
    Lembeck v. Nye. Same v. Andrews.
    
      Hiparían proprietors — Bights in non-navigable lakes — Trespass—Continuous, may be enjoined.
    
    1. (a) Anon-navigable inland lake is tlie subject of private ownership; and where it is so owned, neither the public, nor an owner of adjacent lands, whose title extends only to the margin thereof, have a right to boat upon, or take fish from, its waters.
    
      (b) Such riparian proprietor, however, is of right entitled to the use of the water therein for domestic'and agricultural purposes connected with the adjacent land upon which he may reside or be engaged in cultivating.
    2. (a) Where one who owns a tract of land that surrounds and underlies a non-navigable lake, the length of which is distinguishably greater than its breadth, conveys a parcel thereof that borders on the lake, by a description which makes the lake one of its boundaries, the presumption is that the parties do not intend that the grantor should retain the title to the land between the edge of the water and the centre of the lake,' and the title of the purchaser, therefore, will extend to the centre thereof.
    (6) If, however, the call in the description be to and thence along tlie margin of the lake, no such presumption arises, and the title of tlie purchaser will extend to low-water mark only.
    (c) Or, if the description be by metes and bounds, no reference being made therein to the lake, then only the land included within the lines, as fixed by the terms used by the parties to the deed, will pass to the grantee.
    3. Where numerous acts are being committed, and their continuance threatened, under a claim of right, by one person on tlie land of another, which acts constitute trespass, and the injury resulting from each act is, or would be, trifling in amount as compared with the expense of prosecuting actions at law to recover damages therefor, the owner may resort, in the first instance, to a court of equity for appropriate relief,
    (Decided May 20, 1890.)
    Error to the Circuit Court of Medina county.
    
      The plaintiff in error, who was also the plaintiff in the courts below, brought, in the court of common pleas of Medina county, two actions, one against the defendant E. E. Andrews, and the other against the defendant John Nye; the pleadings in the two actions being substantially alike, if not exact copies, one of the other.
    The plaintiff in 'his petition set forth that he owned in fee simple, and was entitled to the exclusive possession, of the land that underlies and forms the natural bed of Chippewa Lake in Medina countyr, Ohio, together with a narrow strip, of land that surrounds the same ; that the lake was valuable for the purpose of keeping boats and fishing tackle for hire to persons who resort to it for recreation and pleasure; that the defendants, who respectively occupy certain lands that border on the lake, in violation of the rights of the plaintiff, have each fitted out and keep for hire boats and fishing tackle, have let the same to excursionists and pleasure seekers for hire and intend to continue to do so, whereby repeated and constant acts of trespass are being committed and will continue to be committed upon his said property by transient, and in many instances irresponsible, persons; that the defendants are each irresponsible pecuniarily, and that the ordinary actions at law would furnish him no adequate remedy. Whereupon he prays for an injunction and general equitable relief.
    Each defendant, by an answer filed in the action against him, denied that the plaintiff owned in fee simple, or was entitled to the exclusive possession of, the premises in dispute admits that he keeps and lets for hire boats and fishing tackle-from the front of his premises to persons who resort to the-lake for pleasure, and claims a right to continue to do so, averring that the same has been done by himself and predecessors for more than twenty-one years, and that for more-than forty years the public has resorted to said lake for boating and fishing.
    The record does not disclose any of the proceedings in the-court of common pleas, but shows that the two actions were tried in the circuit court of Medina county, upon an agreed statement of facts and a judgment rendered against the plaintiff in each action, who thereupon instituted proceedings in this court to reverse those judgments.
    Excluding certain immaterial matters, the agreed statement of facts shows that the Chippewa Lake has an area of about four hundred acres, is oval in form, its length from north to south being about twice as great as its width from east to west, its principal tributary emptying into it at its northerly end and its surplus water escaping by a stream flowing from its southern extremity ; its bottom sloping gradually from the shore to its centre where the depth is “ considerable; ” that its waters are valuable not only for the purpose of letting boats and fishing tackle to pleasure seekers thereupon for hire, but to gather ice from its frozen surface ; that it has never been used for navigation, but that from very early times hunters and fishermen have resorted to it, without license, to fish and hunt, and for more than forty years the public have had free access to it for boating, hunting and fishing; that the defendants and their grantors have, for more than forty years, occupied continuously their respective lands to the water in all its variations, and have enjoyed the free use of the water in connection with their lands for the purpose of watering cattle, washing sheep, boating and fishing, and without license or consent from any one. That the defendants, Andrews and Nye, have constructed on the premises, occupied by each, buildings and appliances such as are found ■at pleasure resorts, to which their places are adapted, and the value of which, for such purposes, is dependent upon their right of access to, and use of, the lake for the purpose of ■boating and fishing. They keep for hire a large number of small boats, which they let to pleasure seekers and sportsmen resorting to the place, and they derive some profit from such hiring of their boats. In the use of the lake, in connection with the hiring of their boats, they have constructed a temporary dock, extending from the shore occupied by them, into the lake far enough to get beyond shallow water, and at, such docks they keep their boats tied when not in use, and from them the public take such boats for hire. That a pub-lie road is opened to the lake along the line between the lands of the two defendants, and they having fitted up their lands for places of resort, and being situated on such public road, resort to tlie lake was, at the time of the commencement of this action, substantially confined to persons who reached it' over the defendants’ grounds, they being the only ones having boats for hire and grounds open to the public.
    The lands, the title of which is immediately in dispute in these actions, lying between the water’s edge of the lake and its centre, and in front of the shore land occupied by the defendants, as well as the entire lake and its surrounding lands, as a part of the Western Reserve lands were, at the time of the division of the Connecticut Land Company, allotted to Samuel Fowler and three others, and as early as 1815, by virtue of sundry conveyances 'of interests and proceedings in partition, the ownership of all such lands was in James Fowler and Samuel Fowler.
    That sales of parcels of the entire tract were made from time to time by the Fowlers until all the lands immediately surrounding, or bordering on, the lake were conveyed away by them, the last conveyance thereof bearing date of January 24, 1868. That on August 11, 1876, the Fowlers conveyed to D. H. Ainsworth and A. W. McClure whatever title they then had to the bed of the lake and the lands surrounding it, which title, by subsequent conveyances, is now vested in the plaintiff in error. That the descriptions in the several deeds, by which the Fowlers conveyed to purchasers thereof the several parcels of land that surround and border on the lake, are not uniform, some of these' descriptions were by metes and bounds only, containing no words referring to, or indicating the existence of, the lake, while others made the margin of the lake a boundary. The descriptions in two of the deeds, however, that to Fred B. Chamberlain and the one to Delanson DeForrest, under whom the defendant Nye claims title by mesne conveyances, expressly make Chippewa Lake one. boundary of the land conveyed, though the deed to the lessor of Nye makes the margin of the lake the boundary of the lands which it conveys to him.
    
