Gambar halaman
PDF
ePub

*

[merged small][ocr errors]

would have justified a jury in coming to a different iu Canada," the judge shall commit the fugitive, conclusion.

etc. This action of the judge was contrary to every pre- The “second schedule" bears the following heading, cedent, but it is enough to cite the rds of the court viz. : “The following list of crimes is to be construed in another extradition case in Canada. “In cases aris according to the law existing in Canada at the date of ing under this Extradition Treaty if the evidence pre- the alleged crime whether by common law or by statsents several views on any one of which there may be ute made before or after the passing of this act;" and a conviction, if adopted by the jury, the court will in the list of crimes is specified, "forgery, counternot discharge the prisoner but will direct extradition. feiting or altering, or uttering what is forged, counterQueen v. Gould, 20 C. P. 154.

feited or altered. * * Any offense under the But Judge Canon supported his opinion by such act passed in said year (1869), entitled, “ An Act rereasoning asochis: “ Les directeurs de la banque ont au specting forgery,'' etc. reste payé ce cheque uprès l'avoir examinê, l'on doit Here therefore is an express enactment of a governnaturellement presumer que ce n'est qu'après avoir été ment possessing full power over the matter, directing convaincus qu'il était exact a tous egards;" the truth that a fugitive shall be held for extradition when it being in evidence undisputed, that the directors ab- appears that the crime, if committed in Canada, would solutely refused to have the check paid by the bank, have been one of those mentioned in a certain schedor to have any thing to do with it; that the bank ex- ule or list of crimes; and that the crime is to be conaminer then threatened to close the bank unless some strued, not according to the English law as it existed body took care of this check, and it was then that Mr. at the time of the treaty, but according to the law exEno, Sr., and Mr. Phelps guaranteed that they would isting in Canada when the crime was committed, and • take care of the check and pay in the amount of it to whether then existing at common law or by statute. the bank.

The case thon presented to the judge in the Eno mat. This point was regarded by Mr. Justice Caron, the ter was not confined to determining whether a commagistrate who heard this case, as of considerable im- mon-law forgery had been committed, but whether portance, for in his decision discharging Eno he says: one of the offenses named in the second schedule had "Şi elle (the prosecution) avait raison quant à ce fait, been committed, that is, an extradition crime. And dont il est facile de concevoir tout l'importance, puisque if it were denied that the act intended to allow extrasi ce cheque avait été signe par l'accusé comme president, dition to the United States of one who had committed après sa resignation, ce serait un faux (forgery) à n'en an offense 'named in the schedule but not named in pas douter, j'adopterais sans le moindre hesitation les the Ashburton treaty, although there is nothing in conclusions de la poursuite.

the act indicating such a limitation, still as to every But the main contention of the prosecution, which offense falling, or claimed to fall, under any one of the applied also to this indictment, though with more general crimes named in the treaty, this act expressly force to the others, was one in view of which the effort declares what shall constitute such offense. That is to extradite Eno was mainly undertaken by the dis- to say, the act declares that the “forgery" for which trict attorney. It was a new proposition, never passed extradition shall be granted is whatever act or acts upon by the courts, but regarded by lawyers of emi- are made“ forgery” according to Canadian laws in nence in Canada and in this State as sound.

force at the time the act is committed. There is no It is to be assumed in the first place that the execu

lack of judicial authority in support of the principle tive government of Canada has now, and has always contended for; in the case of Phipps, on a demand had, the power to deliver up to a foreign State a fugi- froin the United States for extradition (Ont. App. tive charged with having committed a crime in the 617), Mr. Justice Armour says: “In framing the jurisdiction of the latter; and this, independent of treaty (Ashburton's) the parties to it were not providany treaty made or statute enacted by the Imperial ing for the past and present but for the future; and I government, though not of course in contravention of do not think that the treaty should be construed as rean existing statute.

