Title: Footnotes - Michigan Law of Water Allocation
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Title: Footnotes - Michigan Law of Water Allocation
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Abstract: Richard Hamann's Collection - Footnotes - Michigan Law of Water Allocation
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Footnotes Michigan Law of Water Allocation

1. Findings and recomndtions of the Michi Natural Resources Conference,
Michigan State University Publication, Vol. 50, No. 1, July 1955, pp. 11-14.
Regarding Michigan water situation, see: Annual Reoarts, Michigan Water
Resources Commission, for 1949-present; Billings, Norman, Causes of Legal
Problems, a paper presented at a joint discussion, "Water rights law in
Michigan", September 1954, Journal of the American Water Works Association,
Vol. 46, No. 11, November 1954, PP. 1159-1163; Michigan's Water Problems,
the proceedings of the Water Conservation Conference, January 28, 194.
118 pages; Barlowe, Raleigh, Water Rights for Irrigation in Michigan ,
Quarterly Bulletin of the Michigan Agricultural experiment Station, Vol. 36,
No. 1, August 1953, pp. 30-38.
2. Grand Rapids & Indiana Railway Co. v. Round, 220 Mich. 475,478, 190 N.W. 248
(1922).

3. Turner v. Holland, 65 Mich. 453,466 (1887).
4. Femaode v. Aetna Cas. & Surety Co., 303 Mich. 186,192, 6 N.W. 2d 219 (1942).
5. Gregory v. Bush, 64 Mich. 37,41, 31 N.W. 90 (1887).
6. Hilliker v. Coleman, 73 Mich. 170, 41 N.W. 219 (1889).

7. Rummell v. Lamb, 100 Mich. 424, 59 N.W. 167 (1894). See also Hilliker v.
Coleman, 73 Mich. 170,41 N.W. 219 (water gathered from marsh in a collection
box and then let to flow down ravine).
8. Monroe Carp Pond Co. v. River Raisin Paper Co., 240 Mich. 279,287, 215 N.W.
325 (1927); Kennedy v. Niles Water Supply Co., 173 Mich. 474,475, 139NW241(1912)
See also Palmer v. Dod, 69 Mich. 474,31 N.W. 209 (1887); Hilt v. Weber, 252
Mich. 198,218 (1930); Dohany v. City of Birmingham, 301 Mich. 30 (1942). The
title of the riparian owner extends to the middle of the stream or lake. See
Lorman v. Benson, 8 Mich. 18 (1860). Land formed by accretion or reliction
becomes part of the previous riparian tract. Hilt v. Weber, 252 Mich. 198,
233 N.W. 159 (1938).

9. Ruggles v. Dandison, 284 Mich. 338,279 N.W. 851 (1938).
10. Bauman v. Barendregy, 251.Mich. 67,69 (1930); see also Schweikart v. Stivala,
329 Mich. 180,191, 45 N.W. 2d 26 (1950); Richardson v. Prentiss, 48 Mich.
88,11 N.W. 819 (1882); Blain v. Craigie, 294 Mich. 545,293 N.W. 745 (1940).
l0a. Lorman v. Benson, 8 M. 18 (1860).

11. Bainton v. Clark Equipment Co., 210 Mich. 602,178 N.W. 51 (1920). On lessees
see Swartz v. Sherston, 295 Mich. 423,300 N.W. 148 (1941).
12. Anaheim Union Water Co. v. Fuller, 50 Cal. 327, 88 Pac. 978,980 (1907); see
also Town of Jordonville v. Zinn, 129 Va. 542,106 S.E. 508 (1921); cf. Hilt v.
Weber, 252 Mich. 198,218 (1930).
13. The respective rights of riparians and non-riparians are discussed below. The
possibility of acquiring water rights by grant without acquisition of the
riparian land is discussed in the section on private transfer of water rights.







Footnotes --2--


14. See Taylor v. Indiana and Michigan Electric Co., 184 Mich. 378,151 N.W. 739 (1915)
damagess for negligent operation of a dam); Bauman v. Pere Marquette Boom Co.,
66 Mich. 594,33 N.W. 538 (duty to exercise due diligence in running logs and
damages for injuries due or unnecessary and unreasonable delay in removing them);
Winchell v. Clark, 68 Mich. 64,35 I.w. 907 (1888) (dam which floods land held a
nuisance. Owner of flooded land may resort to self-help). Dohany v. City of
Birmingham, 301 Mich. 30, 2 N.W. 2d 907 (1942) (A non-riparian city disposed sew-
age through a sewer across plaintiff's land into a watercourse bounding plaintiff'
premises. Nuisance doctrine invoked and decree issued allowing city reasonable
time to make proper adjustments and enjoining it thereafter from continuing the
nuisance). The nuisance doctrine also contains a criterion of "reasonable use".
Many of these cases discuss riparian rights and ordinary torts doctrines inter-
changeably.
15. 29 Mich. 420, 422-425 (emphasis supplied). For rejection of prior appropriation
in Michigan, see Preston v. Clark, 238 Mich. 632,214 N.W. 326 (1927).
16. See 2 Farnham, The Law of Water and Water Rights, 1578 (1904).