      
      Henderson $ Kline, and Harrison, Olds f Henderson, for plaintiff in error.
    The rule in Ohio, as to all streams, is that the owner of land situate on the bank of a stream, in the al sence of words of limitation in his title, is entitled to the bed of the stream to the middle thereof; and that, by words of limitation in his title, either he may be limited at the top of the bank, or the bank, or the shore, or high water mark, or low water mark, or the water’s edge. Lessee of McCulloch v. Aten, 2 Ohio 307; Gavit v. Chambers et al., 3 Ohio 496; Bennet’s Lessee v. Platter et al., 6 Ohio 509; Hopkins v. Kent, 9 Ohio 13; Lessee of Bulkley v. Blackwell’s Heirs, 10 Ohio 509; Lessee of Blanchard v. Porter et al., 11 Ohio 138; Lamb v. Rickets, 11 Ohio 311; Walker v. Board of Public Works, 16 Ohio 544; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423; Lough v. Machlin, 40 Ohio St. 332; Day v. Railroad Co., 44 Ohio St. 408. The first part of this rule has never, in this state, been held to be applicable to the owners of lands on the bank or shore of lakes or ponds. Sloan v. Bienmiller, 34 Ohio St. 492.
    An examination of the decided cases, both in the courts of the several states, and of the United States, some of which are hereinafter cited, show that the great weight of authority is against the proposition, that the rule as to streams is applicable to lakes and ponds. The reasons underlying the rule as to streams, are against the application of that rule to natural lakes or ponds. The determination of boundary as to lakes or ponds, has itself become crystalized into a rule of law, recognized and followed by many cases, and by the weight of authority. 3 Washburn on Real Property, 634; Angell on Water Courses, Secs. 41, 42; Devlin on Deeds, See. 1026; Waterman v. Johnson, 13 Pick. 261, 265; Roxbury v. Stoddard, 7 Allen 158; Paine v. Woods, 108 Mass. 160; Fay v. Salem & Danvers Aq. Co., 111 Mass. 27; Bradley v. Rice, 13 Me. 198; Wood v. Kelly, 30 Me. 47; Robinson v. White, 42 Me. 209; Bradford v. Cressy, 45 Me. 13; Stevens v. King, 76 Me. 197; State v. Gilmanton, 9 N. H. 461; Fleteher v. Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 323; Mill River Woolen Co. v. Smith, 34 Conn. 463; Canal Comr’s v. People, 5 Wend. 423, 446; Railroad Co. v. Valentine., 19 Barb. 484; Austin v. Railroad Co., 45 Vt. 215, 242; Wheeler v. Spinola, 54 N. Y. 337; Cobb v. Davenport, 32 N. J. L. 369; Fowler v. Freeland, 44 N. J. Eq. 268; Primm v. Walker, 38 Mo. 99; Seamen v. Smith, 24 Ill. 521; Trustees of Schools v. Schroll, 120 Ill. 509; v. Milk et al., 11 Fed. Rep. 389; Hathron v. Stinson, 1 Fairf. 238; Child v. Starr, 4 Hill 369; Rockwell v. Baldwin, 53 Ill. 19; Angell on Water Courses, See. 4; Hodges v. Williams, 59 Am. 242; Forsythe v. Smale, 7 Bliss 201; Williams v. Buchanan, 1 Ired. 535; 35 Am. Dec. 760; Ingram v. Threadgill, 3 Dev. 58; 9 Cush. 544; Ingraham v. Wilkinson, 4 Pick. 268; 16 Am. Dec. 342.
    The deeds to the Trumps and DeForest each contain such words of limitation as limit the title the grantee received, or could convey, to the east margin of Chippewa Lake. Smith v. Ford, 48 Wis. 115; Bradford v. Cressy, 45 Me. 10; Hamm v. City of San Francisco, 17 Fed. Rep. 119; Mulford v. LeFranc, 26 Cal. 108, and cases cited; Reamer v. Nesmith, 34 Cal. 627; Murphy v. Copeland, 51 Ia. 515; Peabody Heights Co. v. Sadler, 52 Am. Rep. 519; Buckingham v. Smith, 10 Ohio 288; Angell on Water Courses, Sec. 5; Walker v. Board of Public Works, 16 Ohio 544; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423; Devlin on Deeds, Secs. 836 to 840; Angell on Water Courses, Sec. 23; Hammond v. Ridgley, 5 H. & J. 215; Herring v. Fisher, 1 Sandf. 344; Hammond v. McLachin, 1 Sandf. 323.
    The west boundary of the premises conveyed by both the DeForest and the Trump deeds, was the east margin of Chippewa Lake, as it existed at the time of the execution of the conveyances. In the absence of evidence showing that the parties to those deeds contemplated a shifting boundary, it will not be presumed that they did so intend. The defendants in error must support the contention for a shifting boundary by the burden of proof. There is no implication of such intention in the fact that the word margin" is the term used to describe the west boundary. There is no evi
      
