
    Bodi et al. v. The Winous Point Shooting Club.
    
      Right of navigation and fishing in navigable waters.
    
    The public has a right of navigation and fishing in the navigable waters of the open bays of Lake Erie, in this state. Sloan v. Biemiller, 34 Ohio St., 492, followed and approved.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Ottawa county.
    This action was brought by the defendant in error against the plaintiffs in error, to enjoin them from fishing and hunting in waters which are claimed by the shooting club to lie on both sides of the Sandusky river and Mud creek, southwest of Sandusky bay. Henry Bodi, and those joined with him in the action claim that those waters constitute an open navigable bay in which the rights of navigation and fishing ar vested in the public. There is a long finding of facts, followed by conclusions of' law. The first and second conclusions of law are as follows:
    
      “First — That the body of water claimed by the defendants to be a continuation of the Sandusky bay is not such continuation of said bay, but the same are waters of the Sandusky river and Mud creek. The said Mud creek and Sandusky river, flow through the lands described in the plaintiff’s petition, and that said Mud creek empties into said Sandusky river upon the lands of plaintiff described in its petition, and from this junction, said Sandusky river flows easterly and empties into the Sandusky bay at a line commencing at Slade’s, or Slade’s Point, in the southwest quarter of section 13, town 6, range 16, in Ottawa county, Ohio, and running thence east of south, to the east end of Eagle Island, in section 24, lying south of said section 13, and running thence west to south to a point called “South Point,” situated in about the center of the north west quarter of section 25, lying south of said section 24.
    
      Second — That all those waters lying west of said line drawn from “Slade’s or Slade’s Point,” toa point at the east end of Eagle Island and thence to “South Point,” covering the lands described in the plaintiff’s petition, are owned by the plaintiff, and it is entitled to every beneficial use and enjoyment thereof, and the defendants have no lawful right to enter upon any of said waters, without the consent of the plaintiff for any purpose whatever, except to navigate said waters.”
    The circuit court acted upon these conclusions of law, and enjoined the defendants below from fishing and hunting in said navigable waters. Thereupon the plaintiffs in error filed their petition in this court, seeking a reversal of the judgment of the circuit court. -
    
