People ex rel. Bird v. Grand Rapids-Muskegon Power Co.

Ostrander, J. (after stating the facts). It is the rule in this State, sustained by an unbroken line of decisions, that one who owns land bordering a stream, whether navigable or not, owns the bed of the stream to the center or the thread thereof. Such ownership is private ; such public rights as exist are simply easements, or privileges, and, as a general proposition, it is settled that the owner may do what he pleases with the land under the water so long as he does not interfere with the public enjoyment. In the opinion of this court in City of Grand Rapids v. Powers, 89 Mich. 94 (50 N. W. 661, 14 L. R. A. 498, 28 Am. St. Rep. 276), will be found references to most of the decisions of this court upon this subject to that time. It is unnecessary to refer to them here. This rule of the State is the rule of the Federal courts with respect to waters within this State. Grand Rapids, etc., R. Co. v. Butler, 159 U. S. 87 (15 Sup. Ct. 991); United States v. Water Power Co., 209 U. S. 447 (28 Sup. Ct. 579). In Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209), this court follows and approves the rule stated in Brown v. Chadbourne, 31 Me. 9 (50 Am. Dec. 641), that the true test of navigability— “ To be applied in such cases is, whether a stream is inherently and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs. When a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it.” The constitutional provision in force when authority to erect the dams was given reads: “No navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county under the provisions of — 126 — law. No such law shall prejudice the right of individuals to the free navigation of such streams, or preclude the State from the further improvement of the navigation of such streams.” Const. of 1850 [Sec. 14, Art. 8, Const. of 1909], Art. 18, § 4. It was said in Shepard v. Gates, 50 Mich. 495, 497 (15 N. W. 878, 879): “ The clause in the Constitution providing that ‘ no navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county, under the provisions of law,’ has been understood as adopted in furtherance of the policy of the Ordinance of 1787, which stipulated that ‘the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free.’ ” The legislation in force when such authority was given is found in 1 Comp. Laws, §§ 2494, 2495. In terms, power is given to boards of supervisors to permit or prohibit the construction of any dam over or across any navigable stream. It is required that a petition for leave to construct a dam across any such stream shall be presented to the supervisors which shall set forth certain matters and the board is empowered to “grant or refuse the prayer of such petition.” If they— “Allow the said dam to be constructed, the petitioners shall be at liberty to construct the same by complying fully with the terms and conditions set forth in their petition; and after having obtained such right, and constructed such dam, such petitioners, their heirs, successors, or assignees, may, if such dam be destroyed, or decayed, construct a new dam, subject to all the same terms and conditions, on the same site, without again applying to such board.” The matters which are required to be stated in the petition are the purpose, location, height, and description of such dam, and whether it is proposed to construct a lock, or chute, or apron, and of what description, for the passage of boats, vessels, rafts, or timber. Reading these provisions together, and considering also the rule of private — 127 — property in the bed of streams, they amount to a legislative construction of the Constitution in harmony with the idea that what was intended to be preserved and conserved was the public right of navigation in the streams of the State. It is therefore apparent that the power of boards of supervisors in the premises is limited both by the purpose for which the power is delegated and by the legislation which the Constitution itself makes necessary. They do not act as agents for the county, but as agents of the general public. And if it is assumed that, in view of the constitutional provision, the legislature has not the power to determine the circumstances and conditions according to which the supervisors shall give or withhold assent to the building of dams, it must still be admitted that the circumstances and conditions to be considered by the supervisors in each case are such as relate to the public easement in the stream which it is desired to dam. In fact, as an examination of the statute will disclose, and as is in keeping with the public interest involved, the powers conferred upon supervisors with respect to bridges are very different from those conferred with respect to dams. It is only with respect to streams actually or strictly navigable that permission to bridge is required at all. As to other streams, although navigable for certain purposes, as for floatage, the power conferred is one to make general rules and regulations as to the kind of bridges and the mode of constructing the same. See Shepard v. Gates, supra; Stofflet v. Estes, 104 Mich. 208 (62 N. W. 347). As to dams, as has been stated, the petition for leave to construct must set out certain facts, and the supervisors, and they are by the act given no other power, “ may grant or refuse the prayer of such petition.” It is not pretended that each of the structures described in the petition which was presented to the supervisors of Mecosta county was not calculated to preserve and conserve all public rights in the stream. It is not claimed that the single dam which was erected interferes in any way, in fact, with the, public easement, or with such use — 128 — of the stream by the public, for navigation or otherwise, as the nature of the stream will permit. It is not claimed that with respect to preserving or safeguarding any public interest one of the proposed dams bore to any other of them the relation of a part to a whole; that the scheme or plan considered by the supervisors was a single one consisting of three dams. In this respect the case is unlike the one of People v. Improvement Co., 108 Ill. 491, cited by the attorney general. Without attempting here to set out the facts of the case, it is sufficient to say that the essence of the decision rendered, the theory according to which the court acted in sustaining the demurrer to respondent’s plea, is expressed in the opinion of the court at page 510 of People v. Improvement Co., supra, where it is said: “Had there been but the omission of some duty of minor importance, the alternative of a fine, might properly be considered; but the nonperformance here is of a thing which is of the essence of the contract — it goes to the object of the incorporation, not doing the very thing the performance of which was the purpose and object for which the company was instituted. It is failure by the corporation to act up to the end of its creation. The demand of public good is nothing less than that there should be a resumption by the State of the corporate franchise of which there has been such misuser — that the company should be made to give way, so as to afford opportunity, through some other instrumentality, for the accomplishment of this work of public advantage, the improvement of the navigation of these two rivers, or at least of the Kankakee, to the Indiana State line.” There is no reason to believe that authority would not have been given to erect any one of the dams if the petitioner so desired. Forfeiture cannot therefore be justified upon the authority of