Collins v. Gerhardt , 237 Mich. 38 ( 1926 )

I am fully in accord with the opinion of Mr. Justice McDONALD in this case. But for the importance of the case both to public and private interests, and the fact that an exhaustive opinion in dissent has been prepared, I should content myself with signing that opinion. My views on the subject here involved are, however, pronounced, and I desire to deal with certain phases of it at some length. I shall not take time or space in discussing the question of whether Pine River is a navigable stream. That question was submitted to the jury in a charge not complained of, which correctly gave the rule in force in this State. The jury found it was a navigable stream and there was an abundance of testimony taking that question to the jury.

It will be noted, I think, that while the courts in general uphold the right of the public to fish in navigable waters when and where it may be done without trespassing the fast land of riparian owners, and subject to such regulation as may be imposed by the State, the courts of different States do not always indulge in a uniform line of reasoning in reaching that result. The basis of reasoning is not of so much importance as is the fact that the courts generally recognize that the right is a public one inhering in the people of the State and subject only to such restraints as the State may impose.

I do not think it can be said that fishing is an incident of navigation. The navigability of a stream or lake, however, fixes its public character, that of public water, and the right of fishing in public waters is a public right belonging to the people of the State. The language of the Supreme Court of Arkansas in State, ex rel. Thompson, v. Parker, 132 Ark. 316,324 (200 S.W. 1014), is here applicable. It was there said:

"The common right of hunting and fishing in such navigable waters is not reserved to the public as a right attached and incident to the right of navigation, but it is one that inheres in the public in our State because the State, in trust for the public, is the owner of the soil in navigable waters to high-water mark, and the common right of hunting and fishing is incident to such ownership, as well as the other common right of navigation. In our State these are independent rights, and both alike belong to the class of common rights which King John essayed to hold as private and individual, exclusive of the public, but which the barons wrested from him, and which were vested by the Magna Charta in the crown (the State) for the benefit of the public. These rights have come down to us from the common law and are reserved under our 'Great Charter' to the States respectively to be held in trust for the benefit of the people."

That the rights of riparian owners do not arise from ownership of the fee of the bed of the stream but from shore ownership was settled by the highest court of the Nation inUnited States v. Chandler-Dunbar Water Power Co., 229 U.S. 53,70 (33 Sup. Ct. 667), where it was said:

"Nor need we consider cases cited which deal with the rights of riparian owners under State laws and private or public charters conferring rights. That riparian owners upon public navigable rivers have in addition to the rights common to the public certain rights to the use and enjoyment of the stream which are incident to such ownership of the bank, must be conceded. These additional rights are not dependent upon titleto the soil over which the river flows, but are incident toownership upon the bank."

Before taking up our own cases I shall consider some of the decisions from other States. In England the navigability of a stream was determined by the ebb and flow of the tide and some of the States on the seaboard early followed this classification. This State in consonance with our necessities early disregarded such an artificial rule and held that waters navigable in fact are navigable in law. But whether the States recognize the ebb and flow of the tide as the test of navigability or the rule adopted by this and other inland States, the holding is quite uniform, that the right inheres in the public to fish in streams, lakes, and ponds which are navigable in law. In Bickel v. Polk, 5 Harr. (Del.) 325, it was said:

"The right of fishing in all public streams where the tide ebbs and flows, is a common right, and the owner of land adjoining tide water, though his title runs to low water mark, has not an exclusive right of fishing; the public have the right to take fish below high water mark, though upon soil belonging to the individual, and would not be trespassers in so doing; but if they take the fish above high water mark, or carry them above high water mark and land them on private property, this would be a trespass; but the damages would be merely nominal, as for an illegal entry; it being agreed in the argument that there was no other injury. In all navigable rivers, where the tide ebbs and flows, the people have of common right the privilege of fishing, and of navigation, between high and low water mark; though it be over private soil."

