners in non-navigable streams of which their control is now uncertain due to absence of adequate standards.[/font]
[center][font "Arial"][size 4]WHAT HAS BEEN DONE BY THE DEPARTMENT OF NATURAL RESOURCES?[/size][/font][/center]
[font "Arial"] In 1969, the DNR proposed legislation to statutorily define a navigable stream. The bill, H.B. 2377, was introduced by Representatives Snyder, Anderson, Smit, et al. The bill as amended in the Committee on Marine Affairs read:[/font] [indent] [indent]
[font "Arial"][size 2]WHENEVER THE PHRASE "NAVIGABLE STREAM" OR "PUBLIC STREAM" IS USED IN ANY EXISTING OR FUTURE STATUTE, THE TERM SHALL MEAN ANY WATERCOURSE WHICH IS NOW OR HAS IN THE PAST PROVIDED, OR IS CAPABLE OF EITHER OF THE FOLLOWING:[/size][/font] [indent]
[font "Arial"][size 2](A) TRANSPORTING ANY BOAT, CANOE OR CRAFT OF ANY KIND FOR ANY PURPOSE WITH 1 OR MORE PERSONS ABOARD,[/size][/font]
[font "Arial"][size 2](B) FLOATING OR TRANSPORTING LOGS,[/size][/font]
[font "Arial"][size 2]© PROVIDING A PUBLIC FISHERY WHEN THE EXERCISE OF SUCH IS ACCOMPLISHED WITHOUT TRESPASS UPON THE UPLANDS OR RIPARIAN OWNERS.[/size][/font][/indent][/indent][/indent]
[font "Arial"][size 2]A WATERCOURSE, OTHERWISE NAVIGABLE OR PUBLIC, SHALL NOT BE BARRED FROM THIS CLASSIFICATION NOTWITHSTANDING THERE MAY BE NATURAL OR ARTIFICIAL OBSTRUCTIONS WITHIN ITS REACHES WHICH NECESSITATE PORTAGES AROUND SUCH OBSTRUCTIONS.[/size][/font]
[font "Arial"]The bill passed the House on June 12, 1969, with only 5 dissenting votes. The bill, however, died in the Senate Committee on Conservation where it met opposition from certain private interest groups. The definition was deemed reasonable and included within its purview only those streams which have the natural qualities to be of capacity for beneficial public service and, therefore, navigable and subject to the state's paramount public trust.[/font]
[font "Arial"]Our reasons for deeming the DNR proposed definition as reasonable, constitutional and not offensive to those vested rights which riparians have in non-navigable streams:[/font]
[font "Arial"]The following arguments support definitions (A), (B) and ©, respectively, of our proposed definition.[/font]
[font "Arial"](A) The Ordinance of 1787 is part of the law of the state because it was specifically incorporated into the laws of the state when the state was established and because it constituted a compact between the territory and outside jurisdictions that even statehood could not destroy.[/font]
[font "Arial"]Article IV of the Ordinance of 1787 provides:[/font]
[font "Arial"]"The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, . . . ."[/font]
[font "Arial"]It was framed without regard to the common law rule as to what constituted navigable waters and designed to extend over all streams capable of being used for any purpose of public utility. Moore v Sanborne, Lorman v Benson, supra, and Tyler v People, 8 Mich. 319 (1860).[/font]
[font "Arial"]It applied not only to ship and vessel navigation, but more generally to the passage of canoes and bateaux, which were then the chief means of conveyance. Moore v Sanborne, Lorman v Benson, supra; Burroughs v Whitwan, 59 Mich. 279; 26 NW 491 (1886); City of Grand Rapids v Powers, 89 Mich. 94; 50 NW 661 (1891).[/font]
[font "Arial"]The Ordinance of 1787 included with "navigable waters," portages or carrying places connecting navigable waters that were used by parties making long voyages in small boats by passing from river to river. Lorman v Benson, supra. But it did not dignify as a navigable water every little rill or brook whose waters finally reached the Mississippi or the St. Lawrence. This definition would allow recreational uses alone to support a finding of navigability.[/font]
[font "Arial"](B) The Michigan doctrine of navigability was developed by the Supreme Court 120 years ago in Moore v Sanborne, supra. In that case, the court adopted a rule of "capacity for use to meet public necessity" as the true test of a stream's navigable status, and declared navigable a small stream having a "limited capacity for floatage." The rules and principles of the Sanborne case have been adopted and followed by the Supreme Court in subsequent cases.[/font]
[font "Arial"]The question of whether the public should be entitled to travel upon any given stream should consider relevant the question of whether the stream in its natural condition is able to transport a log, or is capable of sustaining travel by a customary mode of water transportation. The ability of a stream to transport a log was and should now be one of the yardsticks by which the character of a stream, whether public or private, is measured. Such streams were essentially our major highways, which no one had a right to block. They were streams that the people normally regarded as public and expected to be open to travel and other uses. This public expectation is still valid today and should be protected.[/font]
[font "Arial"]© In Rushton ex rel Hoffmaster v Taggart, supra, the Supreme Court ruled the South Branch of the Pere Marquette River as navigable, and accepted the trial court's statement describing the nature of the stream: [/font] [indent] [indent]
[f