Bott v. Natural Resources Commission
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Full Opinion
BOTT
v.
NATURAL RESOURCES COMMISSION
NICHOLAS
v.
McDANIEL
ATTORNEY GENERAL ex rel DEPARTMENT OF NATURAL RESOURCES
v.
NICHOLAS
Supreme Court of Michigan.
Casey, Cavanaugh & O'Neill for plaintiff Bott.
William C. Nicholas and Caroline J. Nicholas, in propriis personis.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Frank J. Pipp and Terrence P. Grady, Assistants Attorney General, for Director of the Department of Natural Resources, the Department of Natural Resources, the Commission of Natural Resources, and the people.
Fraser, Trebilcock, Davis & Foster, P.C. (by Donald A. Hines and David E.S. Marvin), for defendants McDaniel and Rademacher.
Amicus Curiae:
Peter W. Steketee for Michigan United Conservation Clubs, Inc.
LEVIN, J.
Littoral owners on 75-acre Big Chub Lake (in Bott)[1] and 60-acre Burgess Lake (in Nicholas) *58 seek, with the Department of Natural Resources, over the objections of Bott and the Nicholases, access through connecting creeks to nearby 35-acre lakes.
Bott owns all the land surrounding both 35-acre Linton Lake and the creek connecting it with Big Chub Lake.[2] The Nicholases own 7/8 of the land surrounding 35-acre Dogfish Lake and all the land surrounding the creek connecting Dogfish Lake with Burgess Lake.[3]
*59
*60 The creeks connecting the two lakes are, in both cases, relatively narrow and are shallow. The depth, at one point, is eight inches in Bott[4] and six inches in Nicholas.
The established law of this state is that the title of a riparian or littoral owner includes the bed to the thread or midpoint of the water,[5] subject to a servitude for commercial navigation of ships and logs,[6] and, where the waters are so navigable, for fishing.[7]
In the instant cases, it appears that the creeks connecting the smaller with the larger lakes are too shallow to permit the flotation of logs. The creeks are, therefore, not navigable under the law as it has heretofore been stated, and only the littoral owners have a right to use the lakes.
Prior case law also provides that although there is a navigable means of access, the littoral owner of all the land surrounding a small inland dead-end lake has the sole right to use it. Winans v Willetts, 197 Mich 512; 163 NW 993 (1917).
*61 The only recreational use heretofore recognized by this Court as an incident of the navigational servitude is fishing.[8]
The dissenting opinion would change established rules of property law in the following respects:
(1) It would substitute a recreational-boating test for the log-flotation test of determining navigability stated in Moore v Sanborne, 2 Mich 519; 59 Am Dec 209 (1853).
(2) It would overrule the dead-end lake rule stated in Winans v Willetts.[9]
(3) It would enlarge the recreational use permitted in navigable waters beyond fishing to include "the right to make reasonable use of the lake's surface" for "navigation, fishing, and recreational use".[10]
It is proposed to make the foregoing changes in property law to meet "current public needs".[11] It has not been demonstrated, however, that a change of the law is needed to accommodate the needs of the public or that the proposed changes will, in general, do more than, as in the instant cases, enlarge the recreational access of one group of littoral owners and users who have access to one lake and desire to have access to another lake.
The rules of property law which it is proposed to change have been fully established for over 60 years, and the underlying concepts for over 125 *62 years. Riparian and littoral land has been purchased in reliance on these rules of law, and expenditures have been made to improve such land in the expectation, based on decisions of this Court, that the public has no right to use waters not accessible by ship or wide or deep enough for log flotation, and that, even if there is navigable access to a small inland dead-end lake, the public may not enter over the objection of the owner of the surrounding land, and that the only recreational use recognized by this Court as an incident of the navigational servitude is fishing.
The Legislature can, if it is thought to be sound public policy to enlarge public access to and the use of inland waters, pass laws providing for the enlargement of the rights of the public in those parts of the state where the Legislature finds that there is a shortage of public access to inland rivers and lakes and for the compensation of landowners affected by the enlarged servitude.
In the cases decided in other jurisdictions where a recreational-boating test was approved and applied, the body of water was of sufficient depth and width to permit its actual use for recreational purposes.[12]
The recreational-boating test, applied to a body of water of sufficient width and depth to be usable for recreational purposes, may not differ significantly from the log-flotation test. Adoption of the recreational-boating test, in such a case, might not significantly change or enlarge the servitude imposed by the log-flotation test. In the instant cases, however, the watercourses connecting the smaller with the larger lakes are not of sufficient depth to be used for recreational purposes. There is more water in a wash basin and considerably more in a *63 bathtub than the eight inches in Bott and the six inches in Nicholas at the shallowest points.