In Pacific Steam Whaling Co. v. Packers Ass'n, 138 Cal. 632,636 (72 P. 161), the Supreme Court of California said:

"The right of fishery in the waters of the ocean, whether in the open sea or where the waters ebb and flow over tidelands, is a public right which may be exercised by any citizen (Shively v. Bowlby, 152 U.S. 1 [14 Sup. Ct. 548], and cases there cited; Hardin v. Jordan, 140 U.S. 371 [11 Sup. Ct. 808,838]; Mann v. Tacoma Land Co., 153 U.S. 273 [14 Sup. Ct. 820]). In its very nature the exercise of the right of fishing in the public waters of the ocean is not, and can not be, exclusive; its exercise, no matter by whom or for what length of time, is only the exercise of a public right. There can be no possession for the purpose of fishery of an area of land covered by the waters of the ocean that is at all analogous to an actual possession of a tract of upland which might give the possessor a right of action against a mere trespasser; one who exercises this public right of fishery in the sea does not by that act make himself a trespasser."

In Bell v. Smith, 171 N.C. 116 (87 S.E. 987), Chief Justice Clark, speaking for the court, said:

"The defendants, admittedly, have not trespassed upon the shore or beach owned by the plaintiff. It follows that in the navigable waters opposite plaintiff's beach she has no exclusive right of fishing, though such spot is within the bounds of her grant.

"The right to fish in navigable waters is open to all, and the proprietorship of the adjacent beach gives no exclusive right of fishing in the navigable waters in front thereof; nor does the fact that the plaintiff as owner of the adjacent beach has been in the habit of drawing a seine up to her beach at that point give her such exclusive fishery, no matter for how many years she has exercised or enjoyed such privilege."

In Anderson v. Columbia Contract Co., 94 Or. 171, 182 (184 P. 240, 185 P. 231, 7 A.L.R. 653), the court had before it both the rights of navigation and fishing and while the court recognized the right of navigation as of more importance than fishing rights, both were recognized as rights inherent in the public. It was there said:

"The Columbia river is a navigable stream and as such is a common highway 'and forever free.' This right is a public one and it is not only given by the common law but is preserved by the statute admitting the State of Oregon into the Union:Johnson v. Jeldness, 85 Or. 657, 661 (167 P. 798, L.R.A. 1918A, 1074). The right of fishery is likewise a common right. The right of navigation is paramount, for the reason that it is of the most importance to the public weal."

In Peck v. Lockwood, 5 Day (Conn.), 22, 28, after considering some of the authorities, it was said:

"The foregoing authorities abundantly prove the general proposition, that the right of fishing on the soil of another when overflowed with the tide from the sea, or arm of the sea, is a common right. The only doubt that can arise, in cases of this kind, is, whether there is a common right of fishing for shellfish, after the reflux of the tide?

"Although this right is nowhere denied by any authority, and as the principle is certainly included in the general proposition, that on such lands the right of fishing is common to every subject; yet, I think, some reasonable doubt might have been entertained on this subject, if no further authority could have been produced. The case of Bagott v. Orr, 2 Bos. Pul. 472, is, I apprehend, a case in point. It was the very case of entering upon land of the plaintiff, and taking shell-fish, by digging up the earth betwixt high and low water mark; which could be done only after the reflux of the sea. This case was determined in favor of the defendant, on the ground that such fishery, in such a place, which is the very case before the court, was a matter of common right. The court, in delivering their opinion, say, that if the plaintiff had it in his power to abridge the common-law right of the subject to take sea-fish (meaning in that case shell-fish, for that was the case before the court), he should have replied that matter specially; and, that not having done so, the defendant must succeed upon his plea for taking the fish."

And in Sollers v. Sollers, 77 Md. 148 (26 A. 188, 20 L.R.A. 94, 39 Am. St. Rep. 404), the court of appeals of Maryland held that one was not a trespasser who caught fish in navigable waters although they had previously been reduced to possession and confined by a wire fence across the mouth of the cove in which they were later caught. See, also, Hooker v. Cummings, 20 Johns. (N.Y.) 90 (11 Am. Dec. 249); Columbia Canning Co. v.Hampton, 161 Fed. 60; Hess v. Muir, 65 Md. 586 (5 A. 540,6 A. 673); Ex parte Bailey, 115 Cal. 472 (101 P. 441, 31 L.R.A. [N. S.] 534, 132 Am. St. Rep. 95); Matthews v. Treat,75 Me. 594; Church v. Meeker, 34 Conn. 421;Stevens v. Railroad Co., 34 N.J. Law, 532 (3 Am. Rep. 269);Sherwood v. Stephens, 13 Idaho, 399 (90 P. 345).