17. People v. ulbert, 131 Mich. 156,165,166,91 N.W. 211 (1902) approving of state-
ments in Strobel v. Salt Co., 164 N.Y. 303, 58 N.E. 142.
18. See, e.g., Phillips v. Village of Armada, 155 Mich. 260,262-263,118 N.W. 941
(1908): "The use of a stream reasonable at one time and one place may become un-
reasonable at another time and at another place. The reasonable use of a stream
must be determined in the light of increased population, of proper sanitary
measures and the general welfare of the communities affected. The sewerage of
villages and cities has become an absolute necessity for the public health. It
is not enough to condemn a use as unreasonable because such a use may pollute to
some extent the waters of the stream below. Its use by the upper riparian
owners may be such as to render it unfit for domestic purposes by man, and yet
such use may be reasonable."
19.



20. Dumont v. Kellogg, 29 Mich.420,425 (1874).

21. See Stuart v. Detroit Finnish Coop., 277 Mich. 144, 269 N.W. 122 (1936) and
cases cited therein.
22. Taylor v. Indiana & Michigan Electric Co., 184 Mich. 578, 151 N.W. 739 (1915).
Woodin v. Wentworth, 57 Mich. 278, 23 N.W. 813 (1885).
23. Richards v. Peter, 70 Mich. 286,38 N.W. 278 (1888).

24. Haas v. McManus, 161 Mich. 372,126 N.W. 462 (1910).
25. Boxie v. Hoxie, 38 Mich. 77. This case and its possible implications are dis-
cussed more fully subsequently in the text.
26. 161 Mich. 372,376; 126 N.W. 462 (1910),

27. 240 Mich. 279,285 (1927).

28. 301 Mich. 30, 2 N.W. 2d 907 (1942).
J




-7I

Footnotes --3--

29. 155 Mich. 260, 262-263, 118 N.W. 941 (1908).
30. People v. Hulbert, 131 Mich. 156,91 N.W. 211 (1902).
31. Pettibone v. Smith, 37 Mich. 579,582 (1887).

32. People v. Hulbert, 131 Mich. 156,159 (1902); Beach v. Hayner, 173 N.W. 487,207
Mich. 93 (1919); Burt v. Munger, 314 Mich. 659, 23 N.W. 2d 117 (1946). See also
Loranger v. City of Flint, 185 Mich. 454,152 N.W. 251 (1915).

33. Masterbrook v. Alger, 110 Mich. 414,417, 68 N.W. 213 (1896).
34. See Barlowe, Water Rights for Irrigation in Michigan, 36 Qu. Bul. Mich. Agr.
Exp. Sta. (Mich. State College) 30,32.

35. Potter v. Indiana & Lake Mich. Ry., 95 Mich. 389 (enforcing contract);
but see Norris v. Hill, 1 Mich. 202 (1849) (No apportionment between the two
millowners at least as long as no injury is shown). For an example of a rule
of apportionment of equal water rights in another Jurisdiction see Bliss v.
Kennedy, 43 Ill. 67,76(1867): "A reasonable rule, and one which we desire to
lay down would be this: as the water is destroyed being converted into steam,
neither of these factories is entitled to exclusive use; and it is to be
divided between them as nearly as may be according to their respective require-
ments; that if each factory requires the same quantity of water, it should be
equally divided ..."
36. 240 Mich. 279,285, 215 N.W. 325 (1927).

37. 131 Mich. 156,165, 91 N.W. 211 (1902) quoting with approval Strobel v. Salt Co.,
164 N.Y. 303.

38. 238 Mich., 632, 214 N.W. 226 (1927).

39. 38 Mich. 77.
40. Id. at 81.

41. Stock v. Township of Jefferson, l14 Mich. 357,72 N.W. 132 (1897).
42. Dohany v. City of Birmingham, 301 Mich. 30.

43. Stock v. City of Hillsdale, 155 Mich. 275,379, 119 N.W. 435 (1909). See also
Hall v. Ionia, 38 Mich. 493 (1878).
44. City of Battle Creek v. Goguac Resort Ass'n, 181 Mich. 241,148 N.W. 441 (1914).
See also People v. Hulbert, 131 Mich. 156,174, 91 N.W. 211 (1902): "In what we
have said we do not mean to intimate that an upper riparian proprietor may
convert his property into a summer resort and invite a large number of people
to his premises for purposes of bathing, and give them the right only possessed
by the riparian owner and his family". Cf. Preston v. Clark, 238 Mich. 632,214
N.W. 226 (1927) (discussed in text above); Swartz v. Sherston, 299 Mich. 423,300
N.W. 148 (1941) (a riparian owner and his lessees at an inland lake may use the
water of the lake for boating and fishing insofar as this does not interfere
with the reasonable use of waters by other riparians).

j






Footnotes 4 -


45. Those have been defined as waters which "ooze, seep or filter through soil be-
neath the surface without a defined channel or in a course that is unknown or not
discoverable". Clinchfield Coal Corporation v. Ccp0ton, 48 Va. 437, 139 8.E. 308
(1927). They may manifest themselves in waters capable of flowing for a short
distance, e.g. a rivulet, an artesian well or a mineral spring. Schenck v. City
of Ann Arbor, 196 Mich. 75, 81, 163 x.W. 109 (1917); Bernard v. City of St.Louis,
220 Mich. 159, 160-163, 189 N.W. 891 (1922).