What is here sought is not a recreational use of the intervening watercourses, but rather use of them as a means of passage to a body of water which can then be used for recreational purposes. This contrasts with the navigational servitude for the passage of ships and logs, which arose only if the waterway was of sufficient width and depth to permit its use for the commercial purpose thought to justify the servitude. Because the intervening watercourses in the instant cases are not of sufficient width and depth to be used for recreation, subjecting those watercourses to an enlarged servitude cannot be justified on the premise that there is a public need to use the watercourses for recreation in the same sense that there was a public need to use the rivers, lakes, and the larger streams for commercial navigation of ships and logs.
If it is thought that the needs of littoral owners or of the public having access to one navigable lake[13] for recreation on a nearby navigable lake justifies creation by judicial pronouncement of a right of passage between the lakes, it should make no difference whether the intervening waterway can be traversed by canoe or a twig or, indeed, whether there is only a trickle of water or, perhaps, even no water at all. Since the rationale of the proposed right of passage does not require that the intervening waterway be actually usable for recreation, the rationale would justify a further expansion to meet perceived public needs and the creation by judicial pronouncement of a right of *64 passage or portage along a trickle of water, a desiccated gully, or other dry land between nearby navigable lakes.
The precept that a servitude will not be extended beyond the purpose for which it was granted explains the holding in Winans that a small inland dead-end lake is not open to the public, although there is a navigable means of access, if all the surrounding land is in unified ownership. In such a case, no ship can dock, and logs cannot be floated to or from the land without the permission of the owner. Where the owner objects, no use can be made of a right of passage, and, hence, there is no servitude for navigation although there is a navigable means of access to the dead-end lake.
Riparian and littoral owners have the right to share the reasonable use of the waters,[14] but the rights of the public as an incident of the navigational servitude are not coextensive with the rights of riparian and littoral owners. While this Court, in Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926), and Attorney General ex rel Director of Conservation v Taggart, 306 Mich 432; 11 NW2d 193 (1943), recognized fishing as an incident of the navigational servitude in inland rivers and lakes, it has held that fowling and hunting is not,[15] and *65 that the ice belongs to riparian and littoral owners.[16]
This Court has not been called upon to decide whether, and the extent to which, boating, as such,[17] and other recreational uses are incidents of the navigational servitude and whether a distinction should be drawn in that regard between (i) waters in which riparian or littoral owners do not own the bed (the Great Lakes), (ii) waters in which they own the bed and which are navigable in fact (by ship), (iii) waters in which they own the bed and which are qualifiedly navigable (by log flotation), and (iv) assuming adoption of a recreational-boating *66 test, large and small inland rivers and lakes.
Fishing is a quiet sport. General boating and water recreation can, however, be intrusive and jarring.
Even if this Court decides to expand upon Moore v Sanborne by substituting a recreational-boating test for the log-flotation test, and to overrule Winans concerning small inland dead-end lakes, thereby enlarging fishing rights in waters heretofore private because the means of access thereto is not log-floatable or the lake dead ends, it should not assume that, but separately consider when the issue is presented and argued whether, the case has been made to allow general boating and water recreation, as an incident of the navigational servitude, by persons other than riparian and littoral owners on inland waters heretofore inaccessible under established rules of property law.
I
The recreational-boating test is characterized in the dissenting opinion as a natural outgrowth of the rationale of Moore v Sanborne, where this Court expanded the common-law rule that waterways usable by ships in commerce are navigable, to include waterways capable of floating logs or timber.[18]
*67 Moore does not support the claim that public needs other than for commercial use justify expansion of the servitude. In adopting the log-flotation test, Moore advanced the same interests encouragement of commerce and industry as had been encouraged when England expanded the concept of navigability to include inland waters capable of serving as public highways. Moore is replete with references to "valuable floatage" and the "necessities of trade and commerce", and of the need to use the rivers and streams to develop forest and mineral wealth.[19]
The navigable-in-fact commercial shipping test antedating Moore rested on the concept that commercial *68 needs justified public use of inland waters. Moore, drawing on that concept, recognized that Michigan's waterways could be put to commercial uses other than ferrying goods by ship. The log-flotation test reflected this differing commercial reality and a commonly accepted public need.[20] The rationale remained unchanged; navigability turned on commercial use.[21]
Collins and Taggart hold only that the public may fish in streams found navigable under the rule of Moore v Sanborne. Collins and Taggart voiced no dissatisfaction with the log-flotation test, and applied that test to determine the navigability of the streams in question.