That the title to the lands in the public domain, subaqueous as well as fast land, was originally in the Federal government all will concede. That such title to the fast lands was that of a proprietor will likewise be conceded. That the title of the Federal government to the subaqueous lands over which navigable waters flowed was of a different character than that by which it held the fast lands, I hope to be able to demonstrate. This leads to the consideration of the so-called trust doctrine. The title of the Federal government to the fast lands, which it held as proprietor, did not pass to the State except by special grant. But the title which the Federal government held in the subaqueous lands covered by navigable waters, which it held as sovereign, as trustee, did pass to the State upon its admission into the Union of States, not as a proprietor but as sovereign, as trustee, and burdened with the same trust attached to it in the hands of the Federal government. That the Federal government in its sovereign capacity could for navigation purposes retake and appropriate such navigable waters and the subaqueous lands underlying them without condemnation and without compensation has been settled by the court of last resort of the Nation in numerous cases, notably United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (33 Sup. Ct. 667), but that it could not as proprietor convey them to private individuals to the detriment of the State's title as sovereign was likewise settled by that court many years ago inPollard's Lessee v. Hagan, 3 How. (U.S.) 212, 230, where it was said:

"This right of eminent domain over the shores and soils under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it. To give to the United States the right to transfer to a citizen the title to the shores and the soils under the navigable waters, would be placing in their hands a weapon which might be wielded greatly to the injury of State sovereignty, and deprive the States of the power to exercise a numerous and important class of police powers."

The State holding these subaqueous lands in its sovereign capacity (some cases say both as sovereign and proprietor) holds them as trustee for the public and for its use and benefit. If we should borrow the general trust relations and apply them, the Federal government is a cestui que trust, and if the needs of commerce, of navigation require the appropriation of such lands for the purposes of navigation, the Federal government as such cestui que trust may enforce its rights to them. The people of the State are likewise cestuisque trustent for their public use and among such public uses is their use for fishing; the right to fish in them is a right such cestuis que trustent have in them and may enjoy in common. The State may surrender the technical fee title to such lands but it can not unshackle them from the trust which continues no matter where the technical fee title may rest. Most of the States retain the technical fee title in themselves. This State has never by legislative action surrendered such title, but by judicial polity which has established a rule of property, this court in numerous decisions has held that the riparian owner takes title to the thread of the stream. But, as I have pointed out, such title is burdened with the trust, and, as I shall presently show, this court has expressly recognized such trust and unequivocally adopted the trust doctrine. However, I shall defer consideration of our own holdings until those of other jurisdictions have been examined.

Mr. Justice Bradley, speaking for the court inHardin v. Jordan, 140 U.S. 371, 381 (11 Sup. Ct. 808, 838), said:

"With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so granted enures to the State within which they are situated, if a State has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the State — a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery — and cannot be retained or granted out to the individuals by the United States."

And sitting at circuit in Stockton v. Railroad Co., 32 Fed. 9, 19, the same Justice said:

"The information rightly states that, prior to the Revolution, the shore and lands under water of the navigable streams and waters of the province of New Jersey belonged to the king of Great Britain as part of the jura regalia of the crown, and devolved to the State by right of conquest. The information does not state, however, what is equally true, that, after the conquest, the said lands were held by the State, as they were by the king, in trust for the public uses of navigation and fishery, and the erection thereon of wharves, piers, light-houses, beacons, and other facilities of navigation and commerce. Being subject to this trust, they werepublici juris; in other words, they were held for the use of the people at large."

And in Smith v. Maryland, 18 How. (U.S.) 71, 74, it was said by Mr. Justice Curtis, speaking for the court:

"But this soil is held by the State, not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish, as well shellfish as floating fish."

In Illinois Cent. R. Co. v. City of Chicago, 173 Ill. 471,485 (50 N.E. 1104, 53 L.R.A. 408), it was said:

"It is true that the State holds the title to the lands covered by the waters of Lake Michigan lying within its boundaries, but it holds the title in trust for the people, for the purposes of navigation and fishery. The State has no power to barter and sell the lands as the United States sells its public lands, but the State holds the title in trust, in its sovereign capacity, for the people of the entire State, as held in People v. Kirk, 162 Ill. 138 (45 N.E. 830, 53 Am. St. Rep. 277)."

