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Statement of the Case.

waters of Mud Creek bay; and that such decision of the circuit court and of the supreme court has since been a rule of property in Ohio.

Plaintiff further alleges in the reply that in the circuit court of the United States for the northern district of Ohio, western division, on the . . day of January, 1908, in a certain action then pending therein, in which the State of Ohio on relation of Scott Stahl, prosecuting attorney for Ottawa county, Ohio, was plaintiff, and The Winous Point Shooting Club was defendant, the state sought to enjoin the defendant in placing stone piles upon the said premises in the water of said Mud Creek bay, for the reason that said stone piles interfered with the rights of the public to fish in said water; that it filed an answer and cross-petition in said proceeding setting forth that it was the owner of said premises, and setting forth the further rights hereinbefore set forth, and that said court decided that it owned said lands under said water, and had a right to keep and maintain said stone piles thereon, and quieted the title of the defendant in said case as against the state of Ohio and all persons claiming through or under said state, who were enjoined from interfering with the same; and that said judgment and decree remains unreversed and in full force and effect.

And for further reply plaintiff alleges that said premises were surveyed and sold by the United States and state of Ohio, that plaintiff is the owner thereof, as alleged in the petition, and that the claim of the defendants to fish in the nonnavigable waters upon the premises of the plaintiff is a taking

Opinion, per Johnson, J.

of private property for public use without just compensation, contrary to the constitution of this state and of the United States.

The court of common pleas on the trial found upon the issues joined in favor of the defendants and entered judgment accordingly. It found that the defendants, as members of the public, have the right to fish in the waters of Mud Creek bay to the line of demarcation between the water and the land, but that “nothing in this decree shall be so construed to prevent the plaintiff from reclaiming said lands, by filling in the same out to navigable water."

On appeal to the court of appeals that court also found the issues in favor of the defendants and dismissed the petition. This proceeding is brought to reverse that judgment.

Messrs. True & Crawford, for plaintiff in error.

Messrs. Graves, Stahl & Duff and Mr. Malcolm Kelly, for defendants in error.

JOHNSON, J. As shown by their answer defendants claim that the waters which are involved in the present controversy form part of a public bay connected with Sandusky bay, and not part of Sandusky river and Mud creek; that they are navigable in part, and have been continuously and uninterruptedly used by the public for fishing without objection until the plaintiff claimed the right to convert them to its own use.

Defendants claim the right of fishing within the portion of the premises above referred to,

Opinion, per JOHNSON, J.

wherever covered by water, to an extent that marketable fish may be found therein. They admit that the plaintiff is the owner of all the balance of the premises described in its petition, and deny that they have fished, or intended to fish, or have asserted any claim in or to any part of the premises other than as above set forth.

On the issues made by the pleadings the court of appeals found in favor of the defendants and dismissed the petition.

There is an extensive and detailed description of the locus in quo, and its history, included in an agreed statement of facts which covers about twenty pages of the printed record.

The plaintiff is the owner of about twelve square miles of land at the west end of Sandusky bay, a large portion of which is covered by water. Mud Creek bay lies west of a line drawn from Winous Point to Squaw Island and receives the waters of Mud creek. The channel of the creek through the bay has a depth of from five to seven feet, and from the channel the shore shoals to less depths on either side, and the adjoining land becomes low and marshy. When the water is at good stage boats drawing not to exceed three to five feet can pass over it. During the season of vegetation, between June and October, a large part is covered with aquatic vegetation. At a point near Squaw Island, about half way between the mouth of Mud creek and Eagle Island, the Sandusky river, which is a much larger stream, empties into the bay.

The contention of the plaintiff is that the public

Opinion, per Johnson, J.

right of fishing in these waters exists only in the navigable portions thereof. The defendants do not deny the ownership of the land of the plaintiffs, but claim the right to fish within that portion of the bay where marketable fish may be found.

The waters in the particular locality involved in this case furnish an unusual example of the constant conflict between those claiming under a public right of fishing in public waters and those asserting exclusive rights under private ownership. The public rights of navigation and fishery in all public waters have long been recognized and protected in England and in this country.

Professor Angell in his work on Tide Waters says at page 124: "Fishery in the sea, and in the waters which are made to flow inland therefrom by its egress and influence, constituting as it does, a great source of sustentation, has in all ages and in all countries been deemed of such importance, that it has ever been regarded a privilege open and common to all persons.

The Ordinance of 1787 (Section 14, Article IV) contains a provision that “The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that

may be admitted into the confederacy, without any tax, impost, or duty therefor.”

In referring to the title which the several states hold in the lands under the waters of the Great Lakes, the supreme court of the United States, in

Opinion, per JOHNSON, J.


Illinois Central Rd. Co. v. Illinois, 146 U. S., 387, say at page 452: “But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.”

Some matters formerly much in dispute have been settled by adjudications of this court, which simplifies the discussion here.

In Sloan v. Biemiller, 34 Ohio St., 492, it is held that the rule of the English common law, that the owners of land situate on the banks of non-tidal streams, though navigable in fact, are owners of the beds of the rivers to the middle of the stream, is not applicable to the owners of land bounding on Lake Erie and Sandusky bay. The right of fishing in Lake Erie and its bays is not limited to the proprietors of the shores; and the right of fishing in these waters is as public as if they were subject to the ebb and flow of the tide. In the opinion, Judge White says, at page 513: “And although the dominion over and the right of property in the waters of the sea and its inland waters were, at common law, in the crown, yet they were of common public right for every subject to navigate upon and to fish in, without interruption. * were regarded as the inherent privileges of the subject, and 'classed among those public rights de

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