II
Prior to Winans, this Court had held in Giddings v Rogalewski, 192 Mich 319; 158 NW 951 (1916), that a lake entirely surrounded by private property was not navigable. Giddings reasoned, on the basis of the rationale of Moore v Sanborne, that a lake unconnected to other waterways could not form part of an aquatic highway for "commerce, trade, and travel * * * by the usual and ordinary modes of navigation" and that thus there was no justification for a navigational servitude.
Although Winans did not elaborate on the reasons for decision, its conclusion is consistent with *69 the rationale of Giddings and Moore.[22] The rationale *70 for creating a servitude for public access to inland waters is for use as highways of commerce. Highways must begin and end. No businessman would guide a ship or logs through waterways without a port of call. A dead-end lake surrounded by property whose owner will not permit a boat to dock cannot be used as a highway.[23] As noted in Giddings, p 325, "[i]t is difficult to conceive of a highway beginning, extending its whole length, and ending, in the interior of the private estate of a single owner."[24]
*71 The public-trust doctrine applies only to navigable waters and not to all waters of the state.[25] The public trust does not attach to lakes unconnected to other waterways or to lakes with only one inlet or outlet held in Winans not to be navigable. In Taggart, p 443, the Court sought to allay concern about the scope of the holding:
"The instant case does not in any way affect very small trout streams on private property which have not been used by the public for logging or for boating; Burroughs v Whitwam, 59 Mich 279; 26 NW 491 (1886);[[26]] nor does it cover private lakes and ponds owned by the abutting property owners. As to such bodies of water, the riparian owner has complete control."
III
It is said that the log-flotation test is an anachronism *72 and is difficult to administer.[27] When this Court examines the need for a change of law, it focuses on whether the proposed change is consonant with widely shared societal values, fairly treats those who have relied on past law, and is appropriate for judicial implementation.[28]
A
It is asserted that the recreational-boating test will meet a public need for access to recreational waters. Even if one accepts the premise that public need justifies such a change in the law, the public's need for expanded recreational uses stands before this Court as a bare, undocumented claim without support in the record or in any materials to which our attention has been directed.
*73 It has yet to be shown that the lakes, rivers, and streams heretofore opened to the public are not adequate to meet public needs.[29] Nor is there evidence that a recreational-boating test would significantly increase the recreational opportunities of those who are unable to use the present waterways. The number of private waters which the recreational-boating test would make available, and whether those waters would become accessible to many persons now inadequately served, is unknown.[30]
The argument based on public need assumes that recreational values should be given paramount consideration and makes no attempt to consider competing public values. Recreational use *74 has a cost. The inland waters aid the nesting of wildfowl and the propagation of aquatic life.[31] An expansion of public use would also affect the communities where the waters are located.
The importance that society attaches to the various public values, like the importance that society attaches to the need for expanded recreational uses, cannot be gauged by this Court with accuracy. A convincing demonstration has yet to be made that the recreational-boating test implements a widely shared public value that should predominate over competing public values. An enduring consensus has not emerged favoring the proposed course of action:
"As law embodies beliefs that have triumphed in the battle of ideas and then have translated themselves into action, while there still is doubt, while opposite convictions still keep a battle-front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field." Holmes, "Law and the Court", in Collected Legal Papers, pp 294-295 (1920).
B
Our attention has been directed to "growing numbers of states"[32] that have reportedly adopted a recreational-boating test.
