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New York.

Williams v. Brooklyn (1898) 33 App. Div. 539, 53 N. Y. Supp. 1007; Wolf v. Third Ave. R. Co. (1902) 67 App. Div. 605, 74 Ν. Υ. Supp. 336.

Rhode Island. - O'Donnell v. Rhode Island Co. (1907) 28 R. I. 245, 66 Atl. 578.

Texas. Gulf, C. & S. F. R. Co. v. Coon (1888) 69 Tex. 730, 7 S. W. 492; Missouri, K. & T. R. Co. v. Hanning (1897) Tex. Civ. App. -, 41 S. W. 196, reversed on other grounds in (1897) 91 Tex. 347, 43 S. W. 508.

In determining whether or not he will submit to an operation involving danger and uncertainty, the injured person may exercise his judgment. Birmingham R. Light & P. Co. v. Anderson (1909) 163 Ala. 72, 50 So. 1021; Stewart Dry Goods Co. v. Boone (1918) 180 Ky. 199, 202 S. W. 489; Maroney v. Minneapolis & St. L. R. Co. (1913) 123 Minn. 480, 49 L.R.A. (N.S.) 756, 144 N. W. 149; Baer v. Lehigh & H. River R. Co. (1919) 93 N. J. L. 85, 106 Atl. 421, affirmed on other grounds in (1919) 93 N. J. L. 446, 108 Atl. 253; Williams v. Brooklyn (1898) 33 App. Div. 539, 53 N. Y. Supp. 1007; Blate v. Third Ave. R. Co. (1899) 44 App. Div. 163, 60 N. Y. Supp. 732; Mattis v. Philadelphia Traction Co. (1897) 19 Pa. Co. Ct. 106, 6 Pa. Dist. R. 94; Kehoe v. Allentown & L. Valley Traction Co. (1898) 187 Pa. 474, 41 Atl. 310.

On this point, the court said in McNamara v. Metropolitan Street R. Co. (1908) 133 Mo. App. 645, 114 S. W. 50: "We do not think plaintiff should be criticized and punished on account of his failure to undergo a surgical operation. He should be accorded the right to choose between suffering from the disease all his life, or taking the risk of an unsuccessful outcome of a serious surgical operation. Certainly, defendant, whose negligence produced the unfortunate condition, is in no position to compel plaintiff again to risk his life in order that the damages may be lessened. To give heed to such contention would be to carry to an absurd extreme the rule which requires a person damaged by the wrong of another to do all that rea

sonably may be done to minimize his damages."

The court, in Louisville & N. R. Co. v. Kerrick (1917) 178 Ky. 486, 199 S. W. 44, said that as a general rule one injured must make his damages as light as possible, but that this rule does not apply where an operation would be serious and critical, and likely to be attended with some risk, a possible failure, and probable death, and held that one who had sustained a hernia was not required to submit to an operation or suffer his damages to be reduced, where the evidence showed that an operation might not prove successful and might possibly result in death to the patient.

And to the same effect is Stewart Dry Goods Co. v. Boone (1918) 180 Ky. 199, 202 S. W. 489, where it was held that, although one's leg possibly could have been remedied by an operation, his failure to submit to one would not preclude his recovering substantial damages, where the operation would not have been a minor, but a serious one.

And in Freeman v. Chicago, M. & St. P. R. Co. (1916) 52 Mont. 1, 154 Pac. 912, 12 N. C. C. A. 591, it was held that one who was injured in a railway accident, and had had one operation performed which was unsuccessful, was not bound, in order to reduce damages, to have another major operation performed, the results of which were problematical. The court said: "We recognize the rule that an injured person must use ordinary diligence to effect a cure, and thus to minimize the damages but it would be carrying this rule to an absurd extreme to hold that a man who has submitted to one operation, which failed, must take such chances with his life and his health as may be involved in a second, risking failure in that as well, in order that the damages caused by another's negligence may possibly be reduced." And to the same effect is Martin v. Pittsburgh R. Co. (1913) 238 Pa. 528, 48 L.R.A. (N.S.) 115, 86 Atl. 299.

And in Snyder Ice, Light & P. Co. v. Bowron (1913) Tex. Civ. App. -, 156 S. W. 550, where the plaintiff

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exercised ordinary care in securing treatment, and there was no question but that the treatment given was proper, it was held that ordinary care to reduce the damages did not require that he have an elbow which was fractured rebroken, in order to eliminate the stiffness by breaking the cartilaginous mass which formed around it.

