Telegram-herald., 1890-08-27
TALK OK THE WALL
" Hard Klngstsy Presents the Case
OF hr. Powers.
PRIVATE RIGHTS Il Grand RIVER
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AWHN-- 44tEA
a smail but deeply interested aud
enoe mas present to hear the argument
Of Sir. 4 ngsley withia the bar were
Wm. t. Powers. E.F. Uhl. Jacob Klein
F hans, City Attorney Taylor aad others.
Alr. Kingsley occupied the entire day
addressing tae court, and uttered has
+ last sentences with such ciearness ana
gog that no casual observer would
have mistrus.ed tie amount OF work
I he had done.
This morning Mr. Taylor Will address
T the c0nrt. IA review OF some or the
: authorities cited by Mr. Kingsley, ana
after that Mayor lnl wall close ire
argument on behalf OF the city.
The outline Of Mr. hiBgsley's srgu-
meut, made Yesterday, IS as follows
From the bill, answer and aihaaYits'
on THIS preliminary motion 20 Dissolve
/ the injunction, TWO points are pre-
+ seated, first, the validity Ol the sO-cAlled
dock and building lines along the rapids
/ in the Cltyi and, secondly, whether the
stone watts, N point Of fact, an illegal
! obstruction IN the river, without regard
/ 20 the question Of dock lines Whether
or not the dock lines are legally estab-
I hshed, is question OF law, but whether
( or not the stone wall Is an actual OBJ
structon IN the ryer, is one OF TACT, 10
I be determined by the cOurtupon all the
/ circumstances OF the case.
As to the dock haeS themselves, Nj.
/ Kingsley claimed that the court IS not
/ concerned IN the constitutional powers
/ OF legislatures 10 establish dock, wharf
or harbor lines, rs affecting the relative
rights of public and individual pro-
/ prletors IN the soil lying on tide waters,
because such owners confessedly own
only 10 the high water mark. With
whole masses of sucn questions we have
I nothing 10 do. but only with the con
| stituuOnal power and limitation Of
/ the Legislature of Michigan, acting
through q municipality, 10 establish
dock lines along Grand river, especially
in that part of the rever known as "tne
+ rapids" where private ownership eX-
/ lists IN the rlver-bed. Authorities we're
cited to show that dock lines apply only
! to conditions of actual navigation.
| Then he showed that the word "navig
able" has now two meanings; first, IN
actual commerce where boats and ships
float actual merchandise; and second,
in a more extended way III America,
where rats and logs are ioated to
market.
TWAS admitted that the rights of the
/ public IN such streams were u the pro-
lection OF the streams for actual navi-
| cation; t2) for the passage OF floods,
| driftwood, migratory fish, ETC.; that II
/ be kept safe as to property and health.
/ This, Mr. Kingsley insisted, IS as far as
/ the public rights extend. These things
/ the public are entitled to free Of Charge.
! But he claimed there is a question how
/ far the public may, for the improving
/ tire navigsbility OF a stream, invade
! the private right to the use Of ones
| own property without making COM
pensation for ii. where" sad he,
/ ''is the dividing line in this case? Can
( the municipality draw their own line
! and declare their action tinal|'
/. Il Is the settled law of the State OF
Michigan that the riparian rights of
/ individuals extend TO the middle of the
/ stream, and that the owner may use
/ the bed of the stream as he chooses, if
not prejudiclal TO certain acknowledged
rights always enjoyed by the public. A
/ long list of authorities was given on
/ this point, as upon all the other points
given.
II. The L. S. Supreme court hold
( that riparian rights are governed by
/ the laws OF the States. And Mr.. Kings
/ ley thought 1t would be conceded that
/ under the law of this state, prop
! erty owners on Grand River own TO the
/ middle OF the stream. The sub water
estatate is as much property a. the up
/ land above the stream, and may be
separated from the adjacent land and
! sold as water lots. Much stress was
/ laid upon TINS point, and many author
/ ties were cited IN support of 1t.
I The State Constitution provides that
+ no property shall be taken for public
use without due compensation. From
/ THIS It follows that the Legislature it.
self has no authority under our consti-
I tution to take land on navIga5.e
/ stream tor public use without cOmpcn-
sat0n therefor. Submerged land
I can no more he SO taken
I than other land. But interference
with the submerged land is - taking"
I within the sense % the Michigan con-
I stltut.Ol. III the owner 3 not permitted
I 10 build beyond the dock lines, 1t de-
/ prIycs him of It's beneficial use and
enjoyment.
Tue Legislature cannot, by munici-
4 pol corporation. establish q deck iluc
and declare IS legal or nuisauces al
! structures built beyond II, If, In fact,
I they arc not distractions and mind
I RANGES 10 navigation, nor DO not
cndanEer tne public health, and do not
: curta.l any Of the rights of the public
! in tie urcr. A municipality cannot
: establish ia own lines arbitrarily and
( then enforce tbs decision. The whole
matter Is one OF fact. II. ia fact, an
( owners Use of ms property IN the
stream b. not q nuisance. no leg. slative
Z rule can make it so Il the legislation
I be tanism0unt To- taking property with
T out compensation therefor Hence
I the lIue which the Legislature
draws must Be the same
wnaca the courts would have
I fixed az any particular place, Il called
( upon. ri0rs TIE legislative aet was
taken. Ene only way - establish e
leSal oocS-ilne along TIC rapids = Co.
I tae leg stature 90 pT0vde come general
{ scheme Tor widening on narrowing toe
( stream, and then. In cEse TIE right %
Z bald beyond the line be carts.l led e.
I TIE nrs11dics ~ tne oHncr. to make
compen sstl9u a. 9rdlaz t. law.