N. Y. 287, 28 N. Y. 396. 84 Am. Dec. 351;|619; Miller v. Milwaukee, 14 Wis. 642; Wisconnavigable river. It has been a water highway, City. None of these, except the last, have Atty-Gen. v. Woods, 108 Mass. 436, 11 Am. Rep. 380; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 181; Atty-Gen. v. Boston & L. R. Co. 118 Mass. 346; State v. Sargent, 45 Conn. 358; Boston v. Lecraw, 58 U. S. 17 How. 430, 15 L. ed. 120. The defendant, on the ground that he is a riparian owner, cannot construct this wall in the waters of Grand River without authority from the State, or the board of public works of the city. Hart v. Albany, 9 Wend. 571, 24 Am. Dec. 165; People v. Vanderbilt, 26 N. Y. 287, 28 Ν. Y. 396, 84 Am. Dec. 351; Atlee v. Northwestern U. Packet Co. 88 U. S. 21 Wall. 389, 22 L. ed. 619. The State has full authority to regulate the use of the waters in Grand River. Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Benjamin v. Manistee River Imp. Co. 42 Mich. 628. The act of the defendant is what is known in law as a "purpresture." Atty-Gen. v. Evart Boom. Co. 34 Mich. 462. The State may interfere whenever a riparian owner begins to erect a structure either in a and highway or a water highway. Ibid. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation. Atty-Gen. v. Woods, 108 Mass. 436, 11 Am. Rep. 380. The State has conferred upon the city power and authority to enforce its ordinance and regulation in relation to dock and building lines "by bill in equity." People v. Vanderbilt, 26 N. Y. 287, 28 N. Y. 396, 84 Am. Dec. 351; Atty-Gen. v. Woods, 108 Mass. 436, 11 Am. Rep. 380. The doctrine of the city of Janesville v. Carpenter, 8 L. R. A. 808, 77 Wis. 288, that a riparian proprietor may build to the thread of the stream if the river be not navigable in fact and without excavation or improvement, is not the law of the State of Michigan. Benjamin v. Manistee River Imp. Co. 42 Mich. 628; Manistee River Imp. Co. v. Lam port, 49 Mich. 442; Manistee River Imp. Co. v. Sands, 53 Mich. 593; Sands v. Manistee River Imp. Co. 123 U. S. 288, 31 L. ed. 149. Mr. William Wisner Taylor, also for appellee: Admitting that a riparian owner on a public navigable stream owns, usque ad medium filum aquæ, subject to the paramount right of public navigation, and the rights incident thereto, nevertheless, "it is competent for the state Legislature to establish wharf or harbor lines." Gould, Waters, par. 133, p. 254; State v. Sargent, 45 Conn. 358; Com. v. Alger, 7 Cush. 53; Com. v. Chapin, 5 Pick. 199, 16 Am. Dec. 386; Atty-Gen. v. Woods, 108 Mass. 436, 11 Am. Rep. 380; Atty-Gen. v. Boston & L. R. Co. 118 Mass. 345; Martin v. Evansville, 32 Ind. 85; Bainbridge v. Sherlock, 29 Ind. 364, 95 Am. Dec. 644; Diedrich v. Northwestern U. R. Co. 42 Wis. 248; Walker v. Shepardson, 2 Wis. 384, 60 Am. Dec. 423, 4 Wis. 486, 65 Am. Dec. 324; Dutton v. Strong, 66 U. S. 1 Black, 23, 17 L. ed. 29; Atlee v. Northwestern U. Packet Co. 88 U. S. 21 Wall. 389, 22 L. ed. sin River Imp. Co. v. Lyons, 30 Wis. 61; Jones v. Pettibone, 2 Wis. 319. This power of the Legislature to make such rules and regulations as it may see proper to impose for the protection of the rights of the public was directly recognized and assented to by the Supreme Court of the United States in Yates v. Milwaukee, 77 U. S. 10 Wall. 497, 19 L. ed. 984. The Supreme Court of Michigan has made no holdings inconsistent with the views above expressed. Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209, holds the test of a navigable river to be its capacity for valuable floatage, irrespective of the fact of actual public use, or of the extent of such use. The above doctrine has not been qualified in the case of Grand Rapids Boom, Co. v. Jarvis, 30 Mich. 308. Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435, holds that all rivers and streams are subject to the same general rights which the public exercises in highways by land, and which they possess in navigable waters. Tyler v. People, 8 Mich. 320, simply determined that the term "navigable waters," as used in $5944 of the Compiled Laws, has the same meaning as in the ordinance of 1787, and is not limited to waters where the tide ebbs and flows. Rice v. Ruddiman, 10 Mich. 125, holds that the doctrine laid down in Lorman v. Benson. 8 Mich. 18, 77 Am. Dec. 435, is applicable to Lake Muskegon. All that that case decides is that the riparian proprietor is entitled to all the control of the bed of the river which can be exercised without damage to the public interest. Ryan v. Brown, 18 Mich. 196, 100 Am. Dec. 154, has no bearing on the matter before this court. Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182, though not strictly in point, recognizes the right of the Legislature to establish docking lines. Thunder Bay River Boom. Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184, was a case be tween private parties. Lincoln v. Davis, 53 Mich. 375, 51 Am. Rep. 116, recognizes the right of the State to provide for the establishment of a line beyond which private erections cannot be maintained on navigable streams. Fletcher v. Thunder Bay River Boom. Co., 51 Mich. 277, simply holds that riparian rights, unless expressly limited, extend to the middle of the navigable channel, and cover any shallows or middle ground not shown in the government surveys, but lying between such channel and the shore. Webber v. Pere Marquette Boom. Co.. 5 West. Rep. 575, 62 Mich. 626, has no bearing on the precise point in question. Benjamin v. Manistee River Imp. Co., 42 Mich. 628, recognizes the right of the State to regulate navigable streams. Morse, J., delivered the opinion of the court: Grand River is one of the largest and most important inland streams of the State. It is a upon which for many years logs and lumber have been floated from the pineries to the lake at Grand Haven, or to mills at various points upon the river bank. It has never been navigable for boats, except canoes and bateaux, above Lyons, and no steamboats have been above the rapids at Grand Rapids for many years. Small steamboats have run between the mouth and the City of Grand Rapids, and, with the aid of government appropriations, the river, below the rapids at that City may be made to be a water-way of great commercial utility; but above the rapids it has nearly served its usefulness as a navigable stream, except for small pleasure boats. The running of logs, lumber and timber upon it is no longer of consequence, on account of the exhaustion of the forest supply of easy access to it and its tributaries. But it will ever be an important public stream, and its navigability for pleasure is as sacred in the eye of the law as its navigability for any other purpose. Its waters empty into Lake Michigan, and from thence flow into the St. Lawrence and to the sea; and under the Ordinance of 1787, as well as the laws of our State, it must be regarded in the main as a public river and a common highway. It passes through the City of Grand Rapids, dividing the place into two parts, known as the "East" and "West" sides. "The Rapids" take up within the city limits about two miles of the river. The fall of the river bed is such that the water, in the natural state of the river, flowed with such velocity at a shallow depth, among numerous rocks and boulders, over these rapids, as to entirely prevent any navigation, except with canoes; and it was always with great difficulty that one of these could be poled up the stream. The character of the underlying soil of the river here is rocky, ledge rock between the dam and Bridge Street, and below that it is composed of clay boulders and gravel, with ledges of rock occasionally cropping out. There never has been a steamboat up or down these rapids but once, and then it had to be drawn up by oxen, horses, and Indians. Logs could never well be floated down without improvements of the channel. The rapids, in a state of nature, served no useful end in any kind or method of navigation. Upon the east bank of the river, and below the dam, extensive encroachments have been made by property owners, the first beginning of such encroachments dating back many years, and almost from the first settlement of the country; and made lands, and buildings upon them, of the value of millions of dollars, are now located in the old river bed upon that side. The defendant, William T. Powers, in 1866, was the owner of the west bank of the river from a point above the present dam down to a point below the Grand Rapids & Indiana Railroad bridge. The river near by, and within the city limits, is spanned by seven bridges, in the following order, from the north to the south: The Detroit, Grand Haven & Milwaukee Railroad bridge, Leonard-Street bridge, Sixth-Street bridge, Bridge-Street bridge, Pearl-Street bridge, Grand Rapids & any draw or openings for the passage of boats, Indiana Railroad bridge, Fulton-Street bridge, Mr. Powers commenced the building of a wall and Chicago & West Michigan Railroad in the stream. The wall was built of stone, bridge. Five of these are maintained by the land about four feet wide; and the defendant merce, for the floating of vessels, boats, rafts, to be the authority of the Legislature in respect and logs. The bill prays that the defendant to establishing such lines, it cannot certainly may be temporarily, and also permanently, be done without notice to property owners, admits that he had constructed said wall to about the following dimensions: "Commencing at or near the southerly end of the wasteweir of the West-Side canal, so