In Brickell v. Trammell, 77 Fla. 544, 559 (82 So. 221), it was said:

"The trust in which the title to the lands under navigable waters is held is governmental in its nature and cannot be wholly alienated by the States. For the purpose of enhancing the rights and interests of the whole people, the States may by appropriate means grant to individuals limited privileges in the lands under navigable waters, but not so as to divert them or the waters thereon from their proper uses for the public welfare, or so as to relieve the States respectively of the control and regulation of the uses afforded by the land and the waters, or so as to interfere with the lawful authority of congress."

The Maine court thus states the rule in State v. Leavitt,105 Me. 76, 78 (72 A. 875, 26 L.R.A. [N. S.] 799):

"The shores of the sea and navigable rivers within the flux and reflux of the tide, by the common law belonged prima facie to the King. Holding the soil thus, the King held the appurtenant right of fishery, in trust for the benefit of his subjects. Moulton v. Libbey, 37 Me. 472 (59 Am. Dec. 57);Commonwealth v. Hilton, 174 Mass. 29 (54 N.E. 362, 45 L.R.A. 475). And after Magna Charta, he could not, by an exercise of his prerogative, exclude the public from the right of fishery, or grant an exclusive right to a private individual, either together with or distinct from the soil. Hale, DeJure Maris, chap. 5. The grantee of the King took the soil subject to the trust. Hence the right of taking fish where the tide ebbs and flows was common to all the people."

In Commonwealth v. Hilton, 174 Mass. 29, 31 (54 N.E. 362, 45 L.R.A. 475), it was said:

"By the common law of England all the King's subjects had a common right of fishery in the sea and in all bays, coves, and arms of the sea where the tide ebbs and flows. The King, who holds the right of soil under tide water, holds the appurtenant right of fishery in trust for his subjects, and since MagnaCharta he can not by grant deprive them of it. These rights in America were granted in the colonial charters to be held for the benefit of the inhabitants, and when the colonies achieved their independence they remained in the several States, to be exercised for the common good. Dill v. Wareham, 7 Metc. (Mass.) 438, 446; Commonwealth v. Alger, 7 Cush. (Mass.) 53, 82; Weston v. Sampson, 8 Cush. (Mass.) 347 (54 Am. Dec. 764);Martin v. Waddell, 16 Pet. (U.S.) 367, 410, 432; Pollard'sLessee v. Hagan, 3 How. (U.S.) 212; Smith v.Maryland, 18 How. (U.S.) 71; Manchester v. Massachusetts,139 U.S. 240 (10 Sup. Ct. 559); Arnold v. Mundy, 1 Halst. (N.J. Law) 1 (10 Am. Dec. 356).

"The rights of the States in the management and regulation of these fisheries is not limited like that of the crown in England. The States hold them in trust for the public; but they exercise not only the rights of sovereignty, except in those matters over which it is granted to the general government, but also the right of property as to everything which remains in common for all the people."

The opinion in Morris v. United States, 174 U.S. 196, 226 (19 Sup. Ct. 649), is an exhaustive one. Upon this subject it was there said:

"Briefly expressed, the appellants' contention is that the property in the soil under the river Potomac passed to Lord Baltimore and his grantees, and that it passed, not as one of the regalia of the crown, or as a concomitant of government, but as an absolute proprietary interest, subject to every lawful public use, but not the less, on that account, a hereditament, and the subject of lawful ownership, and of the right of full and unqualified possession when that public use shall have ceased.

"We need not enter into a discussion of this proposition, because the doctrine on which it is based has been heretofore adversely decided by this court in several leading and well-considered cases. Martin v. Waddell, 16 Pet. (U.S.) 367; Den v. Jersey Company, 15 How. (U.S.) 426; Shively v. Bowlby, 152 U.S. 1 (14 Sup. Ct. 548).

"The conclusions reached were that the various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under tide waters; that by those charters the dominion and propriety in the navigable waters, and in the soils under them, passed as part of the prerogative rights annexed to the political powers conferred on the patentee, and in his hands were intended to be a trust for the common use of the new community about to be established, as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, and not as private property, to be parcelled out and sold for his own individual emolument."