46. Acton v. Blundell, 12 Mees & W. 324; Upjohn v. Board of Health of Richland, 46
Mich. 542,549, 9 .w. 845 (1881).
47. schenck v. City of Ann Arbor, 196 Mich. 75,81, 163 N.W. 109 (1917).

48. 196 Mich. 75.

49. "The court cannot know what action the defendant will take in the premises.
It is not now harming the plaintiff and the decree secures to him compensation
for such actual injury as he is shown to have suffered." See also Brooke, J.:
"I think that the defendant should either be permanently enjoined from proceed-
ing with the contemplated enterprise, at this time ... or that injunctive re-
lief should be denied ... Inasmuch as the right of the public to an adequate
supply of pure drinking water is paramount to private property rights, I am of
opinion that the law in this state should be clearly enunciated as follows:
That any municipality, requiring water for domestic or municipal purposes, may,
* under the authority granted by the legislature, procure such water from lands
acquired by it for that purpose and that the resulting damage, if any, to
adjacent landowners, must be borne by such municipality; such damages to be
ascertained in gross and in a single action at law by the injured landowner."
Id. at 92-93.
S 50. Some of the quotations relied on are:

"It is net unreasonable so far as it is now apparent to us that he should
dig wells and take therefrom all the water that he needs ... (for) the
fullest enjoyment and usefulness of this land as land, either for purposes
of pleasure, abode, productiveness of soil, trade, manufacture, or for
whatever else the land as land may serve. He may consume it, but must not
discharge it to the injury of others. But to fit it up with wells and
pumps of such pervasive and potential reach that from their base the ...
(landowner) can tap the water stored in .. (another landowner's) land,
and in all the region thereabout, and lead it to his own land, and by
merchandising it prevent its return, is ... unreasonable as to the (land-
owner) and the others whose lands are thus clandestinely sapped, and their
value impaired."
forbell v. City of New York, 164 N.Y. 522,526, also quoted in Hathorn
v. Gas Co., 194 N.Y. 326, 87 N.E. 5047
"Each owner of soil lying in a belt which becomes saturated with per-
colating water is entitled to a reasonable use thereof on his own land...
notwithstanding (that) such reasonable use may interfere with water
percolating on a neighbor's soil...; but he has no right to injure his
neighbors by an unreasonable diversion of the water percolating in the
belt for the purpose of sale or carriage to distant land."







Footnotes -5-


"The doctrine of reasonable use ... affords some measure of protection
to property now existing and greater justification for the attempt to
make new developments. It limits the right of others to such amount of
water as may be necessary for some useful purpose in connection with the
land from which it is taken. If ... water-bearing land is generally worth-
less except for the water which it contains, then the quantity that could
be used on the land would be nominal, and injections cou not be ob-
tained or ubtatil damages aared against those who carry it to distant
lands. (Italics supplied) I
Zaoid headnote from at v. Walkinshwr, 141 Cal. 116, 74 P. 766 (1903)j
50a. It should be noted in this connection that the American rule was regarded by
the court as "apparently, but not strictly a modification of the early cooaon
lw doctrine." 196 Mich. 75, 82. What the court might have had in mind is
the characterization of the early English cases by the Forbell case, sura
note 49, quoted in the Schenek opinion, id. at 86, 89: the cases where the
lawfulness of interference with percolating water has been upheld, either the
reasonableness of the acts resulting in the interference or the unreasonable-
ness of imposing an unnecessary restriction upon the owner's dominion of his
own land has been recognized". Then follows the statement: "It is not un-
reasonable so far as it is now apparent to us ." quoted in note 49. In
other words the rule was always one of "reasonable use" but the actual
content of reasonable use" may change with the passing of time. At the time
of the Forbell decision, uses of water on and for the land from which it is
withdrawn are reasonable as far as then apparent to the court. In the future,
however, even these uses might become unreasonable if they interfere with
neighboring users.

51. 220 Mich. 159,160-163, 189 N.W. 891 (1922).
52. Id. at 162.

53. Id. at 163.
54. Compare the following comments on the Michigan law:
S"The Schenck case may be summarized as follows: Although a landowner
has a property right to sink wells on his own land and use ground water
in any way he chooses even if he dries up his neighbors' wells, this
property right is qualified by the rule of reasonable use. This is
known as the 'American' or 'reasonable use' rule ... Under this rule ...
a landowner may consume, on his land, as much of the underground waters
as is necessary for agriculture, manufacturing, irrigation, or other
purposes, even though the effect of such use may be to divert or inter-
fere with the ground waters of neighboring land. The withdrawal of
such waters for sale or distribution and use away from the land, however,
may be unreasoz~ble if it interferes with a reasonable use of waters by
adjacent landowners."
Booth, Water Rights Law in Michigan Legal Principles and Decisions,
4J. Am. Water Works Assn. (No. 11) 1163,1 66 (19547*

