Opinion
Docket No. 118, Calendar No. 34,594.
Submitted October 16, 1929.
Decided December 3, 1929.
Appeal from Leelanau; Gilbert (Parm C.), J. Submitted October 16, 1929. (Docket No. 118, Calendar No. 34,594.) Decided December 3, 1929.
Bill by Milton C. Manney and another against Albert Prouse and another to enjoin defendants from exercising certain riparian rights. From a decree dismissing bill of complaint, plaintiffs appeal. Affirmed.
C.H. Thomas and C.L. Dayton, for plaintiffs.
Thos. D. Meggison, for defendants.
By this bill in equity the plaintiffs seek to establish and protect their ownership of a small body of water in Leelanan county, commonly known as Prouse lake. They ask that the defendants and all persons claiming under them be enjoined from going upon this lake for the purposes of boating or fishing. The relief sought was denied, and the plaintiffs have appealed.
Prouse lake covers approximately ten acres of land. It is spring fed, and the outlet is a small nonnavigable stream, which through other watercourses eventually reaches Lake Michigan. Practically all of this lake or pond is located on and surrounded by land owned by the plaintiffs; but at the northerly side the shallow water extends beyond the northerly line of plaintiffs' 80 acres, and covers land belonging to the defendants. This portion of defendants' land covered by water is of irregular shape, being about three rods in width and substantially 15 rods long. The water here is shallow, and there is a growth of weeds and water plants; but there is a narrow strip of clear water running from a large spring on defendants' land out into the lake; and along this channel a boat can be floated out onto the main body of water. The plaintiffs have constructed a fence along their north line and through this portion of the lake, claiming it is necessary in order to keep their stock upon their property. Obviously, the primary purpose of this fence is to keep the defendants off the lake. The defendants, asserting their right to go upon the lake to boat and fish, have broken through the fence. Plaintiffs also seek by injunction to restrain this interference with the maintenance of their fence.
The plaintiffs purchased their farm of the defendants in March, 1919; and plaintiffs allege that incident to the negotiations resulting in this purchase, the defendant Albert Prouse repeatedly informed them that all of Prouse lake was on the land they were purchasing. The allegation in the bill in part is as follows:
"That there was no land other than the land they were purchasing that touched any part of the lake. It was explained to the said Albert Prouse that they (the plaintiffs) were buying said lands, not primarily for their value as farming lands, but because of this small pond or lake on said land; and that if they could not control the lake they did not want to purchase said lands, etc."
Complaint is made that, notwithstanding the above representations, the defendants now insist they have a lawful right of access to this lake, and that they and others permitted by them insist upon going upon this lake and in fishing from boats in the summer and through the ice in the winter. The defendants have thus fished and boated upon this lake during the eight years that intervened between the purchase by plaintiffs and the commencement of this suit. There is a dispute in the evidence as to whether this was done by permission from the plaintiffs or in the exercise by the defendants of a claim of the right so to do.
The plaintiffs are not seeking to rescind their purchase because of the alleged fraudulent representations above noted, nor do they seek money damages in consequence thereof. Hence we are not concerned with the right of plaintiffs to relief of that character. But plaintiffs do seek by injunction to take away from the defendants certain rights which they claim are appurtenant to their riparian ownership of land contiguous to Prouse lake.
This court has held:
"Where there are several riparian owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by the other riparian owners. Beach v. Hayner, 207 Mich. 93 (5 A.L.R. 1052) (quoting syllabus).
See, also, Collins v. Gerhardt, 237 Mich. 38.
The undisputed proof shows that the defendants are riparian owners on Prouse lake and have access thereto without committing trespass on any other person's land. A part of defendants' land is submerged by the waters of this lake. Clearly, under the law of this State, these defendants have the right to use the surface of the whole of Prouse lake for boating and fishing, provided in so doing they do not interfere with the reasonable use by other riparian owners. But plaintiffs claim that, because of the alleged fraud perpetrated upon them by the defendants incident to the purchase of the farm now owned by plaintiffs, they should have injunctive relief which would practically amount to specific performance of such a contract as would have been consummated between these parties if the representation alleged to have been made by the defendants had been true.
We are of the opinion that upon the facts in this case the plaintiffs are not entitled to relief. The bill of complaint as originally filed herein sought to restrain the defendants from going upon any part of the lake, particularly the portion belonging to the plaintiffs. This relief was sought on the theory that since plaintiffs owned the greater portion of the lake they had the right to its entire control. Failing in this, the theory of the bill was changed; but plaintiffs' present contention as to fraud is decidedly in conflict with obvious physical facts. At the time they purchased of defendants the dividing line between these properties was plainly indicated, and was so located that a casual observer would note it passed through the water of the lake in the manner above indicated. That the defendants made a representation to the contrary to the plaintiffs and that the plaintiffs believed the same and relied thereon is highly improbable. For years before their purchase plaintiffs were familiar with these surroundings; and for years after their purchase they made no complaint. On the facts alone the decree should be against them.
The decree of the lower court is affirmed, with costs to the appellees.
FEAD, BUTZEL, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.