called, in said City, near the dam across said Grand River; thence extending southeasterly 66 feet, more or less, to a point just about 45 feet east of the said pretended dock and building line so pretended to be established by the board of public works; thence extending southerly on a line which, if extended, would meet the public bridge over said Grand River at East Bridge Street, in said City, at a point about thirty feet east of said pretended dock and building line." He also admits that he intends to build said wall from the dam to Bridge Street, and for his own purposes, and that the same is and will be outside the said dock-lines. The City of Grand Rapids files its bill of complaint in the Superior Court of Grand Rapids, in chancery, basing its right for relief upon the Legislative Act aforesaid, and the action of the board of public works and the common council, under the authority given these bodies by such Act, and claiming first, that the structure was unlawful by reason of such Act and the proceedings under it; second, that such wall is of great damage and detriment to the public use of the stream, as it would greatly narrow the natural channel, and impede the flow of the water therein, and in times of high water would cause the waters of the river to be held back, and overflow and flood various portions of the City and its public streets, thereby causing great public and private damage, and occasion sickness to the inhabitants of the City by causing the ground thus overflowed to be damp and foul; third, that it will interfere with the public use of the river, and its value for the purposes of com tion, or the private right of other owners of the river bank, had it not been for the Act of the Legislature in question, and the subsequent proceedings of the authorities of the City of Grand Rapids under and by virtue of such Act. The Ordinance of 1787 cuts no particular figure in this case, because, under the decisions of the federal courts, as far as the general government is concerned, the rights of riparian owners on the stream, mentioned or embraced by said ordinance, must be determined according to the law of the State within which they are situated. St. Louis v. Myers, 113 U. S. 566, 28 L. ed. 1131; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Willamette Bridge Co. v. Hatch, 125 U. S. 1, 31 L. ed. 629. Grand River must be treated the same as any other navigable stream under the law of our State in the solution of this question, having regard, however, to its character as a stream considered at the point towards which this legislation is directed, and where the rights involved are located. In the court below, the City seems to have rested its case entirely upon the validity of this dock-line legislation, and proceedings taken under it, and no particular effort was made to show that the wall was or would be injurious to either public or private rights. The dock-line, as established, cannot be sustained for two reasons: First. The persons owning the banks of the river in fee-simple, and having absolute property in the river bed, subject only to the public right of navigation, were not notified of the proposed action of the board of public works, and had no hearing upon the establishment of these dock-lines. The fixing of these lines was an ex parte and arbitrary proceeding, involving the rights of property owners, upon which they have never had a day in court. Whatever may be held enjoined from building the wall, or any other wall outside of the said dock-lines, and that he be decreed to remove said stone wall by him constructed. The defendant, answering, avers that, by virtue of his riparian rights, he owns the soil and bed of Grand River to the center thereof; that he has a right to make such use of the bed of said stream within his said ownership as he sees fit, provided only that he does not interfere with the public use of said stream for the purposes of navigation, or with the rights of other riparian owners upon its banks; and denies that this dam so built, or as it is intended to be constructed, interferes at all with the public use of said river, or with the rights of other riparian owners; and further avers that the same, when completed, will be a benefit rather than a damage to the public and all concerned. It is admitted that, under the settled law of this State, the defendant is the owner, by virtue of his riparian rights, to the soil of the river bed to the middle of the stream. It must also be conceded that he would have had a right to build this wall, and to reclaim for his own use the land between it and the old west shore of the river, if such building of the wall and reclamation of the land did not interfere with the public right of naviga and opportunity of a hearing