ferring only to what was understood to be forgery at It was so beld In re Fisher (1827), S. L. C. A. 245, be- the date of the treaty, but that under the general fore either the Jay or Ashburton treaties were in term forgery, every thing was included which was in force (see Clark's Crim. Law of Canada, 24); and this the nature of forgery, and which thereafter might be right is expressly asserted by the preamble to the held to be forgery at common law by the decisions of Canadian Extradition Aot.

the courts, or might be declared to be forgery by the It has become familiar to every one interested in statute law." **this subject, that in England there exist since 1870 acts This entirely explodes our newspaper law, founded of Parliament known as the Extradition Acts, which upon the reading of one case like In re Windsor, that by their terms applied at one time to the Colonies ; extradition, from Canada at least, must be for a crime provision was made however for the suspension all of whose elements and limitations were fixed at of these acts in the Euglish Colonies upoll the time of the treaty. If that ever were the law, it is the enactment of Extradition Acts of their own. pow ancient history as to the question under discusIn 1877 the present Canadian Extradition Act was sion, for the Windsor case was decided some years bepassed and the English Atos are no longer operative fore the English Extradition Acts of 1870, and 1873, in Canada (Reg. v. Young, 9 L. C. J. 29), so that at the which it would seem have declared the same rule to present time the Ashburton treaty and the Canadian obtain in England that is claimed by the prosecution Extradition Act together constitute the law of extra- to exist in Canada. By the English Act of 1870 it is dition in Canada.

provided that the “extradition crime” shall be one By section 1 of this act it is provided, “that the of the offenses mentioned in the schedule to that act term 'Extradition Crime' may mean any crime, / (section 26); and that if the evidence would, “accordwhich if committed in Canada * would being to the law of England," which means the present one of the crimes described in the second schedule of existing law of England, justify the committal of the this act;” and by section 13,“ in the case of a fugitive accused if the crime had been committed in England, accused of an extradition crime, if such evidence is then the accused may be extradited (section 19); the produced as would, according to the law of Canada, schedule to this act specifies the offense in question as subject to the provisions of this act, justify his com- “ forgery,” altering, etc. 33 and 34 Vict., ch. 52. mittal for trial, in case the crime had been committed But by the amending act of 1873 (36 and 37 Vict., ch.

[ocr errors][ocr errors]

*

*

[ocr errors][ocr errors]

27.

60), it is provided that the act of 1870 “shall be con- dicted for forgery in indorsing a bill “per procura-
strued as if there were included in the first schedule tion" without authority, but after much argument
to that act the list of crimes contained in the schedule the judges declared this was not forgery. Of this sec-
to this act; and in the latter schedule is included “any tion Greaves says (2 Russ. on Crimes, 941, n.): "This
indictable offense under * * chapter 98 (24 & clause is new, anfas framed in order to make per-
25 Vict.), to consolidate and amend the statute law of sons punishable who without authority make, accept
England and Ireland relatiug to indictable offenses by or indorse bills or notes “per procuration, which was
forgery, or any act amending or substituted for the not forgery uuder the former enactments."
game which is not included in the first schedule of the In view therefore of the dision of opinion and the
principal act" (1870). Chapter 98 of 24 and 25 Vict. is uncertainty of the law at the time of Regina v. White,
one of the “five consolidated acts of 1861;" and of all and of the enactment of this section 24 to declare the
this Mr. Justice Stephen in the chapter on Extradition law or to remove this uncertainty; in view of the en-
in his History of the Criminal Law (vol. 1, p. 68) says: actment of this section in section 27 of the Canadian
“Forgery at common law would be included in the act, and of the declarations of the titles, subtitles and
schedule to the act of 1870, though it is not within the preambles of both the English and Canadian Forgery
forgery act of 1861 (chapter 98, supra). If as is proba- Acts; in view also of the construction put upon this
bly the case there are any statutory forgeries subse- section by Greaves and by Mr. Justice Fitzjames
quent to the Forgery Act they also would be included Stephens, supra, it was fairly to be concluded by the
in the words of the schedule of the act of 1870."