cases which hold that when a franchise is granted to build a railroad, a waterworks plant, or to make any single, indivisible, public improvement, and there is a failure to complete the work, the franchise may be reclaimed by the State. If we construe the grant, condition, and all as made with reference to the — 129 — private rights of the petitioner and the public easement in the stream, we must find it to be either a divisible grant, a grant of three distinct privileges in one resolution, or else it must be held that .the condition providing for forfeiture was one which the board had no power to impose. Prom the standpoint of the public right of navigation in the particular stream, at the particular time, the conservation of that right was three times involved. That is to say, three dams would interfere with it, if at all, three times as much as one dam. And when it was determined that they were warranted in permitting such dams at such locations to be constructed, and that they should exercise the power which they held in trust for the public favorably to the petitioner, the supervisors had exhausted their power unless there remained the power to limit the time within which each of the privileges should be exercised. If this is not so, if their authority in the premises is not to be exercised within the limits set by the public interest to be served and the express language of the statute, what limit can be . stated to their power to attach conditions to a grant of authority in such cases ? The attorney general directs attention to the fact that the second petition of Erwin contains the forfeiture clause which is relied upon, the implication being that the supervisors at last granted the prayer of the petition, which is what the statute indicates they shall do, if favorably inclined. I think the fact is of no significance as affecting the question of right. The second resolution of the board in the preamble states that Erwin has applied to have the former "grant of the right to construct certain dams * * * amended as in said petition specified.” The amended application asks that the grant of the right theretofore made “be so amended as to read as follows,” setting out the resolution of the board already of record with a slight change as to the dimensions of log chutes. And in the second resolution no change is made in the time for beginning work upon the dams, although more — 130 — than a year of the time had then expired and two years had elapsed since the passing of the first resolution. The action of the board amounted to an amendment merely of a privilege already granted. It must be admitted that the language employed in the condition supports the construction which is placed upon it by the attorney general. As mere matter of construction, it would be difficult to sustain the contention that a forfeiture of all rights granted by the resolution was not contemplated if any breach of the condition occurred. According to its terms, the privilege or privileges ceased and became void if work was not begun on one dam— not specified — before April 1, 1905, or if it was not begun on another dam — not specified — before April 1, 1907, or if not begun on the third dam before April 1, 1908, and if the three dams were not completed on or before April 1, 1909. Such a penalty bears no reasonable relation to the purpose to be served in requiring the authority of the board, even if it had the power to impose a penalty, and no court ought to impose it unless the public interest clearly demanded its enforcement. If the grantee of the privilege proceeded in exact accordance with the terms of the condition, he increased thereby the disastrous consequences of failure. But, as has been stated, the board of supervisors had no authority to impose the forfeiture, and the grant must stand without the limitations created by the condition attached unless it is held to have the effect only of limiting the time within which each privilege must be exercised. There are some considerations tending to show that the apparently unconscionable character of the condition is only apparent, and not real. These considerations will be mentioned, although their statement involves repeating to some extent what has already been said. The situation disclosed must not be confused with one where the public, as the United States, owns the land bordering upon and under the stream, having, in the land and the stream, all the rights possessed in this State by the public and by the private owner. Nor is it a case where the- franchise or — 131 — privilege in question is a corporate franchise. Whether what is granted by a board of supervisors to one who is given authority to build a dam is called “a franchise emanating from the State,” as it was denominated in Valentine v. Water-Power Co., 128 Mich. 280, 290 (87 N. W. 370), or whether it is called a permission or privilege, it is a peculiar thing. The public interest in the matter, so far as any such interest was contemplated by the Constitution of 1850, arose out of the public easement to navigate the stream. With respect to this easement, it could never be matter of public concern that a man should build three dams in a stream instead of one, unless the purpose was to improve instead of to interfere with navigation, which is not the case here. Having the right to build three dams in a stream, and building but one, the grantee offends against no public right if he declines to build two of them. Prom the viewpoint,of the Constitution of 1850 and the statute, the private privilege to dam is against the public privilege to navigate the stream, the preservation of which public privilege gave rise to the necessity for withholding the private right in proper cases. It is therefore difficult to see a reason for attaching to the privilege to build one dam the condition that two other unrelated dams should be built. Again, the franchise or privilege to build a dam, when •once granted, is exercised when the dam is constructed. There can be neither misuser nor nonuser of the privilege derived from the supervisors if the dam is constructed as contemplated. And in asking for and receiving a grant of such a privilege, or franchise, no duty rests upon the petitioner to exercise the privilege. There were no contract relations created between Mr. Erwin and the supervisors. Nor, as has been pointed out, could the supervisors contract with him to build three or any number of dams. The privilege granted was no doubt a beneficial thing to the grantee, but in the discharge of their duty in the premises the supervisors, in approving the location and construction of each dam, preserved to — 132 — the public its entire beneficial interest. On the other hand, there is reason for a condition fixing a time within which the grantee of the privilege should proceed to exercise it. The consequences of a judgment of ouster will be a forfeiture of respondent’s right to defend the lawful', character of its dam, with whatever results may flow from that. Such a judgment must be rested upon the ground that respondent, in accepting the privilege to build the dam, accepted it upon a condition which the granting' power had no authority to impose and which secures in its enforcement no public benefit or advantage. There is-made out neither nonuser nor misuser of any franchise or privilege granted by the public. The duty of the court to enter a judgment for the respondent is clear. It is so ordered. Respondent will recover costs. Hooker, McAlvay, and Stone, JJ., concurred with Ostrander, J. Blair, J., concurred in the result.