And in Bateman v. Middlesex County (1911) 24 Ont. L. Rep. 84, it was held that it was not unreasonable for a doctor fifty-five years old to refuse to submit to an operation for a fallen kidney, where there was medical authority that such an operation should not be performed on one over fifty years of age, although the attending physician advised an operation.

And in Mattis v. Philadelphia Traction Co. (1897) 6 Pa. Dist. R. 94, 19 Pa. Co. Ct. 106, it was held that although a surgical operation would practically bring the plaintiff complete relief, he was not bound to submit to it, where it was an operation of comparatively recent date, and the medical profession was not settled in regard to it, or the best method of performing it.

And in Schneider v. South Tacoma Mill Co. (1911) 65 Wash. 590, 118 Pac. 750, it was held that the injured person might be found free from fault in failing to submit to a recommended operation, where he did so upon the advice of a surgeon, between whom and another surgeon there was a dispute as to what would have been the proper treatment.

And in Lobban v. Wabash R. Co. (1911) 159 Mo. App. 464, 141 S. W. 440, where an injured person refused to submit to an operation advised by a physician through fear of fatal results, on account of the condition of his heart, and another physician testified that he examined the plaintiff's heart and discouraged an operation, an instruction confining the jury's consideration to whether the first physician's advice was reasonably proper was held correctly modified so as to include a consideration of the other physician's opinion.

In Stokes v. Long (1916) 52 Mont. 470, 159 Pac. 29, it was held that an

injured person was not necessarily bound to submit to a major surgical operation which might or might not result in a betterment of his condition, but that it is a question for the jury, under the facts disclosed in each case, whether the plaintiff has used ordinary care to reduce the damages.

In Atlantic Coast Line R. Co. v. Wallace (1911) 61 Fla. 93, 54 So. 893, it was held that the plaintiff was not necessarily precluded from recovering the added damages accruing from his delay in submitting to an operation advised by physicians.

It has been held that a recovery for death is not defeated by the fact that the deceased refused to act upon his physician's advice to have his injured leg amputated, where the physician testified that such an operation would merely have improved the chances of recovery. Sullivan v. Tioga R. Co. (1889) 112 N. Y. 643, 8 Am. St. Rep. 793, 20 Ν. Ε. 569.

In Guild v. Portland R. Light & P. Co. (1913) 64 Or. 570, 131 Pac. 310, it was held that the fact that a hernia caused by the defendant's negligence might possibly be cured by an operation did not prevent the recovery of damages as for a permanent injury. It is held that, if an operation involving but slight inconvenience and small expense will relieve the condition, it is the plaintiff's duty to submit to the same; and that, if he fails or neglects to do so, he cannot recover damages for the consequences which might thus be avoided. Bailey v. Centerville (1899) 108 Iowa, 20, 78 N. W. 831; White v. Chicago & N. W. R. Co. (1910) 145 Iowa, 408, 124 N. W. 309.

And in Leitzell v. Delaware, L. & W. R. Co. (1911) 232 Pa. 475, 48 L.R.A. (N.S.) 114, 81 Atl. 543, where a charge was requested that if the jury believed that the condition of the plaintiff could be relieved by a simple surgical operation, which an ordinarily prudent man would undergo, such fact should be taken into consideration as an element which would reduce the amount of damages, it was held that it should have been given, and that it was error for the court to state that the charge was affirmed,

providing the jury found that the proposed surgical operation was not a serious or dangerous one, and could be performed without any risk of failure or danger to the plaintiff. The court said: "We think the point should have been affirmed without qualification. It referred to 'a simple surgical operation which an ordinarily prudent man would undergo.' The answer ignored the feature as to what an ordinarily prudent man would do, and instructed the jury not to consider the matter, unless they found that the proposed operation was not serious or dangerous, and could be performed without any risk of failure or danger to the plaintiff. This we think was going too far. The plaintiff, of course, was entirely at liberty to refuse to submit to an operation; but if the effect of his refusal would be to retain permanently a condition which might be removed by a simple operation, which an ordinarily prudent man would, under the circumstances, undergo, that matter should certainly be taken into consideration by the jury in estimating the damages."

And in Joseph Schlitz Brewing Co. v. Duncan (1897) 6 Kan. App. 178, 51 Pac. 310, it was held that, if the plaintiff could be certainly cured by an operation that was safe and inexpensive, the recovery must be decreased to the extent that the certainty, safety, and inexpensiveness of the cure could be assured.