district attorney, and he was advised by learned coun-
It may be added that reported cases arising upon sel in Canada, that the offense described in section 27
demand for extradition from the United States can- was, under the laws of Canada, statutory forgery.
not be urged against this interpretation of the Cana- Although the Penal Code of New York does not use
dian and Fuglish extradition acts, because our statute the words “ per procuration," its sections respecting
on this subject (5 5270, U. S. Rev. Stat.) expressly pro- forgery declare the same acts to be forgery as are cov-
vides that the accused may be held if our magistrate ered by this section 27.
“deems the evidence sufficient to sustain the charge It may be observed again in this connection, that
under the provisions of the proper treaty."

both the English and Canadian Extradition Acts, by Such being the conclusions of those charged with the their respective schedules, besides specifying “forg. prosecution of the offenses committed by Eno, and it ery” as an extradition crime, also specify any ofbeing regarded as unwise to rest the demand for his fenge under the act passed, etc., etc., entitled “An act extradition simply on a charge of larceny or embezzle- respecting forgery,” etc., which in the Canadian act ment, or for any offense not specified in general terms includes of course the forgery described in this section in the Ashburton treaty, an examination of the laws of Canada revealed the fact that certain transactions Under this interpretation of the laws of Canada and of Euo were made indictable offenses under the Do

New York certain of the indictments found by the minion Forgery Act; they were likewise indictable as grand jury against Eno were so drawn as to set forth forgery under the provisions of our Penal Code.

the crime of forgery in every phase under the statutes This act (32-33 Vict., ch. 19) is entitled "An Act Re- of either country, that is, in these indictments forgspecting Forgery;" and by its preamble declares: ery was well pleaded, whether it were that forgery de“Whereas, it is expedient to assimilate, amend and scribed by section 27 of the Consolidated Forgery Act consolidate the statute law of the several provinces of or by our Penal Code; and this was done with the exQuebec, Ontario and Nova Scotia and New Bruns

press purpose of raisiug and sustaining the proposition wick respecting indictable offenses by forgery, and to indicated above, that when both couv tries have in ex. extend the same as so consolidated to all Canada. istence at the time of the acts charged substantially “Therefore," etc.

identical laws, constituting certain acts forgery, This statute sets forth in twenty-nine sections cer- whether these laws are in statute or otherwise, whether tain offenses, including most of the common-law for- created before the treaty or after it, it is for the purgeries; each section declares the grade of the particu- poses of the treaty the crime of forgery named in it; lar offense, as a felony or a misdemeanor, as the case and also the further proposition that under the Extramay be, and prescribes the punishment; many of the dition Act of Canada, following the precedent of Eng. sections use the words “ whosoever shall forge," etc., land itself, the magistrate must commit the accused etc., as our Code does, without anywhere defining the for extradition when the evidence would warrant his words "forge “ forgery;” and in many sections commitment for any one of the offenses named in the the word “forge does not appear, although the of- schedule. fense declared against may be clearly forgery, nor does It is not my object at this time to set forth the bearauy section declare in so many words that the offense ing which the evidence had to these legal propositions ; set forth shall be forgery.

but as I have indicated, rather to correct the existing Section 2 provides that “whosoever with intent to

misapprehension that the extradition of Eno was dedefraud, draws, makes, signs

* any bill of manded upon a charge of forgery at common law, supexchange or promissory note, or any undertaking, war- ported by evidence of “false entries in books." It rant, order, authority or request for the payment of may be said however that while evidence of embezzlemoney

* * by procuration or otherwise, for, ment and misappropriation of money, and of consein the name, or on account of any other person, with- quent false entries had to be produced in order to esout lawful authority or excuse," is guilty of felony, tablish an intent to defraud, which is an element of all etc.

forgeries, there was evidence, taken all together, such This section 27 is identical with section 24 of the

as in the opinion of the counsel representing the prosEvglish Forgery Act of 1861, mentioned above; the ecution amply sustained the charge of forgery accordEnglish act is entitled “An act to consolidate and

ing to its common-law meaning. It does not seem to amend the statute law of England and Ireland relat- be well known, at least to those who through the press ing to indictable offenses by forgery;" and the subtitle seek to inform the public that the now famous declaraunder which this section 24 falls is identical with the tion of Chief Justice Cockburn in the Windsor case corresponding subtitle of the Canadian act, namely: that forgery “by universal acceptation is understood "As to forging deeds, wills, bills of exchange, etc. ;" to mean the making or altering a writing so as to make this section 24 was intended to meet the case decided the alteration purport to be the act of some other perin Regina v, White, 1 Deu. C. C. 208, where one was in- son," is not nor has ever been the limitation of the