      denoe in the record showing such intention: in fact, the evidence shows the contrary. Stone v. City of Augusta, 46 Me. 127; Cook v. McClure, 58 N. Y. 437; Bank of Buffalo v. Nichols, 64 N. Y. 65; English v. Brennan, 60 N. Y. 609; Holden v. Chandler, 18 Atlantic Rep. 310; 3 Kent. Com. (12th ed.), 435; Gould on Waters, Sec. 200; Eddy v. St. Mars, 53 Vt. 462.
    
      Boynton, Hale $ Horr, for defendants in error.'
    The title of persons owning lands in this state upon streams, whether navigable or non-navigable, extends to the centre of the stream, subject only in the case of navigable streams to the public easement of navigation. Bay v. Railway Co., 44 Ohio St. 406; Hogg v. Beerman, 41 Ohio St. 81; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423; Walker v. Board of Public Works, 16 Ohio St. 540; Lamb v. Rickets, 11 Ohio 311; Benner v. Platter, 6 Ohio 504; Gavit v. Chambers, 3 Ohio 496.
    The reports of other states abound in decisions in which the rule, as to small lakes and ponds, is formulated, and in nearly every case there are no special circumstances 'upon which a variance from the rule should be predicated; the same rule is applied that is applied in Ohio to streams. Stoner v. Rice, 22 N. E. Rep. 968; Ledyard v. Ten Eyck, 36 Barb. 102; Smith v. City of Rochester, 92 N. Y. 463; Ridgway v. Ludlow, 58 Ind. 248; Ross v. Faust, 54 Ind. 471; 18 Am. Law Register (N. S.) 337; Forsythe v. Forsythe, 7 Bliss 201; Schaffer v. Marthaler, 34 Minn. 487; Warren v. Chambers, 25 Ark. 120; Clute v. Fisher, 65 Mich. 48; Reynolds v. Commonwealth, 93 Pa. St. 458; Webber v. Boom Co., 62 Mich. 926; Turner v. Holland, 65 Mich. 453; Angell on Water Courses, Secs. 11, 12; Watson v. Peters, 26 Mich. 508; Bristow v. Cormican, L. R. 3 App. Cas. 641; Bell’s Principles of Law of Scotland, Sec. 65.
    An examination of the decisions rendered by the Supreme Court of Ohio, shows that the extension of the rule as to streams, to the construction of boundaries of small inland lakes like Chippewa, will simply be carrying out a well defined policy of this court inaugurated more than fifty years ago. Benners’ Lessee v. Platter, 6 Ohio 504; Lessee of White v. Sayre, 2 Ohio 303; Gavit v. Chambers, 3 Ohio 495; Blanchard v. Porter, 11 Ohio 138; Booth v. Hullard, 8 Ohio St. 247; Sloane v. Biemiller, 34 Ohio St. 492; Hogg v. Beerman, 41 Ohio St. 81.
    The statement is made in the brief on behalf of plaintiff in error that these cases, in which this rule of law is applied to the boundaries of lands on small lakes, rest in their reasoning upon some peculiar grant or origin of the title. So far is this from the truth that, not only do we invite the attention of the court to. the facts particularly, and the reasoning in the foregoing cases, but we respectfully submit that the very cases which counsel for the plaintiff in error cite in their brief in support of the contrary of the proposition for which we contend, come within their designation of exceptional cases.
    The sole question to be determined is, whether the grantor, James Fowler, intended to convey to his several grantees of land upon the borders of Chippewa Lake, any title to the land underlying the water adjacent to the premises conveyed. Or if he did not so intend, if the words employed, in view of their legal construction, import such an intention, such intention must be carried into effect. Dwight v. Insurance Co., 103 N. Y. 347; Farmer's Co. v. Bank, 15 Wis. 463; Canal Co. v. Hewitt, 14 Cent. Law Jour. 475; Day v. Railway Co., 44 Ohio St. 406; Mueller v. Landa, 31 Tex. 265; Luce v. Carley, 24 Wend. 451; Ex parte Jennings, 6 Cow. 518; Banks v. Ogden, 2 Wall. 57; Wright v. Day, 33 Wis. 260; Braxson v. Bressler, 64 Ill. 488; Varick v. Smith, 9 Paige 551; Chicago v. Laflin, 49 Ill. 172; Stolp v. Host, 44 Ill. 219; Kent v. Taylor, 64 N. H. 489; Sleeper v. Laconia, 60 N. H. 201; Kains v. Turville, 32 Ontario Q. B. 17; Boom Co. v. Smith, 84 Ky. 372; Angell on Water Courses, Sec. 24; Gould on Waters, Secs. 149, 203.