Some of the decisions cited as adopting this test allow evidence of suitability for recreational boating to be considered together with other evidence in deciding whether a waterway is fit for commercial use, and cannot properly be read as holding *75 that waterways fit solely for recreational use will be deemed navigable.[33]
A number of the decisions neither refer to the recreational-boating test directly, nor can one infer from reading the opinions that it has been applied sub silentio to produce findings of navigability.[34]
The case most frequently cited as authority for the recreational-boating test, Lamprey v State, 52 Minn 181; 53 NW 1139 (1893), endorses the test in dictum; and subsequent Minnesota decisions have taken pains to point out that this dictum has no precedential value.[35]
Six states have adopted the recreational-boating test directly or de facto. In three, the recreational-boating test is not so much an outgrowth of common-law *76 method as it is of either a constitutional or statutory commitment to public access to inland waters.[36]
Turning to the three states that have adopted a recreational-boating test as a matter of judicial decision,[37] we note that the test has not been applied to provide the public with access to narrow, shallow streams, themselves unfit for meaningful recreation.[38] The stated purpose of the recreational-boating *77 test is to identify waterways fit for recreational use.[39]
The creeks connecting Linton and Big Chub Lakes and Dogfish and Burgess Lakes are narrow and shallow. At many spots, less water is to be found than in a bathtub. They are narrow, and pleasure boats can be steered through them only with difficulty. While there are those who would like to use these creeks to reach Linton or Dogfish Lakes, the creeks are not themselves suitable for recreational canoeing or boating.
C
Even were it granted that a need for expanded public recreational uses is a value that has hardened into social consensus, we cannot ignore the conflict with another well-recognized norm, the unfairness of eliminating a property right without compensation.
This Court has previously declared that stare decisis is to be strictly observed where past decisions *78 establish "rules of property" that induce extensive reliance.[40]
The justification for this rule is not to be found in rigid fidelity to precedent, but conscience. The judiciary must accept responsibility for its actions. Judicial "rules of property" create value, and the passage of time induces a belief in their stability that generates commitments of human energy and capital.
The proposed changes in law would not have a purely theoretical effect. It is said that adoption of the recreational-boating test will respond to the asserted increase in the public's need for access to recreational waters and yet not produce quantitatively different results than the log-flotation test. These two propositions are irreconcilable. If the new test is adopted to meet a need which the former test is not able to satisfy, there necessarily must be some quantitative difference when the two tests are actually applied or there is no need for a new test.
Recreational boats, such as kayaks and canoes, displace far less water than logs, are highly maneuverable, and can travel through waterways unfit for floating logs to market. Michigan is a state of numerous inland waters, many of which are likely to have physical characteristics similar to those of the creeks connecting the lakes in the instant cases. Adoption of a recreational-boating test would subject many formerly private inland waters to what are in essence recreational easements.
Public access to these previously non-navigable waters will diminish enjoyment of surrounding property. Many of those who own such property *79 are vacationers who acquired the property for peaceful retreat. A rule which opens these waters to curious boaters and enterprising fishermen may render the property unfit as a refuge or retreat. Even if these interests are thought to be too intangible to warrant protection, it cannot be denied that some landowners have invested their savings or wealth in reliance on a long-established definition of navigability.[41] It also cannot be denied that the heretofore private character of the waters adjacent to their property significantly adds to its market value.
Vacationers are not manufacturers who can pass on their losses to a large class of consumers. Techniques to safeguard past reliance on prior law such as prospective overruling are unavailable where property rights are extinguished. Prevention of this hardship could be avoided through compensation, but this Court has no thought of providing compensation to riparian or littoral owners for the enlarged servitude and the resulting reduction in amenities and economic loss.
Proponents of the recreational-boating test do not deny that its application will inflict loss on riparian or littoral owners. Nor do they deny that this loss may be significant. Instead, it is argued that the preconditions for application of the "rules of property" doctrine are not satisfied.
It is said that Michigan law is not "well-settled" in this area and hence no established property rights are destroyed by a shift to a recreational-boating test. Since Moore, the navigational servitude has only extended to waters meeting the commercial-shipping or log-flotation tests. The rule of Winans has been in force for over 60 years. The *80 rules enunciated in Moore and Winans have been applied for over 125 and 60 years, respectively, periods long enough to give rise to a fixed conception of the public's navigational rights.
In stating the log-flotation test of navigability the Moore Court did indeed establish a rule of navigability which varied from the English common law and the common law of many jurisdictions in the United States. In doing so, however, the Court was not overruling any binding precedent, for there was none on the issue at that early date in Michigan's history. The Court in Moore was writing on a blank slate we are not.