[ocr errors][ocr errors]

or

[ocr errors]

*

* *

**

[ocr errors][ocr errors]

word forgery. Forgery “is the fraudulent making or fraudulent intent as the principal act charged; it was
alteration of a writing to the prejudice of another the making of the "cashier's checks' under the cir-
man's right" (4 Black.Com. 247); it is "a false making, cumstances alluded to, that was charged as forgery.
or a making malo animo of any written instrument for It is a matter for regret that the questions raised in
the purpose of fraud and deceit” (East P. C. 852), and this case, probably for the first time, could not be
East declares this to be "the result of all the authori- passed upon by the full bench of judges; but the laws
ties, ancient or modern;" it is "the false making of an of Canada provide no mode of reviewing the decision of
instrument which purports in the face of it to be good Mr. Justice Caron dischargiug the prisoner, although
and valid for the purposes for which it was created, if he had held him in the first instance Eno could have
with a design to defraud any person or persons” (per taken the matter up.
Eyre, B., in Rex v. Jones, 2 East, C. C. 991); and “it is

GEORGE H. ADAMS. said to be possible for a man knowingly to make a

NEW YORK, August 6, 1884.
deed in his own name, and also to sign and seal it him-
self, which yet in judgment of law may be no better
than a downright forgery” (II Hawkins, P. C. 103);

RIPARIAN RIGHTS ON THE GREAT LAKES."
and "the notion of forgery doth not so much consist
in the counterfeiting of a man's hand and seal as in MICHIGAN SUPREME COURT, APRIL 23, 1884.*
the endeavor to give an appearance of truth to a mere
deceit and falsity ” (per Blackburn, J., in Regina v. Rit-

LINCOLN V. DAVIS. son, L. R., 1 C. C. R. 204, decided four years after the

Riparian rights upon the great lakes are in theory the same as Windsor case); it is “making a false document with

upon navigable streams, and are not governed by any such intent to defraud.3 Stephen's Hist. Cr. Law, 186. proprietary division as high and low water mark, The And in Regina v. Ritson, supra, the accused was in- submerged lands are appurtenant to the upland so far as dicted for forgery (in 1869) of a deed; and it appeared

their limits can be reasonably identified; but in public that with intent to defraud he had himself as grantor,

waters the State law must determine how far rights in by his own true signature, and acting as and for him

such lands can be exercised consistently with the easeself alone, executed the particular deed to his son, the

ment of navigation.

The State can forbid any erections in navigable waters and on deed bearing a date anterior to that of another genu

navigable streams, and along the great lakes can fix the ine deed which he had previously made to the prose- distance, beyond which private erections cannot be cutor; it was held by the whole bench to be forgery maintained. at the common law. And see the criticism of Chief Fishing in open waters remote from the land is a maritime Justice Cockburn's definition in 1 Wheat. C. L., $$ 654, business like navigation, and may be carried on with any 667, and the siguificant note to $ 667.

suitable machinery, and even with stakes, wherever it A consideration of the circumstances under which

does not interfere with navigation and is not forbidden by Eno made the cashier's checks, the fraudulent pur

law. And in narrow streams fishing from boats with lines

cannot be complained of by riparian owners if the persons pose for which they were confessedly made, his abso.

fishing have the right to be there. lute want of authority to make such checks except for

Fish are feræ naturæ, and can be taken by any one who has certain specified purposes, the fact that when made the right to be on the premises. and in his hands before being altered they “purported

RROR to Alpena. checks and genuine obligations of the bank, would

J. D. Turnbull, for plaintiff. bring the acts of Eno very close to if not within the line of common-law forgery, as defined by every crim- Carpenter & Williams and Hatch & Cooley, for deinal law writer from Coke to Wharton, and within the fendant and appellant. decisions of all the judges, excepting the obiter dictum