accorded to them. This would be despotism, and without due process of law no man's rights can be submitted, under a constitutional government, to the discretion of anyone without notice or hearing. Robison v. Miner, 68 Mich. 549; Frazee's Case, 63 Mich. 396, 6 West. Rep. 140. Second. The dock-line as established encroached upon the shore-line of defendant, and the ordinance of the common council, therefore, prohibits him from building upon and occupying his own land, which has never been covered with water. The testimony of the city engineer, Mr. Collar, a witness for the complainant, shows, on crossexamination, that the dock-line on the west side of the river in many places runs upon and along the east edge of the top surface of Mr. Powers' canal for some distance. At some points it is nine feet, and at others more, west from the water line of the river at ordinary stages, and at the south end of the canal the dock-line cuts off a strip of main-land of some feet in width, and a part of the main-land shore of the river. This dock-line as fixed runs through buildings, and cuts off a part of the Crescent Mills, which have been built more than twenty years, and passes through other buildings. It must be held that the Legislature has no power to extend dock-lines upon the natural shore or bank of the river, 1 or to authorize the municipality to forbid the owners from building upon such shore or bank. This would be taking private property for public use without compensation, which is forbidden by our Constitution. For these reasons alone the bill in this case must be dismissed, as there is nowhere in the evidence any showing that the building of the wall will be of any damage to the public use of the river for the purposes of navigation, or any injury in any way to the rights of the public or of private persons. But the question of grave concern remains, to wit, what are the rights of the defendant as a riparian owner in this river, and what control can the municipality under authority of the Legislature lawfully exercise over such rights? And it seems to me desirable that this question be settled, as it is conceded to be an open one, as far as the courts of this State are concerned, and one of great moment to the public as well as to private interests. In examining this question we must remember that the riparian proprietor in this State holds a different and more extended title to the soil under water of a navigable stream than he does in many of the states of the Union. In this State he owns the soil to the middle of the stream, and has the right to use his land which is covered by water in any way he chooses, provided that he does not seriously injure the public use of the stream, or obstruct or impede navigation, or damage other riparian owners along the stream above or below him. "Any erection which can lawfully be made in the water within these lines belongs to the riparian estate; and the complete control of the use of such land covered with water is in the riparian owner, except as it is limited and qualified by such rights as belong to the public at large to the navigation, and such other use, if any, as appertains to the public over the water. In those waters whose beds are public, and not private, property, erections by riparian owners are unlawful, not because they are nuisances, in the proper sense of the term, but further, as to the ownership and rights of the riparian owner in the bed of streams, Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Rice v. Ruddiman, 10 Mich. 125; Watson v. Peters, 26 Mich, 508; Richardson v. Prentiss, 48 Mich. 88; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182; Marwell v. Bay City Bridge Co. 41 Mich. 466; Pere Marquette Boom Co. v. Adams, 44 Mich. 403; Backus v. Detroit, 49 Mich. 110, 43 Am. Rep. 447; Fletcher v. Thunder Boy River Boom Co. 51 Mich. 277; Webber v. Pere Marquette Boom Co. 62 Mich. 626, 5 West. Rep. 575; Turner v. Holland, 65 Mich. 453, 8 West. Rep. 796; Atty-Gen. v. Ecart Boom Co. 34 Mich. 463. It is contended by the counsel for the complainant that the Legislature of this State has the constitutional right to confer upon the proper authorities of the City of Grand Rapids the authority to establish dock and building lines on the shores and margin of Grand River, and that the defendant had no right to build a wall in the waters of the river beyond the dock and building line established by the board of public works, and to sustain this contention he cites the following: Cooley, Const. Lim. 5th ed. p. 740, *595; 1 Dillon, Mun. Corp. 3d ed. p. 136, *107; Hart v. Albany, 3 Paige, 213, 3 L. ed. 121, 9 Wend. 571, 24 Am. Dec. 165; Com. v. Alger, 7 Cush. 53; People v. Vanderbilt, 26 N. Y. 287, 28 N. Y. 396-398, 84 Am. Dec. 351; Atty-Gen. v. Woods, 