The argument is made that the present tests for navigability are not "rules of property" on the premise that the Legislature could enact a recreational-boating test without providing compensation. It is contended that there is no "taking" because the riparian or littoral owner would still possess title to the bed of the waterway, albeit qualified by the public's enlarged right to navigate. But this Court has said that "riparian rights are property".[42] The view that riparian rights are property is consistent with this Court's approach to the "taking" question. The presence or absence of title *81 has not been dispositive. Compensation has been awarded where there has been a significant reduction in the use and enjoyment of property stemming from governmental action.[43] The recreational-boating test would deny riparian and littoral owners the right to exclude others, a right inherent in the concept of private property.[44] The *82 "rules of property" doctrine is a judicial rule of fairness, not a clause in the constitution.
The instant cases are said to fall within the exception to the "rules of property" doctrine made by this Court in Hilt v Weber, 252 Mich 198; 233 NW 159 (1930), which is read as allowing courts to overrule decisions establishing "rules of property" that themselves disregarded precedent.
This reading of Hilt is curious. Far from displaying an insensitivity to those who rely on court-made "rules of property", Hilt shows a high degree of concern for protecting long-standing property interests.
In Hilt, a recent holding in the Kavanaugh Cases[45] that owners adjacent to the Great Lakes hold title to land running along the meander line but not to the waters' edge was re-examined and overruled. The Hilt opinion demonstrated at some length that the Kavanaugh Cases, decided just two years and seven years earlier, had misanalyzed prior precedent. Especially pertinent is the Court's response to the policy arguments made by those who favored retention of the disputed land for the public:
"The doctrine of stare decisis has been invoked. The point has much force. Titles should be secure and property rights stable. Because a judicial decision may apply to past as well as to future titles and conveyances, a change in a rule of property is to be avoided *83 where fairly possible. But where it clearly appears that a decision, especially a recent one, was wrong and continuing injustice results from it, the duty of the court to correct the error is plain. The Kavanaugh Cases were decided in the recent years in 1923 and 1928, respectively. They enumerated principles at variance with settled authority in this State and elsewhere, under which real estate transactions long had been conducted and given legal effect by courts and citizens, and themselves, disregarded the doctrine of stare decisis by overruling the Warner Case [People v Warner, 116 Mich 228; 74 NW 705], decided in 1898. The rules they stated are not as old as the rules they abrogated. When to that are added the considerations that they operated to take the title of private persons to land and transfer it to the State, without just compensation, and the rules here announced do no more than return to the private owners the land which is theirs, the doctrine of stare decisis must give way to the duty to no longer perpetuate error and injustice." Hilt, p 223. (Emphasis supplied.)
As here, the state invoked the recreational needs of the public, arguing that they outweighed the property loss mistakenly inflicted by the Kavanaugh Cases. The Court responded:
"With much vigor and some temperature, the loss to the State of financial and recreational benefit has been urged as a reason for sustaining the Kavanaugh doctrine. It is pointed out that public control of the lake shores is necessary to insure opportunity for pleasure and health of the citizens in vacation time, to work out the definite program to attract tourists begun by the State and promising financial gain to its residents, and to conserve natural advantages for coming generations. The movement is most laudable and its benefits most desirable. The State should provide proper parks and playgrounds and camping sites and other instrumentalities for its citizens to enjoy the benefits of nature. But to do this, the State has authority to acquire land by gift, negotiation, or, if necessary, condemnation. There *84 is no duty, power, or function of the State, whatever its claimed or real benefits, which will justify it in taking private property without compensation. The State must be honest." Hilt, p 224.
The Court's experience following the Kavanaugh Cases suggests that we should not casually enlarge the rights of the public at the expense of property owners who have relied on prior decisions of this Court. The Kavanaugh Cases were overruled because, among other things, they worked severe injustice and constituted a judicial "taking" without compensation.
In Hilt, this Court squarely confronted the question of the relative priority that should be given to claims of public recreational need and to claims that existing property rights should not be taken without compensation, and re-established prior precedent protective of long-standing property rights.
D
Adjudication without an evidentiary record provides no assurance that the information needed for a wise decision will surface or that the relative strength of competing societal values can be accurately measured. The Legislature has the resources to make a comprehensive inquiry into the public's need for increased water recreation and the effect of a change in the law on existing property rights. As a majoritarian body, the Legislature can provide a forum that will attract those affected and, without fearing a loss of legitimacy, proceed to take the measure of their convictions.