CHAMPLIN, J. Thunder bay is a portion of the of Chief Justice Cockburn in the Windsor case.

waters of Lake Huron. The bay is of considerable A word should be said in conclusion as to the Tully magnitude, being about 13 miles wide at its mouth, case and Judge Brown's decision, about which so much

and extending from South Point in a north-westerly was said in application to the Eno matter. The charge

direction a distance of 15 or 20 miles. The shores of against Tully was in effect, that being manager of his

this bay are quite irregular, and indented with smaller bauk, by means of checks which he was authorized to

bays, one of considerable size being known as Squaw draw, he obtained money of his bank; and that to con

bay. Sulphur island is situated in Thunder bay, beceal his misappropriations he made false tickets called

tween one and two miles from the main land, in the “blue slips,'' which represented to the bookkeepers of

western part of the bay. It contains about 53 acres of the bank that he had properly disposed of the money ; land, and was survoyed and sold by the United States and this making of blue slips was charged as the forg- government as lots 1 and 2 of section 13, in township ery. The court properly determined that the drawing 30 N., range 8 E. This island is valuable only in conof the money was no offense, and that for all that ap

nection with the fisheries in Thunder bay. There is a peared the criminal intent arose afterward, and re

channel between it and the mainland of about 13 feet sulted in a simple embezzlement of the money; and

of depth of water, but the main channel used in navithat the making of the blue slips was equivalent to

gation to and from the city of Alpena, which is situafalse entries in books, and the Windsor case had set

ted upon the bay, lies north-east of the island. tled the law in England as to that; that though the

The defendant at the time of the grievances comcourt was inclined to the opinion that even then the

plained of was the lessee, and in possession of Sulphur acts charged were forgery within the treaty,the Wind

island. He had been for some time engaged in the sor decision demonstrated that to extradite Tully to

business of fishing in Thunder bay, in front of lands England would be an idle ceremony. The remarks of

owned or leased by him, and claimed that by virtue of Judge Brown that no English case since the Windsor

his lessor being the owner of Sulphur island, he was the case had been brought to his attention leads to the

proprietor of the soil under the water in front thereof, conclusion that he was not aware of the case of Regina and controlled the right of fishing in those waters by v. Ritson, supra.

means of trap-nets, which cannot be used without the There was never at any time a proposition to obtain

aid of stakes or poles driven in the ground. The the extradition of Eno on the charge of forgery in

plaintiff is also a fisherman, and sometime in June, making false deposit or loan slips or false entries, of which there were many; these were proveu to show a

* 19 N, W. Rep. 103.

to be what they were not;" that is, genuine cashier's ERROR

[ocr errors][ocr errors][ocr errors][ocr errors]

1882, caused stakes to be driven in Thunder bay, com- the part thereof mentioned, every subject of the realm meucing about a mile east of Sulpbur islavd, and had, and of right ought to have, the right and privi. thence continued eastward for a distance of about 160 lege of fishing, and that in the exercise of that right rods, for the purpose of affixing thereto trap-nets ho committed the trespass complained of. The plaintfor fishing. The depth of water where the stake near- iff claimed the right to fish through a royal grant from est the island was driven was 26 or 27 feet, and where Charles II, in 1660, and another in 1661 of the right to those were driven the furthest from the island the fish in Lough Neagh. No evidence had been given of depth of water was 36 or 37 feet. The defendant also forfeiture, or escheat, or other source of title in the proceeded to drive stakes near those driven by the king. Lord Cairus said: “The crown has no de Jure plaintiff, and notified the plaintiff to take up and re- right to soil or fisheries of a lough like Lough Neagh." move those placed there by him, but he refused, and He then proceeds to describe Lough Neagh as "the the defendant pulled them up, and they floated away longest inland lake in the United Kingdom, and one of and were lost. The plaintiff brought trespass and re- the largest in Europe. It is from 14 to 16 miles long, and covered.