    Title to the centre of the stream is conveyed by the operation of a well established rule of law, and the mere fact that the grantor, in describing the property, mentions the supposed area of the land not covered by water, does not, in any way, restrict the operation of the deed to convey title to the centre of the watercourse. Lamb v. Rickets, 11 Ohio 311; June v. Purcell, 36 Ohio St. 396; Railroad v. Schuermier, 7 Wall. 272; Gould on Waters, Sec. 196; Dwyer v. Rich, Ir. Rep. 4 C. L. 424; Kent v. Taylor, 64 N. H. 489.
    It is claimed by our opponents that the well established rule of law in Ohio, as to the boundary of land upon streams is not applicable to boundaries of land upon small inland non-navigable lakes and ponds, because its application to the latter class of bodies would not be in accordance with the origin of the rule as applied to streams. They base the rule as applied to streams, upon the supposition that conveyances of land were bounded simply by the stream or by the river, without using any words which might define to which portion of the stream or river the grantor intended to limit the grant, and that inasmuch as the banks and water-line of streams and rivers vary greatly at different seasons and under different circumstances, that part of the stream, namely its thread, or the centre of the current, should be taken as the legal equivalent of such language. It is evident that this is in nowise the origin of the rule. The rule rests upon a much broader foundation. Turner v. Holland, 65 Mich. 453; Watson v. Peters, 26 Mich. 517; Gavit v. Chambers, 3 Ohio 497; Hogg v. Beerman, 41 Ohio St. 97; Water Works v. Potter, 3 H. & C. 300; Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. Div. 155; S. C., 17 Cent. Law Jour. 252; Wright v. Day, 33 Wis. 260; Norcross v. Griffiths, 65 Wis. 599; Champlin v. Pendleton, 13 Conn. 23; 3 Kent’s Com. 433; Gould on Waters, Sec. 195; Ridgeway v. Ludlow, 58 Ind. 248; State v. Milwaukee, 11 Fed. Rep. 380.
    But whether it was the intention of Fowler, by his conveyances to Trump and DeForest respectively, to make the shore of the lake the boundary of the land conveyed, or to extend the grant to the centre of the lake, it is certain that the grantees acquired all riparian rights in and over the waters and the lake; and that riparian rights include all the rights which the petition alleges are being enjoyed by the defendants. Wood v. Kelley, 30 Me. 47; Rice v. Ruddiman, 10 Mich. 125; Yates v. Van DeBogart, 56 N. Y. 526; Paine v. Woods, 108 Mass. 160; Cummings v. Barrett, 10 Cush. 186; Yates v. Milwaukee, 10 Wall. 497; Delaplane v. Railway Co., 42 Wis. 214; Gould on Waters, Secs. 149, 179, 182, 191; Bowman's Devisees v. Walthen, 2 McLean, 376; Chapman v. Railway Co., 33 Wis. 629; Wright v. Day, 33 Wis. 260; Tuck v. Olds, 29 Fed. Rep. 738; Clute v. Fisher, 65 Mich. 48; Lorman v. Benson, 8 Mich. 32; Boom Co. v. Smith, 84 Ky. 372; Lyon v. Fishmongers Co., 1 App. Cas. 66.
    Counsel for plaintiff in error, in reply.
    As to riparian rights, our contention is, not only that there is no authority for the assertion of a right to boat, or fish, or take ice, in favor of a riparian proprietor not owning the bed of the stream, but it is generally, if not universally, settled, that these rights belong to the owner of the bed of the stream only. 3 Kent 415; Brown v. Chadburn, 31 Me. 1; Rowe v. Bridge Co., 21 Pick. 344; Charlestown v. Commissioners, 3 Met. 202; Murdock v. Stickney, 8 Cush. 113; Walker v. Board of Works, 16 Ohio 540; Morgan v. King, 18 Barb. 277; Brown v. Scofield, 8 Barb. 243; Waters v. Lilley, 4 Pick. 145; Cobb v. Davenport, 32 N. J. L. 369; Hooker v. Cummings, 20 Johns. 90; State v. Pottinger, 33 Ind. 402; Edgerton v. Huff, 26 Ind. 36; Paine v. Woods, 108 Mass. 173; Mayer v. Whitaker, Albany Law Jour. 128; Stevens v. Kelley, 78 Me. 445; Buckingham v. Smith, 10 Ohio 288; Mill Run Co. v. Smith, 34 Conn. 462; Hiqgins v. Kusterer, 41 Mich. 318.
   Bradbury, J.