The obligation to pay compensation to owners for a governmental taking will discipline legislative inquiry by assuring that the loss inflicted on private parties will be considered, and that recreational *85 access will be granted only if indeed highly prized. That obligation will further assure that those whose property is seized will receive fair treatment. Providing compensation will also vindicate riparian or littoral owner reliance on this Court's past decisions.[46]
Finally, legislative consideration allows a solution capable of responding to a broader range of public needs and one far more sensitive to the dislocation of private interests. A recreational-boating test would operate indiscriminately in waters both fit and unfit for recreational use. The Legislature can exercise its powers selectively, it can identify those waters most suited for recreational use, including lakes that do not have inlets or outlets,[47] and avoid unnecessary seizures. This will not only increase the likelihood of successfully meeting the public need, but prevent gratuitous economic loss.
*86 A judicial recreational-boating test would increase the utilization of the inland waters and do nothing to protect them. Many of Michigan's lakes are in wilderness areas, and enlarged public access might destroy their scenic beauty. Other lakes might be so attractive that they would be overutilized.[48]
IV
Faced with an uncertain societal consensus, an inability to compensate riparian owners for the loss of a valuable right, and the need for a comprehensive legislative solution, we believe that this Court is not an appropriate forum for resolving the competing societal values which underlie this controversy.
We affirm in Bott and reverse in Nicholas.
FITZGERALD, C.J., and KAVANAGH and COLEMAN, JJ., concurred with LEVIN, J. *87 and decision, present broad issues for resolution concerning the test of navigability and the scope of permitted public uses of our inland lakes and streams.
In the Bott case, a declaratory judgment and a permanent injunction entered on January 25, 1977, in response to Mr. Bott's motion for partial summary judgment under GCR 1963, 117.2(3). The judgment declared a lake situated on Mr. Bott's land to be a private body of water from which the public could be excluded. On December 28, 1977, the Court of Appeals affirmed. This Court granted leave to appeal and directed the parties to include among the issues to be briefed:
"[W]hether Linton Lake is a private inland lake?" 406 Mich 1006 (1979).
In the Nicholas case, following a two-day bench trial and the filing of a written opinion, a declaratory judgment and a permanent injunction entered on December 12, 1977. The judgment declared a creek running through land owned by William Nicholas to be a navigable stream. A bridge obstructing passage on the stream was ordered removed and further obstructions were enjoined. By opinion dated January 16, 1979, the Court of Appeals affirmed the trial court's judgment. 88 Mich App 120; 276 NW2d 538 (1979).
This Court granted leave to appeal and directed the parties to include among the issues to be briefed:
"1. [W]hat is the legal test and measure of whether a body of water is `navigable' so as to impose a public trust on such body, and
"2. [D]id the Court of Appeals properly determine *88 that Burgess Creek was `navigable'?" 406 Mich 1007 (1979).
FACTS
Bott
John Bott is the owner in fee of 800 acres of land located in Otsego County, Michigan, which he maintains as a vacation place. Entirely within his property is a body of water known as Linton Lake which is approximately 35 acres in size. Linton Lake has no inlet, being spring-fed, but has an outlet connecting it to Big Chub Lake. Big Chub Lake is approximately 75 acres in size and has numerous riparian owners and a public access site.[1] As well as encompassing Linton Lake, Mr. Bott's property surrounds both sides of the outlet. His property line extends beyond the outlet into Big Chub Lake making him a riparian owner on Big Chub Lake.
The present controversy arose shortly after Mr. Bott purchased the property and was informed by local authorities that the public's access to Linton Lake could not be blocked. Thereafter, Bott filed suit seeking a declaratory judgment that Linton Lake and its outlet connecting it to Big Chub Lake were non-navigable, private bodies of water from which the public could be excluded.
Bott filed a motion seeking summary judgment. An affidavit filed in response to Bott's motion indicated that the outlet is a natural channel 240 feet in length varying in width from 100 feet at its widest point to 15 feet at its narrowest point. The *89 depth of the water is approximately 2 feet except for one point where it is 8 inches deep.[2] Another affidavit indicated that the outlet is boatable by small oar- and motor-propelled craft without making contact with the banks or bed of the channel.[3] Partial summary judgment was granted in favor of appellee Bott under GCR 1963, 117.2(3). The order of the trial court declared Linton Lake to be a private, non-navigable body of water from which the public could be excluded. Further, the judgment expressed no opinion as to the navigability of Linton Lake's outlet.
Nicholas
William and Caroline Nicholas are owners in fee of approximately 120 acres of land located in Montcalm County, Michigan, which they maintain as a vacation place. The Nicholas property surrounds both sides of Burgess Creek, the navigability of which is disputed. Burgess Creek lies upon a watercourse involving several bodies of water.