"From a legal viewpoint the courts recognize the rights of farmers and
others to sink wells on their own lands and to pump considerable quan-
tities of water for irrigation and other purposes. In this regard, the
Michigan courts have indrsed the rule of reasonable use. shis rule

j


^_111___1______1____Illl_---CI----






footnotes -6-

permits owners considerable freedom in the use of percolating ground
waters but may be interpreted to prevent wasteful, malicious or other
unreasonable uses of water, particularly if these uses have a harmful
or injurious effect upon others. Under some circumstances ground water
users may be held liable for damages if it can be proved that their
pumping activities have so lowered water levels as to require the
deepening or abandonment of wells that existed previously in the vicin-
loe, Water Rights for Irrigation in Michian, 36 Qu, Bull. Mich.
Ex. sta., Michigan state College, (No. ), 30,37-38 (195327
55.3 18.591 et. seq., M.S.A. (1935) enacted in 1905.
56.8 18.591 M.S.A. (1935).
57.8 18.592 M.S.A. (1935).
58. Upjohn v. Board of Health, 46 Mich. 542, 9 N.W. 845 (1881).
59. Id. at 549-50.
60. Fenmode v. Aetna Casualty and Surety Co., 303 Mich. 188,192 (1942), quoted with
approval in Robinson v. Belanger, 332 Mich. 657, 661-662, 52 N.W. 2d 538 (1952).

. 61. Application of the law of "negligence" to sewer disposal and drainage appears
to produce no more than the results to be expected of the application of water
law, discussed below. Thus if a city negligently constructs a public sewer
with the result that water is improperly set back and discharged upon plaintiff's
premises it is liable for the injury. See Defer v. Detroit, 67 Mich, 346,
34 N.W. 680 (1887). Similarly, liability is Imposed for municipal negligence
* in producing an inefficient or defective drainage system, resulting in the col-
lection of water and its subsequent discharge upon private premises. See
Seaman v. City of Marshall, 116 Mich. 327, 74 N.W. 484 (1898).
62. Crane v. Valley Land Co., 203 Mich. 353,359, 169 N.W. 18 (1918), also quoted
with approval in Robinson v. Belanger, 332 Mich. 657,662, 52 N.W. 2d 538 (1952).
63. Bennett v. County of Eaton, 340 Mich. 330, 65 N.W. 2d 794,797 (1954).
64. Ibid., see also Finkbinder v. Ernst, 135 Mich. 226, 97 N.W. 684 (1903).
66. Horton V. Sullivan, 97 Mich. 282,283, 56 N.W. 552 (1893); Gregory v. Bush, 65
* Mich. 37, 31 N.W. 90 (1887); Ruebs v. Sohants, 309 Mich. 245 (1944), and see also
Leidlein v. Meyer, 95 Mich. 586, 55 N.W. 367, vhich significantly held that in
I principle the artificial discharge of surface waters in unnatural quantities to
the prejudice of neighboring land was actionable; it was a right which could be
acquired by prescription.
66. Bennett v. County of Eaton, 340 Mich. 330, 65 N.W. 2d 797 (1954).
67. Gregory v. Bush, 64 Mich. 37,42, 31 N.W. 90 (1887).
68. Cranson v. Snyder, 137 Mich. 340,344, 100 N.W. 674.
69. Horton v. Sullivan, 97 Mich, 282,283, 56 N.W. 552 (1883).


70. Boyd v. Conklin, 54 Mich. 583,593, 2o N.W. 595 (1884).






Footnotes -7-

70a. Under the English cannon law, which Might in this respect be followed in
Michigan, the rule of capture is not applied where percolating water is
tributary" to a surface stream. Grand Junction Canal v. Shuger, LB, 6, Ch. 483.
71 Stock v. City of Hillsdale, 155 Mich. 375 (1909) (non-riparian city held not li-
able for damages for past use during period when riparian not injured. Future
injunction denied by Balancing Equities, see infra. Past damages for actual
injury recoverable).
72. Stock v. City of Hilsdale, 155 Mich. 375,119 x.W.435 (1909).
73. City of Allegan v. Voneaek, 259 Mich. 310,316 (condemnation case). See also
the opinion In the sae case in 261 Mich. 16,25. See also Potter v. Indiana &
Lake Michigan Rvy. co., 95 Mich. 389 (no damages). See generally 2
Farham, op. cit. supra. 1510; 35 A.L.R. 1222, 55 A.L.R. 1385 (percolating
water); 38 A.L.R. 1388; 19 AL.R. 2d 769 (pollution)
S74 48 Mich. 369 (1882). See also Norris v. Hall, 1 Mich. 202 (1849).