      George A. True and C. I. York, for plaintiff in error.
    Defendant in error claims the exclusive right to take fish and other wild animals in, upon and over the twelve square miles of water in controversy in this case, by virtue of the law of riparian ownership; it claims that this great bay is a part of Muddy creek and the Sandusky river, and that this sporting club has the exclusive right to the wild animals because it owns the land on the sides of the bay and therefore owns to the middle.
    The first question then is, what is a river?
    Lexicographers have defined a river to be a “large stream of water flowing in a channel on land 
      toward the ocean, a lake; or another river. ’ ’ Houck on Rivers, section 1, page 1.
    The' word is derived from the old French word “riviere” meaning a bank, a shore or rather a country on the banks of a river. Webster’s Diet., “River;” American Cyclopaedia, “River;” Houck on Rivers, section 2, page 1.
    Every river, be it public or private, has a bed, shore and bank. Gavit's Adm'r v. Chambers, 3 Ohio, 498; Howard v. Ingersoll, 13 Howard, 426; McCullough v. Wainright, 14 Penn. St., 171. A river is a running stream of water pent in on either side by banks, shores or walls. Every river consists of (1) the banks, (2) the bed, (3) the water. Gould on Waters, section 41, page 94; Angel on Watercourses, sections 3 and 4 and notes.
    The Sandusky river has no banks after passing through the marsh and emptying into Mud creek bay near Squaw Island. Between Squaw Island and the Sandusky bay, where the channel continues through Mud creek bay, there are no banks above water.
    A river iá said to be “pent in by walls or banks” and is thus contradistinguished from a sea or an ocean, which encompasses the land, rather than is encompassed by it. Woolrich on Sewers, 51; Livingston v. Morgan, 6 Mart. R., 19.
    A bank is defined to be a steep declivity rising from a river, lake or sea. Webster def. Bank Bouvier Law Dict; Thomas v. Hatch, 3 Summ., 178 Handley's Lessee v. Anthony, 5 Wheat., 374.
    If the shore borders on the edge of the water, it must extend outwards to the bank, and therefore cannot be the bank, which, in certain stages of the river, it separates from the water’s edge.
    A river then, consists of water, abed, and banks; these several parts constituting the river, the whole river. Chalker v. Deckman, 1 Conn., 481; Peck v. Lockwood, 5 Day (Conn.), 22; Stannard v. Hubbard, 34 Conn., 370; 8 Cush., 351; 20 Me., 357; 16 Peters, 410; 7 Wend., 272; Woolrich on Waters, 129.
    And this common law rule applies to Lake Erie and Sandusky bay and the waters that are made to flow inland therefrom by their egress and influence, and fishing and hunting in these waters is as open to the public as if they were subject to the ebb and flow of the tide. Sloane v. Biemiller, 34 Ohio St., 514; Hogg v. Beerman, 41 Ohio St., 81; State v. Company, 49 N. H., 250, S. C., 6 Am. Rep., 513; Wheeler v. Spinola, 54 N. Y., 377.
    It is an undisputed fact that the waters of Mud creek bay rise and fall with the waters of Sandusky bay which rise and fall with the waters of Lake Erie. The rule of tide waters being applicable to Lake Erie and Sandusky bay and all the waters which are made to flow inland therefrom by its egress and influence, why should not Mud creek bay be also open to the public for fishing and hunting ?
    The modern decisions of the Supreme Court are all holding that The Great Lakes are the same as !‘high seas.” U. S. v. Rodgers, 150 U. S., 1071, bottom number; Illinois Central v. People, 146 U. S., 387; June v. Purcell, 36 Ohio St., 396; Lamb v. Rickets, 11 Ohio, 311.
    Both of the common law rules being adopted in the state of Ohio, why should they not be followed strictly and thus prevent litigation at all points where the rules come together as they do between the Sandusky river and the Sandusky bay? Who owns the flsh that swim in the waters of Mud bay? Who owns the ducks, geese, frogs, turtles and other wild game that frequent the waters of the bay? The ownership of game is held by the sovereign authority in trust for all the people in the state. Magner v. People, 97 Ill., 320.
    There is no property in wild animals such as ducks, geese, frogs, fish, turtles, and other wild game until they are subjected to the control of man. 2 Kent's Com., 416; 2 Blackstone, 409; Eng. & Am. Encyc. of Law, vol. 8, page 1024; Parker v. People, 111 Ill., 588; Cooley on Torts, 435; Com. v. Chance, 9 Pickering, 15.
    And fish are like any other animals ferae natwrae, and in this region have always been regarded as open to capture by those having a right to be where they are captured. Molton v. Libby, 37 Me., 472; Packard v. Ryan, 144 Mass., 440. Sterling v. Jackson, 69 Mich., 518; Inst. 2, 1, section 12; 2 Blackstone Com., 410.
    The ordinance 1787, for the government of the Northwest Territory, of which our state is a part, provided that: “The ” navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said territory as to the citizens of the United states, and those of any other state that may be admitted into the confederacy, without any tax, impost, or duty therefor.”
    It must also be remembered that this commerce then consisted mainly of fish and the skins of wild animals. It was an ordinance saving to the hunter and the fisherman the right to navigate these waters free of charge, and also preserved to him forever the right to hunt and fish upon them. Houck on Rivers, section 112.
    