At one end of the watercourse lies Burgess Lake, a body of water approximately 60 acres in size which has 50 riparian owners and no public access site. The lake has no inlet, being spring-fed, but has an outlet which is Burgess Creek. The creek is a natural watercourse approximately 800 feet long. From bank to bank, the creek varies in width from 12-1/2 feet at its narrowest point to over 80 *90 feet at its widest point. Located at the creek's widest point is a bog which borders an open channel of water 7-1/2 feet in width. The creek has a silty or soft bed and its depth varies from a maximum of 15 inches to a minimum depth at one point of 6 inches. The average depth of the stream appears to be from 8 to 10 inches.[4]
Burgess Creek empties into a 35-acre body of water known as Dogfish or Pine Lake. Dogfish Lake has an outlet, referred to as Dogfish Creek, which flows into a 3- to 5-acre pond called Salt Springs or Mill Pond. The outlet from this pond eventually flows past a waterwheel, through a culvert under Baker Road and into Wabash Creek and Morgan Lake.[5]
The Nicholas property includes land fronting on Burgess Lake and the land through which Burgess Creek flows. Their land also includes 7/8 of the property surrounding Dogfish Lake and the land on both sides of Dogfish Creek to a point approximately halfway between Dogfish Lake and Mill Pond.
Mr. and Mrs. Nicholas purchased the property in 1959 or 1960 and built a cottage on Burgess Lake. In the fall of 1970, Mr. Nicholas constructed a footbridge spanning Burgess Creek at a point close to where Burgess Lake flows into Burgess Creek. The bridge lies 6 inches above the water and effectively obstructs passage on the stream by *91 small craft, although evidence was introduced which showed that some people continued to use the stream by pulling a boat over the bridge.
On August 1, 1975, Mr. and Mrs. Nicholas filed suit against appellees McDaniel and Rademacher alleging trespass by appellees' children. Mr. and Mrs. Nicholas sought a declaratory judgment that the creek was private and non-navigable and requested a restraining order preventing further passage on the stream.
On October 14, 1975, the State of Michigan, through its Department of Natural Resources (DNR), filed suit against Mr. and Mrs. Nicholas. DNR sought a declaratory judgment that Burgess Creek was navigable and thus open for passage by the public, including riparians on Burgess Lake. DNR requested removal of the bridge and an injunction restraining further obstructions of the stream by Nicholas.[6]
A trial was conducted and testimony was heard from numerous witnesses concerning the dimensions and navigability of Burgess Creek. The testimony of all witnesses indicated that one could traverse Burgess Creek from Burgess Lake to Dogfish Lake by small boat either in a rowboat propelled by motor or oars, or in a canoe propelled by paddles.
The testimony indicated that small boats had *92 traversed Burgess Creek since the early 1950's up to the time of trial. Most of the witnesses testified to having traversed the creek only as far as Dogfish Lake. Others stated they traveled as far as the culvert located under Baker Road. One witness testified to making a trip to Morgan Lake. Most witnesses testified to making an average of one to three trips per summer through the creek.
The point which divided the witnesses was the ease or difficulty with which the creek could be navigated by small craft. Appellant Nicholas and his witnesses testified that boaters had to push and pole their way through the stream.[7] Other witnesses testified that a boat could be freely floated on the creek except for a point close to the entrance of the creek where navigation around a log and under low-lying branches was necessary. Some witnesses stated that at another point halfway down the stream they had to push or pull their boats over a large log submerged in the water. Others testified to floating, paddling, and motoring parts of the stream without making contact with the banks or bed of the stream.
*93 The trial court weighed the conflicting evidence and found that the creek could be traversed freely by boats and canoes propelled by oar or paddles and in some portions by motors. The judge found the creek to be navigable based on its being boatable. The court also found the entire watercourse extending from Burgess Lake to the culvert under Baker Road to be navigable by small craft. The bridge was ordered removed and further obstructions enjoined.
DISCUSSION
Both cases squarely present the issue of what the test is for determining the navigability of our inland waterways so as to impress such waters with the public trust. Resolution of this question is to be found through close examination of case law.
I
Some early English jurists believed that only those waters affected by the ebb and flow of the tide were navigable. In such waters the public presumptively had rights of navigation and fishing. It was thought that these public rights attac