And it has been held that recovery for the loss of the sight of one eye cannot include damages for the probable loss of sight of the other eye, where it appeared that an operation removing the eye originally injured would save the other, as such an operation was one which reason and common sense would require the plaintiff to undergo. Freeman v. Wilson (1912) - Tex. Civ. App. -, 149 S. W.

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And in Donovan v. New Orleans R. & Light Co. (1913) 132 La. 239, 48

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L.R.A. (N.S.) 109, 61 So. 216, where the plaintiff refused to submit to an operation which involved little danger, the court, because of such refusal, reduced the damages.

In Ward v. Ely-Walker Dry Goods Bldg. Co. (1913) 248 Mo. 348, 45 L.R.A. (N.S.) 550, 154 S. W. 478, where there was evidence that an operation which was more or less dangerous would probably give relief, an instruction was sustained that it is the duty of one injured to take such steps as an ordinarily careful and prudent man would take in the exercise of ordinary care under the same circumstances, to reduce his damages to the minimum; that if the plaintiff could have had an operation which would have improved his condition, and was advised by a competent surgeon that such operation was necessary in order to improve his condition, and if such an operation would have greatly lessened his pain and mental anguish and improved his health, and by refusing to have it he failed to exercise ordinary care to improve his condition, he could recover only such sum as his damages would have aggregated if he had had the operation performed.

In Allen v. Bear Creek Coal Co. (1911) 43 Mont. 269, 115 Pac. 673, evidence was held admissible, in mitigation of damages, to show that the plaintiff's physician offered to perform, without charge, an operation which would straighten an injured finger.

In Missouri, K. & T. R. Co. v. Hagan (1906) 42 Tex. Civ. App. 133, 93 S. W. 1014, it was held that, having been denied recovery for the developments that could have been prevented by an operation to which the plaintiff, contrary to the dictates of ordinary prudence, refused to submit he was, conversely, entitled to added damages for the suffering and uncertainty of success which would attend such an operation. J. T. W.

1

CHARLES JOHNSON, Appt.,

V.

JAMES BURGHORN.

Michigan Supreme Court - September 30, 1920.

(- Mich. —, 179 N. W. 225.)

Waters - right to trap in navigable water.

1. The public has no right to anchor traps by stakes driven into the submerged land of navigable rivers the soil of which belongs to the riparian owner, nor to cut holes in the ice formed over such land and fix stakes thereto for the purpose of holding traps to catch fur-bearing animals inhabiting the waters.

[See note on this question beginning on page 241.]

ownership of bed of navigable river.

2. The owner of the land bordering on a navigable river owns the submerged land to the thread of the stream.

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Injunction - against trespass on submerged land.

4. Injunction lies to prevent continued trespass upon the submerged lands of a riparian owner in a navigable river, for the purpose of fixing traps by stakes to the submerged land or to the ice, to catch fur-bearing animals inhabiting the water.

[See 12 R. C. L. 691.]

APPEAL by plaintiff from a decree of the Circuit Court for Ottawa County in Chancery (Cross, J.), in his favor in part only, in a suit brought to restrain defendant from trapping and taking fur-bearing animals from certain property belonging to plaintiff. Decree enlarged and modified.

The facts are stated in the opinion of the court.

Messrs. Daniel F. Pagelsen and Gerrit J. Diekema, for appellant:

The owner of the shore lands owns the submerged lands connected therewith to the thread of the stream.

Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Clark v. Campau, 19 Mich. 325; Bay City Gaslight Co. v. Industrial Works, 28 Mich. 182; Fletcher v. Thunder Bay River Boom Co. 51 Mich. 277, 16 N. W. 645; A. M. Campau Realty Co. v. Detroit, 162 Mich. 240, 139 Am. St. Rep. 555, 127 N. W. 365; Sterling v. Jackson, 69 Mich. 488, 13 Am. St. Rep. 405, 37 N. W. 845.

The owner of the land not only owns the submerged lands to the thread of the stream, but also owns the ice covering the surface of the water covering the lands, and any interference with these rights constitutes a trespass.

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Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; People's Ice Co. v. The

Excelsior, 44 Mich. 229, 38 Am. Rep. 246, 6 N. W. 636; Clute v. Fisher, 65 Mich. 48, 31 N. W. 614; Bigelow v. Shaw, 65 Mich. 341, 8 Am. St. Rep. 902, 32 Ν. W. 800; Hoag v. Place (Mansfield v. Place) 93 Mich. 450, 18 L.R.A. 39, 53 N. W. 617; Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co. 102 Mich. 227, 25 L.R.A. 815, 47 Am. St. Rep. 516, 60 N. W. 681.