75. 240 Mich. 279, 215 -.W. 325 (1927).
76. Id., 288-289; a distinctly similar type of analysis preceded denial of injunctive
relief in Stock v. City of Ullsdale, 155 Mich. 375, 119 N.w. 435 (1909) in which
the court declare (155 tlic. 375,381): A court of eq aty will take into con-
* sideration not only complainant's bare legal rights, but the damage which will
result to a defendant from the enforcement of such legal rights." And of. Payne v.
Paddock, Walk Ch. 487 (1844) in which the court held that where defendants had
expended labor and $3,000 in the construction of a mill in reliance upon com-
plainants' permission to draw water from a lake, the outlet of which flowed
through the qopsaiznnts' land, no injunctive relief would lie." See note 76a
Sinfra. See also Msoie v. Moxie, 37 Mich. 77,82 (1878): and of. 2 Faraham,
Law of Water and Water Rights, 1691 (1904) and cases cited therein." "()t has
been held that an Injunction will not be issued where it appears that the effect
to defendant will be to stop his works while the plaintiff is not seriously in-
jured by the pollution of the stream."
76a. Stock v. City of illsdale, 155 Mich. 375, 119 Nx.. 435 (1909). Other cases em-
ploying the principle of Balancing the Equities are Howard v. Bellows, 148 Mich.
410, 111 N.W. 1047 (1907); Township of Wyoming v. Judge Superior Court of Grand
Rapids, 158 Mich. 60, 122 N.W. 214 (1909). For a refusal to aply the doctrine
so as to allow a city to disregard an order of the Strem Control Commission to
construct a sewage treatment plant, see Michigan ex rel. Stream Control COams-
sion v. City of Port Huron, Mich. (1943). In denying injunctions the courts
protect investment in still another way. Where a person whose use is
interfered with knows of the large investment being made by the one who inter-
fered and stands idly by or acquiesces in what his neighbor is doing, he cannot
obtain an injunction later. See Burke v. Comnell (?), 65 Mich. 467, 32 N.W. 803
(1887); Holeoab v. Alpena Power Co., 198 Mich. 115, 164 x.W. 470 (1917). See
also Mamson v. Queen City Electric Light & Power Co. 181 Mich. 624, 148 N.W. 354
(1914). However, a case of estoppel is not easy to prove, see Stuart v. Detroit
Finnish Coop., 277 Mich. 144 (1936).
77. Williams v. Barber, 104 Mich. 31,33 (1895). See also Halstead v. Young, 282
Mich. 558 (1937).


78. Suffrow v. Brewer, 204 Mich, 370, 159 N.W. 81 (1918).







Footnotes -8-

79. Chapel v. Smith, 80 Mich. 100, 45 N.W. 69 (1890).

80. Leidlein v. Meyer, 95 Mich. 586, 55 NAW. 367 (1893).

81. Stock v. City of illsdale, 155 Mich. 375, 119 N.W. 435 (1909). But cf. Kennedy
v. Niles Water Supply Co. 173 Mich. 474 (lake level can be reduced only up to
depth of original pipe; one cannot lay lower pipes to get same quantity of water).

82. Chapel v. Smith, 80 Mich. 100, 45 x.V. 69 (1890); Turner v. Bart, 71 Mich. 128,
38 N.W. 890 (1888).

83. Mathewson v. Noffan, 77 Mich. 420, 434,435, 43 N.y. 879 (1889):
"The ac1plainants and their grantors, for more than 45 years, have enjoyed
the estates freed from these waters, and they cannot now be compelled to
receive them. he defendants have no more right, under the circumtances,
to change the water from the artificial hannel badk to the original
channel than they would to turn it into any other channel, or across the
land of any other person. The new channel has become the channel of the
stream.

The exclusive enjoyment of water in a particular way for 20 years, without
interruption, becomes an adverse enjoyment sufficient to raise presumption
of title against a right in any other person which might have been, but was
not asserted. fhis rule must be reciprocal, and one who has taken the water
from the original channel and has continued to divert and enboy it for a
period beyond the statute of limitations as to real actions cannot after-
wards be permitted to restore it to its original state when it will have
the effect to destroy or materially injure the property of those through
or by which it formerly flowed."

As shown in the text the prescriptive period now is 15 years.

8. Attorney General v. City of Grand Rapids, 175 Mich. 503, 141 N.W. 890 (nuisance):
G fford v. McArthur, 55 Mich. 535, 22 N.W. 28 (1885) (nuisance).

85. Preston v. Clark, 238 Mich. 632, 214 MN.. 286 (1927). See id., 238 Mich. 632,
214 N.W. 226,229 (1927):

In Farnham on Waters, vol. 2, sec. 536, the rule applicable here, is
well stated: 'The riparian owner receives the water and in so doing
he does not interfere with the rights of any other owner of the streams
and he can gain no prescriptive right to have the flow continue by
the fact that he has received it without interruption by the upper owner
for the prescriptive period. It may be that the upper owner has had no
use for the water, but the mere fact that he had none, and did not attempt
to make any use of it, cannot deprive him of any of his rights or entitle
the lower owner to insist that the flow shall continue uninterrupted in
case the upper owner finds use for the water."

86. Swartz v. Sherston, 299 Mich. 423,428, 300 N.W. 148 (1941): King v. Battle
Creek Soa Co., 235 Mich. 24,35 (1926) quoted with approval in buggles v.
Dandison, 284 Mich. 338,342 (1938).