The contention between the parties to this action is over their respective rights to and in Chippewa Lake, a non-navigable body of water in Medina county, in this state, having an area of about four hundred acres, oval in form, though its extension from north to south is about twice as great as that from east to west. It is true that the plaintiff in error claims that the waters of the lake have subsided by'reason of the deepening of the channel of its natural outlet, whereby a narrow strip of land entirely around the lake has been recovered, but as this claim is not sufficiently supported by the agreed statement of facts to require any consideration of the principles or authorities upon which he founds his claim "to title thereto, it will not be further noticed in the.decision of the cause. ■

The lake is situated in the Western Reserve lands, and upon the division of the lands of tire Connecticut- Land Company was, together with a body of land entirely surrounding it, allotted to Samuel Fowler and three others, and which by sundry conveyances and certain proceedings in partition became the property, in fee simple, of Samuel Fowler and James Fowler as early as the year 1815, to whom all the parties to this proceeding trace title. By the conveyances and proceedings above noticed, the title to the lake, as well as the title to the lands enclosing it, vested in the Fowlers, if it is susceptible of private ownership, which we think it clearly is. Bristow v. Cormican, 3 App. Cas. 641, 652. “ A lake which -is not really useful for navigation, although of considerable size compared with ordinary fresh water streams, may be private property.” Gould on Waters, Section 83; Ledyard, v. Ten Eyck, 36 Barb. 102; Hoggy. Beerman, 41 Ohio St. 81. Many other authorities could be cited in support of this proposition, but it is too well settled to require it to be done, even if controverted, which it is not in this action, although material to its determination.

It is agreed that, from an early period in the history of the state, hunters and fishermen, without license, resorted at will to the lake to hunt and fish, and that for more than forty years the public has had free access to it for boating, hunting and fishing. It is not readily perceived how this early and continued custom can be said to cast any material light upon the intention of the parties in respect of the deeds by which the lands around the lake were from time to time conveyed; it can only be material, therefore, as tending to show a dedication of the lake by its owners to the public, and a consequent extinguishment of their private property therein. These facts may constitute a link in the chain of evidence necessary to prove a dedication of the lake to the public, but fall far short of establishing that fact. In truth, when consideration is given to the early customs of the people of this state in this respect — their well-known habit of hunting and fishing upon all lands and waters where fish or game might be found, irrespective of their ownership, or whether enclosed with fences or not — it is apparent that this class of evidence ought to be received and weighed with extreme caution as proof of a dedication to such uses. Private owners are not to be deemed to have devoted their property to uses of this kind simply because they interposed no objections to their neighbors, or even to strangers, hunting and fishing upon it; other circumstances must appear manifesting that it was his intention to do so. Dedication depends upon the intention of the owner to devote his lands to a public use and should be made to appear clearly and satisfactorily. 5 Am. & Eng. Ency. of Law, 400-401; Smith v. State, (N. J.) 712; Wash, on Easements, 209.

Here the owner did no act indicating an intention to devote the lake to the use of the public; it does not even appear that the owner had any knowledge that the public was using it in the manner that the agreed statement shows it to have been, in fact, used; and as dedication by parol, or in pais, acts by way of estoppel on the proprietor, used by the public unknown to him, can have no appreciable probative force to establish a dedication against him.

The lake, as we have seen, being susceptible of private ownership, and having been allotted to the Fowlers, or to them and others whose title they obtained, upon the division of the Western Reserve lands, and not having been dedicated to the use of the public, passed by the deed made by the Fowlers August 11, 1876, to Ainsworth and McClure, under whom the plaintiff derives title, unless it had already passed to some, or all, of the purchasers of the lands surrounding the lake by virtue of the prior deeds of the Fo'wlers made to such purchasers. This depends upon the descriptions in those deeds and the rules of law that apply to conveyances of lands bounded upon non-navigable inland lakes. By a series of deeds, the first of which bears date of October 16, 1823, and the last, of January 24, 1868, the Fowlers conveyed all the lands that surrounded the lake to various parties, under which the same are now held, and such parts of the lake as may have passed by virtue of these conveyances could not, of course, have been conveyed by a subsequent deed of the Fowlers under which the plaintiff in error derives title; and it is, therefore, of the first importance to ascertain what those conveyances, in fact, include, which necessitates a construction of their respective descriptions.

These descriptions may be divided into three classes. In the first class are two deeds, one from James Fowler et al. to Delanson De Forrest, the other from James Fowler and wife to Fred B. Chamberlain, wherein the lake itself is made one boundary of the land thereby conveyed; in the second class are four deeds, one from James Fowler to Catharine and Sally Trump, one-from James Fowler to Charles Wheeler, one from James Fowler to William Walter, and the other from James Fowler to Charles Wright, wherein the margin of Chippewa lake is made either a corner or one of the boundary lines of the lands conveyed by them respectively; while in the third class are two deeds, one from James Fowler et al. to Abraham Fritz, the other from James Fowler et al. to Conrad Snyder, in which the lands conveyed are described by metes and bounds only, no reference whatever being made to the lake.

