TOLEDO LIBERAL SHOOTING CO. et al. v. ERIE SHOOTING CLUB, 90 F. 680

BURTON, Circuit Judge, after making the foregoing statement of facts, delivered the opinion of the court. This decree must be affirmed. The contention that the waters covering the submerged part of the lands claimed under lease by the Erie Shooting Club are navigable, and therefore subject to the public right of navigation, is not supported by the evidence in this record. The fact that this so-called “bay” was surveyed and platted as swamp land by the government affords a strong presumption against the navigability of the water thereon.

This survey was under the authority of the government, which subsequently conveyed the lands so platted to the slate of Michigan as swamp lands, under the act of September, 1850, known as the “Swamp Land Act.” That the state subsequently conveyed them is a further circumstance tending to establish that no public easement had or could exist therein by reason of the navigability of the waters thereon. Just where the so-called “bay” opens into the lake, at its southeast end, there is water navigable for ordinary commercial purposes. This channel rapidly shallows as the bay is penetrated.

From a line drawn east and west through the center of sections 34 and 35 to the extreme northern end of this bay, a distance of over three miles, the average depth of water will not exceed two feet. There are places in which it is deeper, but in these it rarely exceeds three feet. There are large sections within the area mentioned, where the water does not average twelve inches; and considerable parts, especially in

section 27, where it is not six inches in depth, except under unusual winds or freshets. An effort has been made to show that there are deeper and navigable channels .permeating this shallow marsh. Several small creeks empty into this bay. The channels of one or more of these may be traced with difficulty in parts of the marsh. They soon cease to have any defined banks, and are lost in the wider waters, whose level is affected by the fluctuations of the lake. It is impossible upon this evidence to say that any one of these so-called “channels” is navigable.

Their continuity is insufficient, and the proof as to their course and depth is altogether too slender and contradictory to justify a reversal of the decree below. From June to October, this body of water is covered with a mass of aquatic vegetation, such as Wild rice, rushes, etc. It is then impenetrable, save by the laborious method of punting. At no time is the greater part of this marsh susceptible of supporting “commerce,” in any reasonable sense of the term.

That the water stands permanently, and that it has a deep opening into Lake Erie, does not establish that this shallow body of water is capable of sustaining commerce, or is burdened with a public use. It is nothing more or less than a marsh opening into the lake. To be navigable in law, it must be navigable in fact; that is, capable of being used by the public as a higlrway for the transportation of commerce. None of the characteristics of commercial navigability are shown here. It is the natural feeding ground of the duck and other water fowl.

In their pursuit by canoe and fiat-bottomed ducking boats the water may be navigated. That is not commerce, .and proves nothing. The same test would convert every pond and swamp capable of floating a boat into a navigable stream or lake. This bay is not a highway, never has been, and can never be. At the common law the term “navigable” had a technical meaning, and was applied to all streams or bodies of water in which the tide ebbed and flowed. All such waters were public.

That definition is not applicable in this country, and all waters are held navigable in law, and subject to a public use, which are by their character capable of use as highways, for purposes useful to trade or agriculture. It is the capability of being navigated for useful purposes, which is the test. Gould, Waters, § 54, and cases cited; Barney v. Keokuk, 94 U. S. 324; The Daniel Ball, 10 Wall. 557-563; The Montello, 20 Wall. 430-441; Moore v. Sanborne, 2 Mich. 519; Chisolm v. Caines, 67 Fed. 285; City of Grand Rapids v. Powers, 89 Mich. 94, 50. N. W. 661; Hall v. Alford (Mich.) 72 N. W. 137; Rowe v.

Bridge Corp., 21 Pick. 344; Attorney General v. Woods, 108 Mass. 436. In the case of The Montello, cited above, the court said: “The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river-, rather than the extent and manner of that use. If it be capable in its natural state of- being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.

Vessels of any kind that can lioat upon the water, whether pro-lielled hy animal power, by the wind, or by the agency of steam, are. or may become the mode by which a vast commerce can be conducted; and it would be a mischievous rule that would exclude either in determining the navigability of a river.

It is not, however, as Chief Justice Shaw said, ‘every small creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable; but, in order to give it the character of a. navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture.’ ” If this is a private property, it must follow that appellants have no right to trespass thereon. Their own property being inaccessible, save by going over that of appellee, entitles them to a way of necessity. That they obtained by the decree below. Decree affirmed,