In State v. Welch, 66 N.H. 178 (28 A. 21), it was said:

"Whatever view is taken of the evidence tending to show, as the State claimed, that the club owned the surrounding land, it had no tendency to show that they owned the pond. The bed of the pond was reserved, set apart, and held in trust for the public use. The club could not acquire the title by prescription, or by grant from the king or the executive branch of the provincial or State government."

In Allen v. Allen, 19 R.I. 114 (32 A. 166, 30 L.R.A. 497, 61 Am. St. Rep. 738), it was said:

"The State holds the legal fee of all lands below high water mark as at common law, as has been uniformly and repeatedly decided by this court. Bailey v. Burges, 11 R.I. 330; Engs v.Peckham, 11 R.I. 210, 224; Brown v. Goddard, 13 R.I. 76, 81;Folsom v. Freeborn, 13 R.I. 200, 204. By the common law of Massachusetts and Maine, based upon or declared by a colonial ordinance, the fee in lands to a certain distance below high water mark was given to the upland proprietor, and this rule applies to such portions of our shore as have been ceded from Massachusetts. This right of the State is held, however, by virtue of its sovereignty, and in trust for all the inhabitants, not as a private proprietor. The public rights secured by this trust are the rights of passage, of navigation and of fishery, and these rights extend, even in Massachusetts, to all land below high water mark unless it has been so used, built upon or occupied, as to prevent the passage of boats, and the natural ebb and flow of the tide."

In State, ex rel. Thompson, v. Parker, 132 Ark. 316, 324 (200 S.W. 1014), after using the language I have quoted and citing some authorities the court continued:

"The State can neither alienate these rights nor abdicate the trust to hold and preserve them for the untrammeled use of the whole people of the State."

My Brother WIEST calls attention to a note in 23 A.L.R. 765. The note is an exhaustive one by an able textwriter. He does not approve the holdings of the Wisconsin court on this subject. On the contrary, this court does. In City of GrandRapids v. Powers, 89 Mich. 94 (14 L.R.A. 498, 28 Am. St. Rep. 276), this court said:

* * * "the law of this State is in complete accord and harmony with that of our sister State of Wisconsin in respect to riparian rights."

And in State v. Venice of America Land Co., 160 Mich. 680, this court followed the Wisconsin court and cited with approval the case of Illinois Steel Co. v. Bilot, 109 Wis. 418, 425 (84 N.W. 855, 85 N.W. 402, 83 Am. St. Rep. 905), in which case it was held:

"The title to the beds of all lakes and ponds, and of rivers navigable in fact as well, up to the line of ordinary high-water mark, within the boundaries of the State, became vested in it at the instant of its admission into the Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters of such lakes, ponds, and rivers, to the same extent that the public are entitled to enjoy tidal waters at the common law. A patent from the United States, so far as it purports to cover any of such lands, whether made before the State was admitted into the Union or thereafter, is ineffectual. It has been so repeatedly held. A government patent of land bordering on a lake or pond, regardless of the boundaries thereof according to the government survey, does not convey title to the lands below the line of ordinary high-water mark. The United States never had title, in the Northwest Territory out of which this State was carved, to the beds of lakes, ponds, and navigable rivers, except in trust for public purposes; and its trust in that regard was transferred to the State, and must there continue forever, so far as necessary to the enjoyment thereof by the people of this Commonwealth. Whatever concession the State may make without violating the essentials of the trust, it has been held, can properly be made to riparian proprietors."

State v. Venice of America Land Co., supra, committed this court, if it had not been committed before, to the trust doctrine and it likewise committed the court, if it had not been committed before, to the doctrine that the people of the State are cestuis que trustent with fishing rights in the navigable waters of the State. It was there said:

"That the State of Michigan holds these lands in trust for the use and benefit of its people — if we are correct in our conclusion — cannot be doubted. The State holds the title in trust for the people, for the purposes of navigation, fishing, etc. It holds the title in its sovereign capacity. * * *

"The trust in the State is an express trust; and the rule is too well settled to need citation of authorities that, as against the State as the trustee of an express trust, the statute of limitations will not run."