The rule that lands, one boundary of which is a navigable river running through this state, extend to the middle of the stream subject to easement of navigation, was laid down by this court as early as the year 1828. Gavit v. Chambers et al., 3 Ohio 496. The same rule was applied to calls in a survey bounding lands upon a non-navigable stream, shortly thereafter, Benners' Lessee v. Platter et al., 6 Ohio 505; since which time the doctrine therein announced has been firmly maintained by this court. Curtis v. The State, 5 Ohio 324; Lamb v. Rickets, 11 Ohio 311; Walker v. Board of Public Works, 16 Ohio 540; June v. Purcell, 36 Ohio St. 396; Day v. R. R. Co., 44 Ohio St. 406.

The rule, however, is otherwise in respect to calls in a deed bounding the lands conveyed by it on the waters of Lake Erie. Sloan v. Biemiller, 34 Ohio St. 492. And in the case of lands bounded on the Ohio river the clear tendency of judicial opinion in this state is to limit the title of the riparian proprietor to law-water mark. Benners’ Lessee v. Platter, 6 Ohio 508; Lessee of Blanchard v. Porter et al., 11 Ohio 138, 142; Booth v. Hubbard, 8 Ohio St. 247; but the effect to be given to a call in a deed that makes a non-navigable lake one boundary of the lands conveyed by it has not heretofore received the attention of this court. The authorities upon the question are in conflict, and seem to be incapable of reconciliation. In some of the states, and in England, the rule is to limit the operation of the conveyance to the water edge. Gould on Waters, sec. 80, p. 155. Bloomfield v. Johnston, Jr., R. 8 C. L. 68; Bradley v. Rice, 13 Me. 198; Wood v. Kelly, 30 Me. 47; Wheeler v. Spinola, 54 N. Y. 377.

In other states, notably Indiana and Michigan, the contrary rule may be considered as established. Ridgway v. Ludlow v. 58 Ind. 248; Stoner v. Rice, 22 N. E. Rep. 968; Clute v. Fisher, 65 Mich. 48.

In this conflict of authority we are at liberty to adopt such rule on the subject as best comports with the presumed intention of the parties, a sound public policy, and the analogies of the rules in force in this state respecting boundaries upon running streams. It may be conceded that the numerical weight of authority supports the rule that a call in a deed making a non-navigable lake a boundary, only passes title to tire land to low-water mark; but, be that as it may, no solid ground is readily perceived for limiting, in that case, the deed to the waters’ edge, and in the case of a running stream, extending its operation to the centre or thread thereof ; and in'this state, where the rule is so firmly established that a boundary on a running stream carries the land to the middle, or thread thereof, principles of analogy afford strong grounds for applying it to non-navigable lakes. The main reasons for the rule in one case apply equally to the other. The existence of “ strips or gores ” of land along the margin of non-navigable lakes, to which the title may be held in abeyance for indefinite periods of time, is as great an evil as are strips and gores of land along highways or running streams ; the litigation that may arise therefrom after long years, or the happening of some unexpected event, is equally probable, and alike vexatious in each of the cases, and that public policy which would seek to prevent this by a construction that would carry the title to the centre of a highway, running stream, or non-navigable lake that may be made a boundary of the lands conveyed, applies indifferently, and with equal force, to all of them. It would seem, also, that whatever inference might arise, from the presumed intention of the parties, against the reservation of the land underlying the water, would be as strong in one case as in either of the others.

That practical difficulties in the application of the rule may arise where the lake is so nearly round that it cannot be said to have any length as distinguishable from its breadth, or when the side lines of the respective parcels of land bounding on the lake approach it in such direction that if they should be extended to the centre thereof, they would cross each other is apparent.

The latter difficulty is not at all unusual in the case of lands bounding on running streams, but does not prevent the application of the rule. 3 Wash. 459, star note ; Angelí on Water Courses, Sec. 55,. where the subject is learnedly discussed by those able authors, and this difficulty overcome. Whether there are in Oliio non-navigable lakes of such shape that no length can be affirmed of them does not appear; if there are any such, and the rule applicable to running streams and to non-navigable lakes distinctly longer than they are wide, cannot be applied to them, other appropriate rules must be adopted which, in the light of all the circumstances, may be regarded as effectuating the intention of the parties, and are consistent with public policy; one main object in all cases of this kind being to adopt and apply such rules as will accomplish those important ends.

Whatever difficulties may be conjectured as liable to arise in possible cases to the application of the rule we have adopted, in fact none do arise in the case before us, for Chippewa Lake is distinctly longer than it is wide, and a prolongation to its centre of the side lines of the respective parcels lying along its sides will not cause them to cross each other. The rule, of course, excludes those lands which merely touch the end of the lake and do not at all extend along its sides.