      The right to fish in the waters of Mud creek bay carries with it the right to drive stakes into the soil, anchor boats, etc. Gould on Waters, section 20, page 41.
    So the right to take shell-fish which are imbeded in the soil is a part of the public right of fishery, and in the exercise of this right, the public may dig or rake the soil, whether the title in the land under the water is in the state, in the town, or private persons. Gould on Waters, section 20, page 42; Proctor v. Wells, 103 Mass., 216.
    Though the sea shore between high and low water mark be held as private property, the common right still exists to go there and fish and even to dig and take shell-fish. Preble v. Brown, 47 Maine, 284; Watson v. Sampson, 8 Cush., 347; Eng. & Am. Encyc. of Law, volume 8, page 28.
    Mud creek bay is navigable water connected with Sandusky bay. Waters which are navigable in fact are navigable in law. Hickok v. Hine, 23 Ohio St., 523; Barnard v. Keokuk, 84 U. S., 324; Barnard v. Hinckley, 10 Michigan, 458; Lorman v. Benson, 8 Mich., 18; Healey v. Joliet R. R., 2 Ill. App., 435; Burroughs v. Whitman, 59 Mich., 279, 285.
    We also claim that Ohio could not have granted the public rights of fishing and hunting away to private parties. Illinois Central R. Co. v. People, 146 U. S., 387.
    The state holds title to the bed of navigable waters like Mud creek bay upon a public trust, and no alienation or disposition of such property by the state which does not recognize and is not in execution of this trust is permissible. Pollard v. Hagan, 44 U. S., 3 How., 212(11:565); Den v. The Jersey Co., 56 U. S., 15 How., 436 (14: 757); Munford v. Wardell, 73 U. S., 6 Wal., 423 (18: 756); 
      Weber v. State Harbor Comrs., 85 U. S., 18 Wal., 57; McCready v. Virginia, 94 U. S., 391; Barney v. Keokuk, 94 U. S., 324; Manchester v. Mass., 139 U. S., 260; Smith v. Maryland, 59 U. S., 18 How., 71; Hardin v. Jordan, 140 U. S., 371; Smith v. Rochester, 92 U. S., 463. McLennan v. Prentis, 85 Wisconsin, 427; Arnold v. Mundy, 6 N. J. L., 1.
    The state cannot sell them so as to deprive the public of their enjoyment. Miller v. Mundenhall, 8 L. R. A., 89; 19 Am. St. Rep., 219, and 105 Mass., 351.
    The state could not grant exclusive ownership of the submerged lands held by the state in trust for the public. Martin v. Waddell, 41 U. S., 367; 56 U. S., 15 How., 426; 20 Maine, 353.
    Grants by the crown must not impair public rights. Gould on Waters, 21; Hale De Jure Maris, C. 5, 6; 98 Mass., 41; 1 Wend., 237; 5 Sanford, 16; 60 N. Y., 56; Gould on Waters, 23; Mather v. Chapman, 40 Conn., 382.
    
      J. R. Bartlett; S. R. Harris and E. G. Love, for defendant in error.
    The only questions with which this court need concern itself are:
    
      First — Where, as. disclosed by the record, are the mouths of Sandusky river and Mud creek?
    
      Second — If the mouth of Sandusky river is to the eastward of the lands of the defendant in error described in the finding of fact of the circuit court, what are the rights of the defendant in error, it being the owner of the lands through which the Sandusky river and Mud creek flow?
    Mud creek bay, so-called, and the broad expanse of Sandusky river, answer all the requirements in the definition of a river. They are streams of water flowing in a particular direction and in regular channels between banks.
    Plaintiffs in error lay great stress upon the fact that Mud creek and Sandusky river spread out over a great expanse of low land and over-run their channel banks; but these facts have no significance in determining their character. Rice v. Ruddiman, 10 Mich., 137; State v. Gilmanton, 14 N. H., 477.
    Plaintiffs in error also emphasize the fact that during- heavy winds the waters of Mud creek and Sandusky bay, where they spread out over these low lands, rise and fall with the waters of Sandusky bay. But this has no significance at all in determining their character.
    These bodies of water being but the spreading out of a river and creek and the defendant in error having been found to be not only the owner of the land along the banks, but the actual owner by mesne conveyance from the government of the lands covered by these waters, the law of this state is so well settled it follows as a matter of course that it has the right to every beneficial use of said lands subject only to the public easement of navigation. Gavit v. Chambers et al., 3 Ohio, 495; Lamb v. Picket, 11 Ohio St., 311; Walker v. Board of Health, 16 Ohio, 540; Day v. R. R. Co., 44 Ohio St., 406; June v. Purcell, 36 Ohio St., 396; State v. Shannon, 36 Ohio St., 423.
   By the Court

That the rights of navigation and fishing go together in the lakes and navigable bays of this state, has been held by the court, and seems setted. Sloane v. Biemiller, 34 Ohio St., 492.

The navigable waters in dispute in this case, 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.

Judgment modified accordingly.  