from 6 to 8 miles broad. It contains nearly 100,000 afres; There are two questions presented by this record. but though it is go large, I am not aware of any rule (1) Is the owner of land bounded by the waters of the which would prima facie connect the soil or fishings great lakes, like Lake Huron, entitled to the rights of- with the crown, or disconnect them from the private a riparian proprietor in front of his lands to the cen ownership either of riparian proprietors or oth ter of the lake? (2) If so, do such rights confer upon persons." And Lord Blackburn said: "The propsuch riparian proprietor the exclusive right of fishing erty in the soil of the sea, and of estuaries, and in the waters in front of his land by means of stakes or of rivers in which the tide ebbs and flows, is other attachments to the soil under water?

prima facie of common right vested in the crown. The plaintiff bases his right of recovery upon the It is clearly and uniformly laid down in our public right of fishing in the great lakes. By the com- books, that where the soil is covered by the mon law all persons bave a common and gen- water forming a river in which the tide does not flow, eral right of fishing in the sea, and in all the soil does of commou right belong to the owners of other navigable or tide waters, and no one can main- the adjoining land, and there is no case or book of tain an exclusive privilege to any part of such waters, authority to show that the crown is of common right unless he has acquired it by grant or prescription. entitled to land covered by water where the water is

In the case of Carter v. Murcot, 4 Burr. 2162, it was not running water forming a river, but still water declared that in rivers not navigable—that is, in rivers forming a lake. * * I own myself to be unable not atfected by the tides-land-owners bad the right to see any reason why the law should not be the same of fishing on each side, commonly, to the middle of the at least where the lake is so small or the adjoining stream, and in navigable tide-water rivers the right manor so large that the whole lake is included in one was prima fucie in the king, and was public, but a pric property. Whether the rule that each adjoining provate person may have an exclusive right by grant or prietor, where there are several, is entitled usque ad prescription.

filum aquæ, should apply to a lake is a different quesThe decisions in England have been uniformly to tion. It does not seeni very convenient that each proshe effect that the owner of land bordering op streams prietor of a few acres fronting on Lough Neagh should not affected by the flow and reflow of the tides, have a piece of the soil of the lough many miles in whether in fact wavigable or not, has the exclusive length tacked onto his frontage. But no question right of fishing in front of his land to the middle of arises in this case as to the rights of the ripariau prothe stream. The later cases are fully as strong as the prietors among themselves, for no title is made by earlier. In the case of Malcomson v. O'Dea, 10 H. L. either party through any one as riparian owner. It is Cas. 618, the court said: “The soil of pavigable tidal however necessary to decide whether the crown has of rivers, like the Shannon, so far as the tide flows and common right prima facie title to the soil of a lake. I reflows, is prima facie in the crown, and the right of think it has not." fishing prima facie in the public. But for the Magna It is evident from the foregoing citations that the Charta the crown could by its prerogative exclude the question in England as to riparian proprietorship in public from such prima facie right, and grant the ex- the soil under lakes had not been judicially settled as clusive right of fishing to a private individual, either late as the year 1878. The holding that the crown does together with or distinct from the soil. And the great not of common right prima facie own the title to the charter left untouched all fisheries which were made soil under the waters of an inland lake leads necesseveral, to the exclusion of the public, by act of the sarily to the other conclusion, that such soil belongs to crown uot later than Henry II."

the riparian proprietor But the case can form no In Murphy v. Ryan, 2 Ir. R. C. L. 143, it was held guide with reference to riparian ownership upon the tbat the public could not acquire, by immemorial us- great inland seas bordering this State. Lough Neagh, age, any right of fishing in a river in which, though the largest in the United Kingdom, is too small to be pavigable, the tide did uot ebb and flow; and to the the subject of any comparison with Lake Huron, with same effect is Hargreaves v. Diddams, L. R., 10 Q. B. the object of ascertaining by any analogy whether the 582.

rules or principles of riparian ownership applied to one In Johnston v. Bloomfield, 8 Ir. R. C. L. 68 (Exch. should govern the other. Cham.), it was held that the public has not, of com- It was the theory of monarchical governments that mon right, a common of fisbery in large inland waters the king was lord of the sea, and the owner of the soil in which the tide does not flow and reflow, although while it was covered with water. 2 B1. Comm. 262. they are navigable.

