East Bay Sporting Club v. Miller

[537] • ■ This was an action commenced by the East Bay Sporting Club against A. E. Miller and Charles Schwank.; Plaintiff seeks to enjoin defendants from trespassing and fishing upon lands which plaintiff claims to own. On error to the Court of Common Pleas, the Court of Appeals held that the water which covers this land is navigable water for the reason that it arises and falls with the waters of Sandusky Bay and Lake Erie. That the defendants’ contention that the waters upon which they were fishing are a part of San-dusky Bay, and that they,, in common with the public have the right to go there for that purpose, was well taken; and that plaintiff’s contention that all of the land in question, which lies easterly of a line which, in an agreement between the Pirelands Co. and the Connecticut Land Co., was established as the westerly line of Sandusky Bay, was riot well taken for the reason that the question of what constitutes Sandusky Bay is one of fact and law, and not for agreement between owners of adjacent lands. (For report of this case in the Court of Appeals see OA. 5 Abs. 298.) The plaintiff herein is now asking that the Court of Appeals be required to certify its record and contends as follows:— That the case of the West Huron Sporting Club v. Teasel, decided by the Circuit Court and affirmed by the Supreme Court in 70 OS. 502, and the case of West Huron Sporting Club v. Stroud, et, 78 OS. 445, established property rights, and that the decision of the Court of Appeals- in the instant case, constitutes the taking of private property for public use without just compensation, in contravention of Sec. 19, Article 1, of the Constitution of Ohio and of Article 5 of the Constitution of the United States. That the agreement of Feb. 6, 1806, between the. Sufferers Co., or Firelands Co. (as it was sometimes called) and the Connecticut Land Co. determines the west line of the property in question, to be the eastern boundary of San-dusky Bay; and that all land east of this line, including the waters and marshes, were sold as land, and are not a. part of Sandusky Bay. That this question was adjudicated more than 25'years ago, and that relying on this decision, plaintiff has made valuable and lasting improvements upon this land. That the ownership of land under waters of marshes, ponds, rivers, etc., carries with it the exclusive right of hunting and fishing and all other property rights subject only to the easement of. navigation. Gavit v. Chambers, 3 Ohio, 496; Walker v. Public Works, 16 Ohio 540; Lamb v. Rickets, 11 Ohio 311; June v. Purcell, 36 OS. 396. ; That the, rule of property which gives the owner the exclusive right of fishing in the rivers, marshes, etc., adjoining Sandusky Bay, has been repeatedly approved by this court. That the case of Winous Point Shooting Club v. Slaughterbeck, 96 OS. 139, is not in conflict with the instant case, for the reason that the defendant therein did not contend that he had a righ to fish in the creeks, marshes, etc., adjoining Sandusky Bay, but only in the open waters on the Bay itself. ' That - there are no navigable waters upon the.premises of plaintiff.- ■ That, the- greatest depth of water in one of the. streains in ques,tion, is not to: exceed three feet, -and .in-;: another stream does not exceed five, feet, and that the land is merely marsh land-and -subject-..to private ownership. Baldwin v. Erie Shooting Club, 127 Mich. 659. T,hat the case of Pollock v. Shipbuilding Co., 56 OS. 668, statesth'ditthe term “easement-of navigation”-'should not be construed in any narrow, scientific serisefbut that the reservation of the easement by, .the state is for the benefit-of the publie iri'-itS'use of the highway and should receive a construction in harmony with- the' nature of the uses of the water by the public, and the object of a public nature to be accomplished--by such -rise's'. That the cdnamon law rule''of tide- waters does not apply in Ohio. State v. Railway Co., 21 CC. (N. S.) 1; Toledo Liberal Shooting Club Co. v. The Erie Shooting Club, 90 Fed. 680. That all rivers, creeks, channels, etc., connected with Lake Erie and Sandusky Bay rise and fall with the waters; of said lake and bay, but that the lands under tliese rivers, creeks, etc., are subject to' private ownership, and the owner has. exclusive rights thereon .subject to the public right of navigation iri the navigable water. Gavit v. Chambers, 3 Ohio 396; June v. Purcell, 36 OS. 396; Day v. Railway Co., 44 OS. 406-419; State v. Shannon, 36 OS. 428; Lembeck v. Nye, 47 OS. 336; Bodi v. Winous Point Shooting Club, 57 OS. 226.