Opinion, per JOHNSON, J. * * nominated jura publica, or jura communia, and thus contradistinguished from jura coronae, or private rights of the crown.' The sovereign was the proprietor of these waters, as the representative or trustee of the public. In this country the title is vested in the states upon a like trust, subject to the power vested in congress to regulate commerce. Martin v. Waddell, 16 Peters, 367, 412; McCready v. Virginia, 94 U. S. (4 Otto), 391. That fishery in such waters as Lake Erie and its bays should be as free and common as upon tide waters, and alike subject to control by public authority, is obviously just. The reasons for regarding the right as public is as great in the one case as in the other; and we have no hesitation in saying that the right of fishing in these waters is as open to the public as if they were subject to the ebb and flow of the tide." In Hogg v. Beerman, 41 Ohio St., 81, it is held that land covered by the water of a navigable land locked bay, or harbor, connected with Lake Erie, may be held by private ownership, subject to the public rights of navigation and of fishery, provided the holder derives his title from an express grant made, or sanctioned, by the United States. The court say, at page 95: "Where the grantor is the government, the thing granted government property held by absolute title, and no use of the thing granted to which the public is entitled is taken away, we see no reason for denying to the grantee ownership of the thing granted. * * * As was held in Sloan v. Biemiller, 34 Ohio St., 514, the right of fishing in Lake Erie and its bays is Opinion, per JOHNSON, J. as open to the public as if they were subject to the ebb and flow of the tide. No mere grant of the land covered by such waters destroys this public right." In State v. Cleveland & Pittsburgh Rd. Co. et al., 94 Ohio St., 61, it is held that the title of the land under the waters of Lake Erie, within the limits of the state of Ohio, is in the state as trustee for the benefit of the people, for the public uses to which it may be adapted. It is said in the opinion, at page 80: "The state as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created. "If it is once fully realized that the state is merely the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use, a clearer view can be had. "An individual may abandon his private property, but a public trustee cannot abandon public property." Coming still closer to the locality involved in this proceeding, the case of Bodi et al. v. The Winous Point Shooting Club, 57 Ohio St., 226, involved practically the same questions and the same territory as are involved here, and practically the same issues were made. It was there declared: "That the rights of navigation and fishing go together in the lakes and navigable bays of this state, has been held by this court, and seems settled. Sloan v. Biemiller, 34 Ohio St., 492. "The navigable waters in dispute in this case, Opinion, per JOHNSON, J. form part of a public bay and not parts of the Sandusky river and Mud creek; and the circuit court erred in holding otherwise upon the facts as found in the record. Being part of an open bay, the public has the rights of navigation and fishing in its navigable waters." In that case the circuit court had found in favor of the plaintiff, the club, and had enjoined the defendants from fishing in the waters described in the petition. This court modified the judgment of the circuit court. The plaintiff in error calls attention to the fact that in the entry of the judgment this court found that the circuit court erred "in enjoining the defendants below from setting fishing nets and fishing in the waters described in said. order of injunction," but that subsequently it altered that entry by the insertion of the word "navigable" before the word "waters." There was in that case a finding of facts by the circuit court, which contained a very elaborate description of the premises of the plaintiff and of the part in which the defendants claimed the right to fish. It disclosed also that defendants disclaimed any right to fish upon other parts of the club's premises. We think it is clear from a reading of the record in that case that the insertion of the word "navigable" in the entry of this court was made so as to prevent the implication that the defendants were held to be entitled to fish on the premises of the plaintiff in portions of the Sandusky river outside of the open public bay; or in the creeks and ponds on the territory of the club Opinion, per JOHNSON, J. adjoining the bay. But it is clear that the specific thing that the court decided, and which is the important point in this case, is, that the navigable waters in dispute form part of a public bay and not part of Sandusky river and Mud creek, and that the circuit court erred in holding otherwise upon the facts found in that court. Subsequently the plaintiff brought suit against Jeppe Caspersen and others, in which it asserted the same rights and sought the same relief as it had asked for in the Bodi case. The club was still of the opinion that the territory in question was a part of Sandusky river and Mud creek. By agreement of the parties the finding of facts made by the circuit court in that case is included in the record in this case. In its conclusion of law the circuit court found: "That all those waters lying west of a line drawn from Slade's Point, or Slate's Point, to a point at the east end of Eagle Island and thence to South Point, and between Squaw Island on the south, Horse Shoe Island, on the west, and the shore line on the north, and lying between the shores aforesaid, form part of a public bay, and are not parts of the Sandusky River and Mud Creek; and being parts of an open bay, and navigable in part as aforesaid, the defendants as members of the public have the rights of navigation and fishing in said waters. But the defendants and the public have no right in or upon any of said lands not covered by water to an extent that marketable fish may be found therein." The judgment of the circuit court in that case Opinion, per JOHNSON, J. was affirmed by this court, 66 Ohio St., 687, on authority of Bodi et al. v. The Winous Point Shooting Club, supra. The judgment of this court in that case was affirmed by the supreme court of the United States, Winous Point Shooting Club v. Caspersen, 193 U. S., 189, in which case the plaintiff in error asserted that the judgment that said waters are not those of Sandusky river and Mud creek, but those of an open and public bay in which the public had a right of fishing, was in contravention of the constitution of the United States, in that plaintiff was deprived of its property without just compensation. It will be observed that the conclusion in the Caspersen case was that the waters in question formed part of a public bay and not parts of Sandusky river and Mud creek, “and being parts of an open bay, and navigable in part as aforesaid, the defendants as members of the public have the rights of navigation and fishing in said waters." Having found that the waters in question are not parts of the river and creek, but are parts of an open bay, navigable in part, the court then states the clear and distinct conclusion, "that the defendants as members of the public have the rights of navigation and fishing in said waters." The connotation is evident that in an open public bay, which is navigable, the public rights of fishery inhere in the entire open public bay, not limited within that bay to the particular portions which are navigable. To hold otherwise would not only give rise to innumerable and unceasing disputes as to whether |