This is a reasonable doctrine, and founded in good A case decided in the House of Lords in 1878, and

It would be absurd to suppose that any private cited as Bristow v. Cormican, 3 App. C'as. 611, was person could appropriate to his own exclusive use where the plaintiff brought trespass against the de- either the waters of the sea or the soil beneath it. The fendant to establish a right to a several fishery in publio right of navigation and fishing in such waters Lough Neagh. Defeudant alleged that the several should not be rendered subservient to private occufishery and the lands covered with water were, and pancy. Title by occupancy presumes a grant. There from time immemorial had been, part of an inland sea, must be an owner capable of granting before a grant called Lough Neagh, and that said inland sea had been can be made. If there be no owner there can be no a common or public navigable inlaud sea, and that in grant, and no title by prescription. Aud so the com

[merged small][ocr errors][merged small]

sense,

[ocr errors]

mon law regarded the sovereign as owner, and as hold- the great lakes to low-water mark. It does not follow ing the title in trust for the public use of navigation however that the owner of lands thus bounded has no and fishing, and such uses as should subserve the gen- rights to the use of the water or the soil beneath it. It eral welfare. The same reasons which existed during is well settled in this country that where the law is that the origin and growth of the common law to deny the the owner is limited by either high or low water mark right of riparian proprietorship in the bed of the sea he has the right to construct warehouses, wharres or forbid such private proprietorship in the owner of land piers in the water in front of his land, in aid of and bordering on the great lakes. “All titles in this State not obstructing navigation. Railroad Co. v. Schurare supposed to have been granted or originally recog. meier, ñ Wall. 272; Yates v. Milwaukee, 10 id. 497; nized and confirmed by the United States or by this Providence Steam Engine Co. v. Providence, etc., State." Gamble v. Horr, 40 Mich. 564. That is from Steamship Co., 12 R. I. 348 ; Coburn v. Ames, 52 Cal. the sovereigu power. Before the admission of this 385; Mather v. Chapman, 40 Conn. 382; Drury v. MidState the United States, as sovereign, had political land R. Co., 127 Mass. 571; Boston v. Richardson, 105 jurisdiction of the whole area, including the navigable | Mass. 351; Lakeman v. Burnham, 7 Gray, 437; State v. waters of the great lakes, and when the State was ad- | Sargent, 45 Conn. 358; Moulton v. Libbey, 37 Me. 472; mitted to the Union this political jurisdiction devolved Clement v. Burns, 43 N. H. 609. In some States this upon the State, and the title to the soil under the nav- this right is said not to exist without legislative auigable waters of the great lakes became vested in the thority. Tinicum Fishing Co. v. Carter, 67 Penn. St. State as sovereign to the same extent and for the 21; Garitee v. Baltimore, 53 Md. 432; Alden v. Pinney, 12 same reasons that the title of the bed of the sea was Fla. 348; Norfolk City v. Cooke, 27 Grat. 430; Rice v. vested in the king.

