Cleveland daily leader. [volume] ([Cleveland, Ohio]) 1865-1873, 1866-07-02


IMPORTANT DECIsIoy TO LAND OwsERs on
LAKE EEIs.-Judge Fitch recently delivered
an opinion in the ease of Rumery vs.. Favere
in the Lucas Common Pleas Court of more
than ordinary interest from the important
questions involved.
The plaintiff brought an actioa of eject
ment against the defendant, and on the trial
proved title to a fractional section on the
shore Of Lake Erie described in the patent
as containing ffty-siZ acres.
This ffty-six acres was shown by the
field notes Of the surveyors AMI by the Coy
eminent plat to be bounded on the lake side
by n lag marsh which was m~eanderGd for
the quantity.
It was admitted that the defendant was
not in possession of any portion of the fifty
six acres, but was in possession OF portions
of this marsh in front Of it, and toward the
lake, and hat the marsh, though producing
such vegetables as nags and Wild rice, is
| covered with water during the year.
II was further admitted that the lines Of
the fractional section il extended to the lake
would embrace the premises in controversy.
Il. T. Niles, Esq, Of counsel for the plain
| tiff. couteGdel, first, that as riparian owner
the plaintiff took the premises in c1ntro-
versv, or second, that he took them IS part
Of the fractional section, having a right to
extend his lines to the lake.
On the first proposition he argued that at
common law there being but two rules, the
| one applying to tidal waters where the RI
parian right extends only TO ordinary high
water. and the other TO uon-tidal navigable
waters, where the riparian right extends TO
/ the thread Of the stream, and Lake Erie
/ having no tide, We must apply the latter
rule to it, unless there are such insurmount-
/ able difficulties in its application as would
necessitate a change.
The only difficulty suggested is the Lb-
| surdity Of extending a strip of land or the
| shore 30 or 40 miles TO the center of the
lake.
In answer to this he held that the ripa-
rian owner and the public having mutual
| rights in navigable waters, where the water
becomes so shosl as to be useless for naviga-
ton. the right of the public becomes so in
! tangible and unsubstant:aI that the courts
will not enlore it; but where the water be
| comesos5 deep and the distance from shore
| so great that the land under it becomes IN
available for permanent occupation, the ri
| p3rldu ElguL Defoiles 4 mere LlCDTcllC TlSnt
like the right downward to the centre of
the earth, or indefinitely upward, and the
courts viii not depart from important aud
well established rules except for grave praC-
teal difficulties in their application. On
the other hand, the application of the first
rule limiting riparian rights on the lakes to
high water would make every DOCK on their
shores a trespass, and would leave the shoal
waters and waste lands around them prac-
tically without an owner and open topriva.e
strife and contention. On the other ground
he held that the laws Of the United States,
having authorized fractional sections only
when navigable water, an IRdian boundary
or an older boundary made it necessary, and
authorizing the p~ateutee to run out any
lines which had not been run and marked
by the surveyors as far as such practical
obstacle would permit, the plaintiff at least
had a right to run his lines to the lake,
which would embrace the premises in con-
troversy. He held that the meander was
m0rely to ascertain the quantity OF land
available for cultivation which was to be
paid for, and was not intended as a bouu-
Diary.
Judge Fitch, on both the grounds, held
with the plaintiff.