But I am persuaded that this court was already committed to the doctrine that the people of the State had the right to fish in the navigable waters of the State and could exercise such right so long as they did not trespass the fast lands of riparian owners. In the case ofLincoln v. Davis, 53 Mich. 375 (51 Am. Rep. 116), it was said in the majority opinion:

"Such fishing as is done with lines from boats, even in narrow streams cannot be complained of by riparian owners. The fish are like any other animals feræ naturæ, and in this region have always been regarded as open to capture by those who have a right to be where they are captured."

It is true that this case was decided by a divided court and it is possible the language used was not necessary to decision, but the case has been cited by this and other courts scores of times. It is in consonance with other cases in this court, from a few of which I shall now quote:

"The right of navigation is not the only interest that the public, as contradistinguished from the State, has in these waters. It has also the right to pursue and take fish and wild fowl, which abound in such places." People v. Warner, 116 Mich. 228.

"To fish is a privilege accorded by the State, and the question of individual enjoyment is one of public privilege, and not of private right." People v. Collison, 85 Mich. 105.

"The right to fish in navigable waters is a public right. * * *

"To hunt and fish in and upon the navigable waters such as these is a public right of which any citizen may avail himself subject to the game laws of the State." Ainsworth v. Hunting Fishing Club, 153 Mich. 185 (17 L.R.A. [N. S.] 1236, 15 Ann. Cas. 706, 126 Am. St. Rep. 474).

"We have often said that the right to fish, like the right to navigate, was a public right, and that it extended to all portions of the lakes." Stuart v. Greanyea, 154 Mich. 132 (25 L.R.A. [N. S.] 257).

"Lake Gogebic is a navigable lake; it has been stocked with fish which are there found in abundance. There can be no question of plaintiff's right to fish in its waters." Douglas v. Bergland, 216 Mich. 380 (20 A.L.R. 197).

I shall not attempt a consideration of all or any considerable number of the cases cited in the briefs. All counsel have been most diligent and painstaking and the briefs filed have been most helpful. A few of our own cases should, however, receive attention. Much reliance is placed by plaintiff's counsel on Sterling v. Jackson, 69 Mich. 488 (13 Am. St. Rep. 405), in which three most able opinions were filed. But we should not overlook the fact, and it is quite possible that this court has on occasion overlooked the fact, that the locus in quo in that case was swamp land granted to the State by the act of September 28, 1850, commonly called the "swamp land act," and under which act the land was surveyed and a patent executed by the United States to the State. The act was a grant in præsenti, and the surveying of the land and the issuance of the patent conclusively fixed the character of the lands (Brown v. Parker, 127 Mich. 390). The fact that by the action of the elements it became overflowed so as to be covered by navigable water did not change its character, which was already conclusively fixed. The State took the title in trust but it was a very different trust from the one now under consideration. The trust under that act was to dispose of the lands and use the proceeds for reclamation purposes. Such trust did not follow the land as the trust here involved does.Giddings v. Rogalewski, 192 Mich. 319, involved a small pond entirely surrounded by plaintiff's lands, which this court held was nonnavigable and the fast land of plaintiff was trespassed to reach it. In Winans v. Willetts, 197 Mich. 512, a majority of the court found as a fact that the lake was not navigable and applied the rule applicable to such waters. But in Beach v.Hayner, 207 Mich. 93 (5 A.L.R. 1052), it was held that one lawfully on the lake, not having trespassed plaintiff's fast land, did not commit a trespass by rowing over and fishing in the navigable waters over his subaqueous lands.

Entertaining the views I do, I think it unimportant whether Act No. 121, Pub. Acts 1891 (2 Comp. Laws 1915, §§ 7694-7697), is valid or invalid. But I do not think plaintiff can question its validity. While plaintiff's caretaker, who had obtained from the State a large number of fish and planted them in the river, claims he did so without plaintiff's authority, another one of plaintiff's employees testified: "Mr. Collins told me that he had gotten fish from the State and planted them there." Having had the benefits of the bounty bestowed by the State, he cannot contest the validity of the conditions attached by the State to its acceptance. People, for use of Ostapow, v.Casualty Co., 222 Mich. 296, and authorities there cited.

I agree that the judgment should be reversed with direction to enter judgment on the verdict.

SHARPE, SNOW, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.