Footnotes -9-


87. 173 Mich. 474,475, 139 N*W. 241 (1913). See also 2 Farnham, Waters ana Water
Rights, Sees, 537-541.
88. McDonald v. Sargent, 308 Mich. 3411343, 13 N.W. 2d 843 (1944). On the possi-
bility of intention aann t of a right to flowage, see Kraft v. Miller,
314 Mich. 390 (1946).
89. See, e.g., 3 Farnhamy, Lw of Waters and Water Rights, 2186 et.seq. (1904) and
cases cited therein. See also anumn v. Baradregt, 251 Mich. 67,69 (1930):
"(I)t is a settled rule in this state that where there is no reservation of them
(in a conveyance), riparian rights attach to lots bounded by natural watercourses'
In accord: Blain v. Craigie, 294 Mich. 545, 293 N.W. 745 (1940); Solds v. Glick,
312 Mich. 394, 0 0N.W. 2d 248 (1945).
90. winchell v. Clark, 68 Mich. 64, 35 N.W. 907 (1888)
91. See, e.g., Powers v. Perkins, 132 Mich. 33, 92 N.W. 790 (1902); Mandevlle v.
Comstock, 9 Mich. 536 (1862). On the rights of non-riparians who purchase
riparian rights against other riparians see the discussion in Schofield v.
jDx"pA 074 H.W. 67, 216 Mich. 611 (1933). See also Faruham, op.cit. supra I

92. Hall v. Ionia, 38 Mich. 493, 498-499 (1878); MoMillan v. Etter, 229 Mich.
* 366,374, 201 .W. 499 (1924).
93. Constitution of 1908, as amended in 1944, Mich. Stats. Ann. (1935).
94. Sec. 22.1621 Mich. Stats. Ann. ( ); similar enactments are exeplified by
Sees. 22.1641, 22.1661 Mich. Stats. Ann. See p. infra.

95. 8 13.790 (181-187) Mich. Stats. Ann. (sale to Detroit Edison Co. for power
purposes as a more beneficial use of water for people of area).
96. Peoples eIce Co. v. Steamer Excelsior, 44 Mich. 229,234, N.W. 636 (1880).
See also Paterson v. Dust, 190 Mich. 679; Dietrich v. Schreams, 117 Mich. 298-303
75 X.. 618 (1898); Lorman v. Bonson, 8 Mich. 18 (1860).
97. Grand Rapids v. Powers, 102 Mich. 89, Mich. 94, 50 N.W. 661 (1891).
98. 2 Mich. 519, 523-526 (1853). por iohiigan cases discussing the meaning of navi-
gability see, e.g., Giddings v. Rogale]rsk, 192 Mich. 319,324, 158 N.W. 951
(1916). See also People v. Grand Rapida-Maskeon Power Co., 164 Mich. 121,
129 N.W. 211 (1910); Putna v. Kinney, 248 Mich. 410, 227 N.w. 741 (1929). A
current is not necessary. turner T. Holland, 65 Mibh. 453, 33 N.W. 283 (1887)

99. Brown v. Chadbmoue, 31 Me 9,22 (1849), adopted as Michigan doctrine in Moore v.
Sanborne, 2 Mich. 519, 527 (1853). See, e.g., Brown v. Chadbourne, 31 Me 9,
22-23:
"To determine whether a stream should be considered public none of the
authorities ... requires the stream to possess the quality of being
capable of use during the whole year. A distinguishing criterion con-
sists in its fitness to answer the wants of those, whose business requires
its use. Its perfect adaptation to auch use may not exist at all times,
although the right to it mw continue, and be exercised whenever an
opportunity occurs. In anry rivers, where the tide ebbs aad flows, the
I '<




S.._.. .. .. 1. .^,., 1, ____ ,, --___r .-. I



Footnotes -10-

public are deprived of their use for navigation during the reftux of
their waters. A way, over which one has a right to pass, ay be period-
ically covered with water ...

Most of the great rivers of this State, in same portions of their
passage, are so auch iuxded by rocks, falls and other obstructions
that lop cannot be floated in them any great distance, at what might
be called an ordinary state of water. It is only in the spring and fall,
and occasionally at other tines, when their channels are filled with water,
that they are capable of floating timber to market. 'hey generally remain
in this condition a sufficient length of time to answer the purposes of
a common highway, and their fitness and character as such cauot be de-
stroyed, because they cannot be used in their ordinary state."
100. Anderson v. Thuader Bay River Booming Co., 61 Mich. 489, 28 N.W. 518 (1896);
See also Thunder ay River BomOang Co., v. Speechly, 31 Mich. 336 (1875).
SKoopan v. Blodgett, 70 Mich. 610,617, 38 N.W. 649 (1888) declared:

"In holding that a public right of floatage exists in streams capable of
furnishing valuable facilities for moving lop ... it has never
been the understanding that the public had any other rights than
were furnished by the natural vaterway ... No easement beyond the
natural one can be obtained without authority."
101. Wooden v. Mount Pleasant Imber & Mfg. Co., 106 Mich. 412,413-4If, 64 N.W. 329
(1895).
102. Middleton v. Flat River Boaning Co., 27 Mich. 533,535 (1873).

