
    EAST BAY SPORTING CLUB v. MILLER et.
    Ohio Supreme Court.
    No. 20555.
    Decided Feb. 29, 1928.
    Error to Erie Appeals.
    Judgment modified and affirmed.
    1261. water AND water COURSES — 537. Fishing rights of land owners.
    1. Public has right of navigation and fishing in open bays of Lake Erie, without limit as to particular portions of them whether navigable or not. (96 OS. 139, app.)
    2. Waters which are used or susceptible of use, as highways of commerce, are navigable.
    3. Water courses, defined — need not flow continuously; may sometimes be dry and may be filled by freshets or « backwater and still constitute' a water course. 4
    4. Fishing rights — Owners of banks and bed of an] unnavigable stream, not a part of Lake Erie or its bays,! have exclusive right thereto and may enjoin tres- ] passers from entering or fishing thereon. (*7 OS. 336. -j app.)
   DAY, J.

1. The public has a right of navigation and fishing in the waters of the open bays of Lake Erie, and such rights are not limited within such public bays to the particular portions thereof which are navigable in the legal sense, but such rights of fishing and navigation extend to any portions of such waters so long as they are a part of Lake Erie or its open bays. (Winous Point Shooting Club v. Slaughterbeck, 96 O. S., 139, approved and followed.)

2. Waters axe navigable in law when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel upon water.

3. A watercourse is a stream usually flowing in a particular direction in a definite channel having a bed, banks or sides and discharging into some other stream or body of water. It need not flow continuously, and may some times be dry or the volume of such watercourse may some times be augmented by freshets or water backed into it from a lake or bay or other extraordinary causes; but so long as it resumes its flow in a definite course in a recognized channel and between recognized banks, such stream constitutes a watercourse.

4. The owner of land comprising both banks and the bed of a stream or river which is not legally navigable and not a part of Lake Erie or its bays, has the exclusive right of fishing in such waters and may enjoin trespassers from entering upon and fishing therein. (Lembeck v. Nye, 47 O. S., 336, approved and followed.)

Marshall, CJ., Allen, Kinkade, Robinson and Matthias, JJ., concur.)  