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Opinion, per JOHNSON, J.
in the exercise of the public right there were in particular instances wrongful encroachments beyond the navigable portion, although within a bay, but would also place an unwarranted limitation upon the right of the public in the public bays and waters of the state. The fact that the bay - the waters — the situs — is public, is itself sufficient
to fix the rights of the public therein.
The second part of the syllabus in the Biemiller case, supra, reads: “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." It will be observed that there is here no attempt to make limitations upon any particular part of the bay or the lake.
In Hogg v. Beerman, supra, it is said: "The private grantee of the land cannot do anything that will interfere with the channel, or hamper the passage of water craft through it. But he may, without the limits of the channel, erect fishing houses or such other structures as his means and the depth of water will permit; he may convert shallow portions into cranberry patches; he may fill up other parts and make solid ground. Although such action by him may lessen the water surface available for the fishing boats, the fishermen cannot complain. Such public right to fish always yields to any permanent improvement by the owner of the land on which the water rests."
The only possible inference from this language is that any portions of the public bay which may
Opinion, per JOHNSON, J.
be without the limits of the navigable channel, and upon which the improvements referred to have not been made, are subject to the public right to fish.
It is everywhere conceded that the right of navigation is the superior right in navigable waters. In 11 Rul. Case Law, 1036, it is said: “The reason for the superiority of the right of navigation may be found in the circumstance that the piscatorial rights in the water may, as a general proposition, be exercised at numerous places in the water, but navigation is generally confined to certain definite localities. The mutual adjustment of the two rights in order that both may be reasonably enjoyed, therefore, requires that in the places available for navigation the fishing rights be secondary."
We have no doubt of the praiseworthy motives which actuate the plaintiff company in many of its operations, as claimed by it. Such private rights as it has in the property, which it has properly acquired, should and will be protected, but we think it clear that they do not extend to the limits contended for, or permit building up of a monopoly in the public waters referred to.
The governmental power to prescribe regulations of fisheries in public and private waters resides in the legislature. It may adopt appropriate provisions concerning fishing and for the preservation of healthful fish and waters for the public benefit. It may of course prevent fishing in spawning grounds. There has already been legislation touching the subject, and it is to be presumed that as conditions require the general assembly will further safeguard the public, and likewise, in a spirit of
justice and equity, provide for the protection of the legitimate rights of property owners.
Judgment of the court below will be affirmed
NICHOLS, C. J., WANAMAKER, NEWMAN, JONES and MATTHIAS, JJ., concur.
THE CITY OF CINCINNATI ET AL. v. POLSTER ET AL.
City sewer assessment - Local drainage by private sewer - Er
emption from assessment warranted only – When local drain. age and right of maintenance permanent.
1. Where, pursuant to appropriate legislation regular throughout,
an assessment is levied upon lots and lands for the construction of a sewer in a city street, and exemption of a lot abutting thereon from assessment for the construction thereof is claimed on the ground that it is provided with local drainage, the burden is upon the owner to show that local drainage has been provided which is adequate to meet the needs of such lot both
for surface drainage and the usual purpose of sewerage. 2. A lot is not so provided with local drainage as to exempt it
from assessment for the construction of a sewer in the street upon which such lot abuts, where it appears that its only drainage facilities are afforded by a privately constructed drain through the adjoining premises over which the owner of the lot in question has no control and no right to use and maintain
such sewer. 3. Exemption of such lot from assessment on the ground of present
adequate drainage is warranted only when it is shown that the drain whereby it is served is permanent in its character of construction and the owner of such lot has a right to permanently maintain and use it.
(No. 15300 - Decided April 3, 1917.)
Statement of the Case.
ERROR to the Court of Appeals of Hamilton county.
The defendants in error, John G. Polster, Charles Lobitz, Frank Allgeier and others, brought action in the court of insolvency of Hamilton county wherein they asked an order perpetually enjoining the collection of an assessment theretofore levied upon their severally-owned certain city lots to meet the cost and expense of constructing a sewer in Fairview avenue in the city of Cincinnati, upon which said lots fronted and abutted. The court of insolvency granted the relief prayed for. The case was appealed and the court of appeals entered a similar decree, to which error is prosecuted.
The bill of exceptions contains a statement of facts, which the parties agree embraces all the evidence offered by either party on the trial in the court of appeals. The material and essential facts contained therein are as follows:
Fairview avenue, Westview avenue and McMillan street are public streets of said city, and the lots in question in this case front on Fairview avenue. The defendants in error Charles Lobitz and Sophia Lobitz acquired their said lot by deed which contained a clause conveying: "also a right two feet wide for drain and sewer through sewer now constructed, being forty-eight (48) feet south of Straight street, and running from the lot above described to Westview avenue, for a period extending one year after sewer is ready for use in Fairview avenue." Said lot is now drained by a sewer referred to in the deed, which is constructed
Statement of the Case.
through a lot west of the Lobitz property and empties into the public sewer in Westview avenue, the property through which said sewer is constructed not being owned by either Charles Lobitz or Sophia Lobitz. More than one year has elapsed since the completion of the public sewer in Fairview avenue.
The defendant in error Frank Allgeier acquired title to his lot by deed which contained a clause conveying to the grantee the right to lay and maintain a sewer pipe from said lot through the adjoining premises of the grantor to Westview avenue, but expressly providing that “the right to so use and maintain said sewer pipe or drain shall cease as soon as a public sewer is laid in Fairview avenue in front of said fifty-foot lot.” Said property is now drained by the sewer referred to in said deed, which sewer is constructed through a lot not owned by Frank Allgeier and empties into the public sewer in Westview avenue.
The lot belonging to defendant in error Herman Suer is drained by a sewer constructed therefrom. southwardly to McMillan street through property not owned by Herman Suer; but he was the owner thereof at the time of the construction of the sewer therein.
The city of Cincinnati made no objection to the drainage of said properties in the manner in which they are now drained, nor has the owner of the properties through which said several sewers are constructed made objection to the use thereof by the defendants in error. Said sewers were in use prior to the passage of the legislation for the con