Ruddiman, 10 Mich. 125. If the defendant has any title to the land under the The defendant claims that the decisions of this court waters of that portion of Lake Huron known as Thun- have settled the question of riparian ownership to der bay, he must have derived it either by a grant lands bordering upon the navigable waters of this from the United States or from the State of Michigan State, and that by such decisions his rights as such He claims it by grant from the Onited States, and in owner cover the locus in quo in this case; and he cites virtue of this riparian proprietorship in Sulphur island us to the following cases : Rice v. Ruddiman, 10 Mich. and that as a concomitant of this interest in the soil he 125; Bay City Gas-light Co. v. Industrial Works, 28 id. has the exclusive right of fishery in the waters of the 183; Pere Marquette Boom Co. V. Adams, 44 id. 404; S. bay in front of the island, at least so far as the driving C., 6 N. W. Rep. 857 ; Watson v. Peters, 26 Mich. 517; of stakes in the soil and the use of trap.nets is con- Lorman v. Benson, 8 id. 18. cerned. What then are the boundaries of the grant None of the foregoing cases involved the rights of made by the United States government of the land on riparian owners of land bounded by the waters of the Sulphur island ? I have no hesitation in saying that great lakes. they are limited by low-water mark. I think the true In the case of Rice v. Ruddiman, Lake Muskegon principle is laid down in the following cases: Canal was treated by three of the judges as a widening of Com's v. People, 5 Wend. 423; Champlin R. Co. v. Val- the Muskegon river, but the majority of the court entine, 19 Barb. 484; Fletcher v. Phelps, 28 Vt. 57; based their decision upon the well-recognized princiJakeway v. Busselt, 38 id. 316; Austin v. Rutland R. ple that the owner of the shore had the right to make Co., 45 id. 215; Seaman v. Smith, 24 Ill. 521.

use of the shallow waters in front of his premises, by In State v. Gilmanton, 9 N. H. 461, Parker, C. J., the construction of wharves, buildings, and other imsaid: “Where a grant is made extending to a river and provements, so long as the public servitude was not bounding upon it, the center of the stream is the line thereby impaired, aud it was immaterial whether the of the boundary, if there is no limitation of the particular place in controversy was a part of Lake terms of the grant itself; but in relation to grants Michigan or not. bounding on ponds, lakes, or other large bodies of The case of Pere Marquette Boom Co. V. Adams was standing fresh water that principle does not apply, but clearly the case of a river, although called Pere Marthe grant extends only to the water's edge." See also quette lake. This lake is formed by a widening of the 3 Kent Comm. 429, and note b.; Gould Waters, $ 203, waters of the river before they reach Lake Michigan, and cases in note 3; Ang. Water-courses, &$ 41, 42. and no reason is apparent why the principles applicable Such also is the construction placed upon grauts of

to rivers should not govern the rights of riparian prothe United States by the United States Supreme Court. prietors upon this so-called lake. Barney v. Keokuk, 94 U. S. 324; Railroad Co. v. Schur- The defendant calls attention to the case of Richardmeir, 7 Wall. 272.

son v. Prentis, 48 Mich. 88; 8. C., 11 N. W. Rep. 819, as Iu Eugland, where the common law had its origin, deciding the very point in issue, and claims that it was there were no great inland seas such as our great lakes, there held that the owner of lands upon the shore of and consequently no precedent can be found in the

the Thunder bay does not own the soil under the jurisprudence of that country which determines the water in front of his uplaud, and has the exclusive enapplicability of the common-law doctrine of riparian joyment of the usual riparian right appurtenant rights to the question under consideration. Lake Hu- thereto, and he insists that the only question to be ron is estimated to contain 20,000 square miles, while considered is the extent of those rights, and that subthe Irish sea is computed at less than 15,000. Lake ject to the right of navigation, there is no limit of disMichigan contains more than twice,aud Lake Superior tance from the shore, save only the central thread of about four times the number of square miles contained the stream or ceuter line of the lake, and that there is in the Irish sea. If we look for analogies they will be

no limit at all to the depth of water in which he may found to consist in the resemplauce of the great lakes exercise his right. If the position is correct that the to the seas which surround that country, and would owner of land bounding on Thunder bay has the same seem to call for the application of the same principles riparian rights that the owner of land bounded by a as to boundaries which were applied to lands bor- river or other stream has, then there can be no quesdering on those seas, with this difference: as there is tion as to his exclusive right to fish in the waters no periodical ebb and flow of tide in these waters the where plaintiff had attempted to, in this case, and that limit should be at low instead of at high water nark. plaintiff was a trespasser, and defendant was justified The paramount rights of the public to be preserved are iu removing the stakes driven by plaintiff, for the law those of navigation and fishing, and this is best accom- is well settled that riparian proprietors upon freshplished by limiting the grants of lands bordering on water streams have the exclusive right of fishing in the

« SebelumnyaLanjutkan »