103. See Lincoln v. Davis, 53 Mich. 375,390. Buchanan v. Grand River Log Co., 48
Mich. 364, 12 N.W. 490 (1882); Tunder Bay River ooming Co. v. Speechly, 31
Mich. 336 (1875). Also cf. the language of the court in Grand Rapids v. Powers,
89 Mich. 94,11 (1891):

"The rights of the riparian owner ... are subject ... to the public
use for the purposes of navigation; ... there is (however) a
asnifest difference between public streaks that can be used success-
fully for the running of boats and vessels for the purpose of
couserce, and those which are only capable of being used for the
floatage of lumber and logs in rafts or singlepleces. The riparian
owners are entitled to the beneficial and sole use of the latter
streams, except for floatge, and when such streams have become un-
fitted for valuable public use ... there is no more reason for holding
thae to be public than in the ease of a land highway which has been
abandoned and is useless."

104. 237 Mich. 38, 211 N.W. 115 (1926). Before the Collins case it was said that a
river floatablee for logs ... is but a public highway.'" he right to float in-
eludes only such rights as are incident to that right. Grand Rapids Booming
Co. v. Jarvis, 30 Mich. 308,319 (1874).

105. Before Collins v. Gerhardt the court in Sewers v. Hacklander, 219 Mich. 143,151,
188 N.W. 547 (1922) adoPted the rule stated in 12 RCL 668:

"The test as to the public right of fowling is the public or private
ownership of the soil beneath the waters, and if it is shown that the







Footnotes -11-

soil is privately owned, the owner has the exclusive right of fowling.
The re fact that one has the right to pass along a stream In a
boat gives him no right to shoot fowls where the soil beneath the water
is privately owned."

Cf. sterling v. Jackson, 69 Mich. 4W8, 37 .L. 845 (188). But see Ainsworth
v. Muskong Hunting & Fishing Club, 153 Mich. 185, 116 N.W. 992 (1908).

106. 306 Mich. 432 (1943).

107. Id. at 444. See also the discussion by Judge Raymond in Ne-Bo-Shone Assn.
v. Hoarth, 7 Fed. Sup. 885, affd. 81 24 70 (C.A., 6th Cir. 1936):

'Iuch of the difficulty in analysis of the various cases and in appli-
cation of the principles announced arises frm the failure in same
Instances to distinapish between the so-called 'test' and the object
of the test. The human mind is prone to confuse definitions with the
thing defined, syaptoms with the disease, theology with religion,
and descriptions with the thing described. By too close attention to
the bait the game escapes ...

It is to be noted that, while navigability was made the guide as to
what constituted public waters, it was not made the test of the sco
of the public use of such waters. While floatability was often stated
to be the test of 'navigaility, t seems apparent that, in fact, it
was not so. The very purpose for the change of test was to classify
as public waters stream which were not camercially navigable but
which were within the test of floatability ..

... While the courts have frequently said that floatability is a test
of navigability, It is clear that what was tended w that floatabilit
is a test of whether the waes to veh he test is a ed are public
or private. (Ephasi suea).
Because sane waters are public, certain rights attach thereto. These
rights are not limited by the test by which the nature of the waters
is determined, but to the rights incident to the characterization as
public of the stream or body of water."

108. 306 Mich. 432,444 (1943). See also Winans v. Willetts, 197 Mich. 512 (1917).

109 22.1511-22.1573; 8 22.148-22,1505; 8 22.1551-73 M.S.A.

110. 22.1515 M.S.A.

111. 5.2151-5.2187 M.S.A.

112. 1 5.2391, 2; 8 5.1319-21; 8 5.1776 M.S.A.

113. 8 3.534 (1) et seq. M.S.A.

114. 8 13.657; S 18.235, 6; 9.334; 8 5.344, 5; 8 5,2081; 1 9.1174, 5; 19.1195,
6 M.S.A. The logging statutes are: 018.231 M.S.A. (logging statute -- booming
of logs along shore must leave chael for usual vessels found on stream; was
held not to give company right to exercise power of client main. Flooding
of riparian land by placing boas along baokE held to be "tAkW withoutt
compensation. Mar v. mmnny, 297 Mich. 311, 297 N.W 504 -
___________________\------^------i