This rule, however, is applicable • to but two of the conveyances, that to Delanson DeForrest and that to Fred B. Chamberlain. While, if the parties to a deed make a running stream, a non-navigable lake, or a highway, one boundary of the lands conveyed by it, public policy and the presumed intention of the parties will extend the line to the middle of such monument, yet it is competent for them to limit the conveyance to the side of the highway, the top of the bank of the running stream or to the edge of the water of the lake. Lessee of Blanchard v. Porten et al., 11 Ohio 138; Lough v. Machlin, 40 Ohio St. 332; and the question is whether the parties to the other deeds conveying the land surrounding Chippewa Lake have not done so. As has been shown in four of the conveyances of the Fowlers, of the lands bordering on the lake, the “ margin ” of the lake is made a boundary or corner instead of the lake itself. “ Margin of the lake ” is a term of unequivocal import, meaning the line where the earth and water meet around the lake ; by the use of these words the parties have declared their intention to make, not the middle, but another part of the lake — the edge of the water — the boundary line. No other construction can be given to the words the parties themselves have chosen, without doing violence to. their meaning; and an intention contrary to the one expressed by the very words selected by the parties themselves cannot be presumed. Lessee of McCullock v. Aten, 2 Ohio 308; Lamb v. Rickets, 11 Ohio 311; Hopkins v. Kent, 9 Ohio 13; Gould on Waters, Sec. 199.

In the remaining deeds from the Fowlers to the lands around the lake the lands were described by metes and bounds, no mention of the lake being made. In descriptions of this class only the lands within the bounds pass. “ When lands are granted by metes and bounds, all the area within those bounds, and no more, passes.” Lockwood et al. v. Wildman et al., 13 Ohio 430. Indeed, where the parties have by their deed enclosed the land by agreed lines, without any reference whatever to adjacent natural objects, it is difficult to conceive of a principle that would extend those lines to include those natural objects, however convenient they might be to the enjoyment of the land actually conveyed.

From the construction we have given to the descriptions contained in deeds made by the Fowlers conveying away the several parcels of land that surround the lake, it follows, that the deeds made to Delanson DeForrest and Fred B. Chamberlain make the centre of the lake one boundary of the tracts conveyed to them respectively, and that the other deeds cany title no further than the eclge of the water, and that therefore the title to all the bed of the lake, except what was covered by the DeForrest and Fred B. Chamberlain deeds, remained in the Fowlers, and by their deed of August 11, 1876, was conveyed to D. H. Ainsworth and A. W. McClure, and is now owned by the plaintiff in error by virtue of mesne conveyances from Ainsworth and McClure, as set forth in the agreed statement of facts.

It also follows, that as the defendant Andrews claims title under conveyances, which constitute the margin of the lake a boundary, he has no title to any portion of the bed of the lake, nor has the defendant John Nye a title to any portion thereof; for the reason that although the deed from the Fowlers to Delanson DeForrest, and the mesne conveyances from the latter to J. H. Barrett, conveyed title to the centre of the lake, yet the deed from J. H. Barrett to Levi Nye, the lessor of defendant John Nye, limits its operation to the edge of the lake by expressly making the margin thereof its boundary on the side, or end, of the tract abutting thereon. We therefore hold that the plaintiff in error is the owner in fee simple of all that part of the bed of Chippewa Lake not covered by the deeds made by the Fowlers to Delanson DeForrest and Fred B. Chamberlain, and that those two deeds cover such parts thereof as are enclosed by a prolongation to its centre, of those lines of the description that approach the sides of the lake.

The bed of the lake being private property the public has no right to fish in, and boat upon, its waters ; nor have the defendants the right to engage in the business of letting for hire boats and fishing tackle to such portions of the public as may resort to the lake to boat and fish for their pleasure and recreation. That the latter right is one that can be acquired by prescription may be admitted, but the facts agreed upon fall short of establishing it by that method, even if that contention was maintained on behalf of the defendants in error, which we do not understand is the fact, in view of the arguments presented in the able brief of their counsel.

The agreed statement of facts in respect to this question is as follows:

“ The defendants and their grantors have for more than forty years occupied continuously their respective lands to the water in all its variations, and have enjoyed the free use of the water in connection with their lands for the purpose of watering cattle, washing sheep, boating and fishing, and without license or consent from any one.”

This does not show that the enjoyment was adverse or under any claim of right. Both of these elements must exist, according to the current of authority, in connection with the prescribed period of enjoyment to create a right by prescription. Washburn on Easements, 150; Tootle v. Clifton, 22 Ohio St. 247.

However, conceding that these are not necessary elements of prescription, and that the defendants had acquired a prescriptive right to water cattle, wash sheep, boat and fish in the lake, yet it by no means follows that because they may do these things, that they may also erect docks extending into the water and embark in the business of keeping boats and fishing tackle to let for hire to pleasure seekers who may-resort to the lake to boat and fish for recreation upon its waters. The two lights are clearty distinguishable from each other; and the contention is over the latter right only, in respect to which the agreed statement of facts, while it states that the defendants are exercising it, is silent as to the duration of their enjoyment thereof, and therefore does not establish the right by prescription.

That a riparian proprietor by virtue of his ownership to the edge of the water of a private stream or lake has access to, and the right to use the water for domestic and agricultural purposes, is not controverted by the plaintiff in error. Such use may fairly be considered as within the presumed intention of the parties.