108 Mass. 436, 11 Am. Rep. 380; Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182; Atty-Gen v. Boston & L. R. Co. 118 Mass. 346; State v. Sargent, 45 Conn. 358. Cooley says: "Wharf-lines may also be established for the general good, even though they prevent the owners of water-fronts from building out on the soil which constitutes private property." And in the same connection adds: "And the Legislature may prevent the removal of stones, gravel, or sand from the beach for the protection of harbors. This is said to be a just restraint of an injurious use of property which the Legislature have authority because they are encroachments upon the pub- to impose." Cooley, Const. Lim. 6th ed. p. for the good of the Commonwealth and the subjects of the same, and holds that the legislation in question is not an appropriation of property to a public use," but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain." This case is followed in the other Massachusetts cases cited. lic domain, and they are as unauthorized as would be the erection of houses or barns upon public lands away from the water, by an adjoining land-holder. But where the ownership is private, and the public rights are simply easements or privileges upon it, the owner may do what he pleases, so long as it does not injuriously affect the public enjoyment. On land, where roads are laid out of a prescribed width, the law or the authorities having determined that width to be desirable, the right to encroach upon the way cannot be very extensive. But where the way exists in a watercourse, whose boundaries are variable and laid down without human intervention, the extent to which private improvements are compatible with the public use must depend upon the circumstances, and must always be a question of fact. The owner's use is lawful until shown to be unlawful. It is plain enough that there are streams which cannot safely be encroached upon at all, while there are others so considerable that they could not be appreciably injured by a very extensive system of dockage or other erections in their beds." Ryan v. Brown, 18 Mich. 196, 100 Am. Dec. 154. See, 739. This language is plainly used in reference to wharves and harbors upon navigable water, and for the purposes of navigation by boats and vessels. Dillon says: "The right of riparian proprietors in respect to the erection of wharves are subject to such reasonable limitations and restraints as the Legislature may think it nec essary and expedient to impose; therefore it is competent for the Legislature to pass acts establishing harbor and dock lines, and to take away the rights of proprietors to build wharves on their own lands beyond the lines, even when such wharves would be no actual injury to navigation." 1 Dillon, Mun. Corp. 3d ed. § 107. This language has also evidently the same application. In State v. Sargent, 45 Conn. 358, the owner of the land took title only to high-water mark. The fee between high and low water mark was in the State in trust for the public. It was held that the owner of the shore might construct wharves upon the soil below high water mark, but in so doing must conform to the regulations of the State; and it is said that the duty of protecting the paramount right of navigation rests upon the Legislature, and they are to determine for themselves by what methods and instruments they will discharge it. It is further said that the enactment of laws restraining proprietors of the shore from extending wharves or other structures into navigable waters is not the exercise of eminent domain. The public do not appropriate or use any right of the land-owner in the soil of the shore. This is no doubt good law where the land-owner's possessions stop at high-water mark, but it does not apply to the case before us. The New York cases cited also refer to cases where the land-owner had no fee in the land under water; Hart v. Albany, involving rights upon the banks of the Albany Basin, which was a work of the State, and created by it. In People v. Vanderbilt the matter in controversy was the construction of a pier in New York harbor. The case of Com. v. Alger, 7 Cush. 53, deals with the establishment of harbor lines in Boston Harbor, and where, under the Colonial Ordinance of 1647, the proprietors of uplands bounding on the sea have an estate in fee in the adjoining flats above low-water mark, and within 100 rods of the upland, with full power to erect wharves and other buildings thereon, subject, however, to the reasonable use of other individual proprietors and of the public for the purposes of navigation, and subject, also, to such restraints and limitations of the proprietors' use of them as the Legislature may see fit to impose for the to rivers. In both cases the ownership is