~II~_____ ___


*t *





Footnotes -12-

115. 413.781 et seq. x.S.A.
116. Art. VII, par. 14, Constitution of 1908 par. 9.1211 et seq.; par. 9.1171 et
seq. M.S.A.
117. $22.1581 et seq. M.S.A.
118. 22.1611 et seq. M.S.A.
119. 022.1651; 022.1671 et seq. (M.S.A.) (condemnation power again included).
120. $22.1631 et seq., see especially $ 22.1639 M.S.A.
121. See p. infra. Berrien Springs Water Power Co. v. Berrien Ciro Judge, 133
Mich. 48, 99 N.W. 379 (1903).
122. Art. Constitution of 1908, as amended in 1944.
123. 05.232 et seq., 05.2511 et seq.; 05.2581-4; 55.2131; 05.2731-2766 (borrowing
powerss; $5.1884-94; $8.71-8.96 (condemnation for water, ligtt, heat or power,
or transportation) M.S.A.
124. 05.1409 et seq.; $5.2599; $5.2581 et seq.
125. 05.2767 (1) (14).
126. 14.411 et seq. M.S.A. See also l14.23 (Water Analysis by Board of Health).
127. 33.521 et seq. M.S.A. See also $5.329 M.S.A.
127a. 5.2770 (21) 5.2770 (23) M.S.A. See also 5.1308-14 (power of villages to
* establish sewers, etc.); 05.1285 (power of villages to regulate or prohibit
bathing; $.1740 (22)(23) (cities to regulate bathing and to clean rivers).
128. The laws recently have been recodified, see Dain Code of 1956, $1-623,
$11.1001-11.1623 M.S.A. (separate pamphlet, Callaghan & Co.).
129. 11.1511 (511, of Code).
130. M11.1421 et seq. (0 421 et seq. of Code).

131. 11.1551 et seq. (O551 et seq. of Code).
132. 411.221 et seq.; 11$.271 et seq.; 11.251 et seq. M.S.A.

133. 3.522 M.S.A.
134. 4.128 (1) (7); 04.129 (1) et seq. M.S.A.
135. Article XIV, Sec. 9, Constitution of 1850.
136. Article X, Sec. XIV, Constitution of 1908. The 1850 provision was probably a
result of financial embarrassment to the State following the panic of 1837.
See ay City v. State Treasurer, 23 Mich. 499 (1821); Attorney General v.
Pirgree, 120 Mich. 550 (1899). The prohibition Vwa held to apply to the State,
Byerson v. DUtay, i6 MGh. 269 (1868) (isnv 1itng State Act to improve Mioh-
igan River fOar aviation) and to local o h] rmat units, asee ay City and
Pirgree cases*
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Footnotes -A-

157. Id. at 314.

158. 158 14. at 316, and see 261 Mich. 16,25 for disposition on second seal. See
ale., Valse to the T2Ier in CoMeimtln PmoC elme 31 Caol L. Rb. 1 (1931).
159. If one can legitaately include certain Judicial remedies as part of the pie-
ture of state regulation, those of misance and neligence come to mind. See,
e.g., Bredy v. Detroit Steel & Sprjig co., 102 Mich. 277, 60 W.V. 687 (1894);
Dohany v. City of Birminngbam 301 MiU. 30, 2 N.W. 24 907 (1942) (uisance);
Seaman v. City of Marshall, 116 Mich. 327, 74 W.W. 484 (1896) (negligence).
The Court has held that a decree for the abatAment at a maianc ordering the
increase of the sis of a seer at the xpuese of both parties o were deemed
jointly respoIible, did not involve the taking" of property. Detroit v.
ighana MPrk, 186 Mich. 166 (1915).
The Federal Poer over the navigable streas includes injury to the stream bed
without liability. Private property rights are held subject to the Federal
servitude. United States Kansas City Life Insurance Co., 339 U.S. 804-805
(1950); ewis v. Blue Point Oyster Cultivation Co., 229 U.S. 82 (1913); U.S. v.
Chandler Dunbar Co., 229 U.S. 53 (1913). he last mentioned case hs been
interpreted that no one ows the running water of a navigable stream as agMer t
the navigation power of the United State, U.S. Wilor River Pmoer Co., 324
U.S. 499,509 (1915). See also U.S. v. Apnealchan Power Co., 311 0.s. 377
(1940). Eves bwee, as a result of Federal Goamtruction to iprove nrDgation
the riparian has been barred altotaer tram amses to the woter, the SIprem
Curt has held that there was no taking" bte aal an in idental injury for
which there is no onaenmation, Saomton v. Wheler, 179 U.S. 141 (1900). not
only aprovement of navigation on a nwaigble strew but also flood control and
the generation of electric power hae been held to be valid eYmreise of the
Federal power under the Coaerce C01oe. See oases cited in bote, Powr Site
Value in Eminent Dmain Proceedi g: A ew Toll Cmarge for Water Re~urce De-
velopment Tale L, J. 96,97. And a narigble stream tas been held to
include the no-navigable stretebe as ^ a river, Ollahn v. Atkinnon Co., 3j 3
U.S. 508,523 (1941). anu te CWOrt A acot yet decided wlether the federal
Ooverment'sservtude is as broad .* ItM power aovar am re. Ite, tale
L. J. aMEIn aOuUal el adig~, g, ,cpenation Is generally
not aaed for the value in the fLaw o t*e stream since it is "a vales
that Inheres in the tvInma t 's aseWaegl ... and one that the overni ent can
grant and vwithhad as it aheo*," 9.8 v. 10.n City Power a0., 76 S. Ct.259,261
(1956). See also U.S. v. AppLhii Pvoer Co., 311 U.S. 377, U27 (1940).
For a documented discussion of the saopa of Federal intervention, see VI A
(Caner Ad.) t (1954); III Rport of the President's
Water esaurees Con 1 ; M hon (ad.) Ferai Mu e Med
SBerent, 328-351 (1955).


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