That the lake is valuable for the purpose of gathering ice from its frozen surface appears from the agreed statement of facts, and the right of the defendant to gather it was asserted on one side and denied by the other in the course of the argument, but the question is not made by the parties in their pleadings and therefore cannot be noticed in the decree.

The agreed statement of facts shows that the defendant Nye is insolvent, and that the financial condition of Andrews doubtful; but aside from this, and were they both solvent and fullj'- able to respond to any damages that might be recovered against them in actions of trespass, yet, it is apparent from the whole record that such actions would not afford an adequate remedy for the violations of the rights of the plaintiff in error in the past; and those threatened in the future were, and are, during certain seasons of the year of daily, if not of hourly, occurrence under the claim of a right to do so : besides the injury resulting from each separate act would be trifling, and the damages recoverable therefore scarcely equal to a tithe of the expense necessary to prosecute separate actions therefor.

It follows from the holding of the court respecting the effect to be given the several descriptions in the conveyances made by the Fowlers and others to the various parcels of land that surround the lake, that neither of the defendants has shown a right to erect docks and let to hire for use thereon boats and fishing tackle; it also follows that in so far as these acts affect those portions of the lake to which the title of plaintiff does not extend, he is not entitled to relief against them; but is entitled to have so much thereof as his title covers protected from those unwarranted violations. There should be a decree, therefore, finding, that as against the defendants herein, the plaintiff in error is the owner in fee simple and entitled to the exclusive possession of all the lands underlying the waters of Chippewa Lake except those parts thereof that, according to the rules herein-before laid down, were conveyed by the Fowlers to Delanson DeForrest and Fred B. Chamberlain, and restraining the defendants from letting to hire either boats or fishing tackle, to be used on the water overlying the lands so found to belong to him.

Judgment accordingly.

Spear, J.

The decision in Gavit v. Chambers, 8 Ohio 496, is the foundation of the doctrine in Ohio that the ownership of lands bounded by an inland stream carries the title of the owner to the middle. It was held in that case to be “vitally essential to the public peace and to individual security, that there should be distinct and acknowledged legal owners for both the land and water of the country.” ... “It cannot be reasonably doubted, that, if all the beds of our rivers supposed to be navigable, and treated as such by the United States, in selling the lands, are to be regarded as unappropriated territory, a door is open for incalculable mischiefs. Intruders upon the common waste would fall into endless broils among themselves, and involve the owners of the adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects for individual scramble, necessarily leading to violence and outrage.” '

The rule that the lands covered by such waters should not be public waste, rests upon the ground of public policy, and it is in recognition of this rule that the lands underlying Chippewa Lake are considered to be the subject of private ownership. This being determined, the only question remaining is, what part of the lake shall be held to be the bound intended when the lake generally is given as the boundary? As to streams, the centre, or thread, is the established bound, where the language of the deed does not contradict such construction, because the centre is the most conspicuous part. The water is a moving body, and, as to the depth and breadth, is subject to constant change, which produces variations on the opposite sides. The thread, or current, however, shifts but little, and is, in the main, stationary, so that a line running to the thread would be a reasonably certain line, and would be easily ascertained. This is not true as to natural lakes and ponds. Such bodies do not have any thread or current. The water is the most conspicuous portion, but no rule of convenience or certainty requires that the line, where the lake itself is mentioned as the boundary, should be extended to the centre. Indeed, the application of such rule would be attended, in most cases, with practical difficulties in the running of lines beyond the water’s edge. If lakes were always found in the shape of a square, or a parallelogram, these difficulties would be slight, perhaps, but more frequently they are nearer a circular shape. The difficulties in such case are apparent. They may be theoretically overcome by an engineer on a diagram, but practically, in the water, they would always exist, and would prove a fruitful source of contention and quarrel.

The rule which, it is submitted, is the true rule, is stated by Gresham, J., in Indiana v. Miek et al., 11 Fed. Rep. 889, as follows:

“ Non-navigable streams are usually narrow, and the lines of riparian owners can be extended into them at right angles without interference or confusion, and without serious injustice to any one. It was therefore natural, when such streams were called for as boundaries, to hold that the real line between opposite shore owners was the thread of the current. The rights of the riparian proprietors in the bed of the stream, and in the stream itself, were thus clearly defined. But- when this rule is attempted to be applied to lakes and ponds, practical difficulties are encountered. The}*have no current, and, being more or less circular, it would hardly be possible to run the boundary lines beyond the water’s edge, so as to define the rights of shore-owners in the beds. Beaver Lake is seven and a half miles east and west, and less than five miles north and south. Extending the side and end lines into the lake, there being no current, when would they meet? This rule is applicable, if at all, whether there be one or more riparian proprietors. I do not think the mere proprietorship of the surrounding lands will, in all cases, give ownership to the beds of natural non-navigable lakes and ponds, regardless of their size. It would be unfair and unjust to allow a party to claim and hold against his grantor the bed of a lake containing thousands of acres, solely on the ground that he had bought and paid for all the small surrounding fractional tracts — the mere rim.”

In my view there is no difference, in law, in the two cases now under consideration, and a like judgment should be rendered in each. But the judgment in the case of Nye is assented to as the best practical solution under the circumstances.

Williams, J., concurs in the above.

Minshall, C. J., and Dickman, J., dissent.  