preservation of public and private rights. It was held that "the Legislature of this Commonwealth has power to establish lines in the harbor of Boston, beyond which no wharf shall be extended or maintained, and to declare any wharf extended or maintained beyond such lines a public nuisance; and statutes establishing such lines, and taking away the rights of the proprietors of flats in a harbor beyond the lines to build wharves thereon, even when there would be no actual injury to navigation, although providing no compensation The learned counsel also contends that language has been used in several of the opinions of our own court recognizing the right of the Legislature to establish wharf and dock lines, but admits that the question in this case is still an open one, as far as this court is concerned. The cases in which this matter have been touched upon are: (1) Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435. In the course of the opinion Mr. Justice Campbell said: "It is urged that this ruling will interfere with the improvement of rivers, and disturb the title of islands. But these objections are not well taken. The public authorities can regulate water highways, as well as land highways, although the soil of neither belongs to the State." (2) Rice v. Ruddiman, 10 Mich. 126. Justice Christiancy in his opinion at ion says, page 140: "These principles, when applied to Muskegon Lake, can no more interfere with the public right of navigation than when applied Mr. equally qualified by, and subordinate to, the rights of the public. In fact, navigation is much more likely to be benefited than injured by the application of these principles. Wharves and other similar erections are essential to the interests of navigation; and if the bed of the lake to high or low water mark were vested in the State, no private owner could extend a wharf one foot from the water-line without becoming a trespasser, and incurring the risk of losing his improvements, though navigation might be aided, rather than injured, by it; to such proprietors, are not unconstitutional, while, by admitting the riparian ownership, as as taking private property and appropriating it to the public use without compensation, within the meaning of the Declaration of Rights, art. 10, nor as impairing the operation of the grant made by the colonial ordinance, and thus transgressing the prohibition of the Constitution of the United States, art. 1, par. 10, against passing laws impairing the obliga tions of contracts; but such statutes do not affect the right to maintain wharves erected before their passage." By examining the opinion in this case, it will be seen that the grants of lands, since the adoption of this ordinance, which vested, by virtue of it, an estate in fee in the land lying between high and low water mark, were also subject to the proviso that such estate should be used so as not to stop or hinder the passage of boats and vessels, etc., and subject to all such restraints and limitations of absolute dominion over it in its use and appropriation as other real estate is subject to for the security and benefit of other proprietors, and of the public, in the enjoyment of their rights. The court justifies its opinion under the police power of the Legislature, the authority vested in that body to establish all manner of wholesome and reasonable laws, rules, and penalties, not repugnant to the Constitution, as they shall judge to be above explained, individual enterprise is stimu lated to improvement, and the public interest is subserved. The public through their proper authorities have always the right to restrain any encroachments which may be injurious to the public right, and to compel the removal of any obstruction or impediment, as well as to punish the offender, to the same extent as if the bed of the lake were vested in the State." (3) Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182. In this case Mr. Justice Campbell says, at page 184: "The right of docking out, so as to secure the full benefit of the water front, is limited by the rule that it must not seriously impair the right of navigation. In order to prevent any dispute as to what wharfing will be such an encroachment, it has been provided in some of our city charters that the city may fix a dock-line, beyond which such erections shall not extend. In doing this the authorities are supposed to consult the public convenience, and to draw the line in such a manner as to subserve this. It is usual, and practically almost necessary, to make the frontage thus defined follow straight lines of considerable length, avoiding angles as much as possible, and paying no attention to the sinuosities of the shore. Such lines will not necessarily or usually be exactly parallel either |