The gravel in the bed of the navigable streams is owned by the abutting property owner to the thread of the stream.

Archer v. Greenville Sand & Gravel Co. 233 U. S. 60, 58 L. ed. 850, 34 Sup. Ct. Rep. 567; Wear v. Kansas, 245 U. S. 154, 62 L. ed. 214, 38 Sup. Ct. Rep. 55, Ann. Cas. 1918B, 586; McMorran Mill. Co. v. C. H. Little Co. 201 Mich. 301, 167 N. W. 990.

The waters in question are admitted to be a part of Grand river, and, as such, plaintiff has the exclusive

(— Mich. -, 179 N. W. 225.)

right of hunting and fishing and, necessarily, trapping thereon.

Ainsworth v. Munoskong Hunting & Fishing Club, 159 Mich. 61, 123 N. W. 802, 153 Mich. 185, 17 L.R.A. (N.S.) 1236, 126 Am. St. Rep. 474, 116 N. W. 992, 15 Ann. Cas. 706; Hall v. Alford, 114 Mich. 165, 38 L.R.A. 205, 72 N. W. 137; Sterling v. Jackson, 69 Mich. 488, 13 Am. St. Rep. 405, 37 N. W. 845; Schulte v. Warren, 218 Ill. 108, 13 L.R.A.(N.S.) 745, 75 N. E. 783; State v. Mallory, 73 Ark. 236, 67 L.R.A. 773, 83 S. W. 955, 3 Ann. Cas. 852; State v. Shannon, 36 Ohio St. 423, 38 Am. Rep. 599.

The party whose private possession has been interfered with has a right of action for the protection of his property, and is entitled to at least nominal damages which are presumed to follow for such invasion of his rights.

Giddings v. Rogalewski, 192 Mich. 319, 158 N. W. 951; Winans v. Willetts, 197 Mich. 512, 163 N. W. 993; Marsh v. Colby, 39 Mich. 626, 33 Am. Rep. 439; Burroughs v. Whitwam, 59 Mich. 279, 26 N. W. 491.

The right of hunting and fishing (trapping) is a property interest, and not a mere privilege.

St. Helens Shooting Club v. Barber, 150 Mich. 571, 114 N. W. 399.

Mr. Charles E. Misner also for appellant.

Mr. Louis H. Osterhous, for appellee:

The rights of hunting and fishing on all public navigable waters belong in common to all the members of the public.

19 Сус. 992; 29 Сус. 330; 11 R. C. L. 1025, 1029; Carson v. Blazer, 2 Binn. 475, 4 Am. Dec. 463; Winans v. Willetts, 197 Mich. 512, 163 N. W. 993; Beach v. Hayner, 207 Mich. 93, 5 A.L.R. 1052, 173 N. W. 487; Hall v. Alford, 114 Mich. 165, 38 L.R.A. 205, 72 N. W. 137; State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580, 87 N. W. 117; 12 R. C. L. 688; Lincoln v. Davis, 53 Mich. 375, 51 Am. Rep. 116, 19 N. W. 103; Stuart v. Greanyea, 154 Mich. 132, 25 L.R.A. (N.S.) 257, 117 N. W. 655; Ainsworth v. Munoskong Hunting & Fishing Club, 153 Mich. 185, 17 L.R.A. (N.S.) 1236, 126 Am. St. Rep. 474, 116 N. W. 992, 15 Ann. Cas. 706; Bickel v. Polk, 5 Harr. (Del.) 325; Yard v. Carman, 3 N. J. L. 937; State, Roberts, Prosecutor, v. Jersey City, 25 N. J. L. 525; Polhemus v. Bate

man, 60 N. J. L. 163, 37 Atl. 1015; Sherwood v. Stephens, 13 Idaho, 399, 90 Pac. 345; Bell v. Smith, 171 N. C. 116, 87 S. E. 987; Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378; State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 1014; Meredith v. Triple Island Gunning Club, 113 Va. 80, 38 L.R.A. (N.S.) 286, 73 S. E. 721, Ann. Cas. 1913E, 531; Payne v. Providence Gas Co. 31 R. I. 295, 77 Atl. 145, Ann. Cas. 1912B, 65; Burns v. Crescent Gun & Rod Club, 116 La. 1038, 41 So. 249; Hume v. Rogue River Packing Co. 51 Or. 237, 31 L.R.A. (N.S.) 396, 131 Am. St. Rep. 732, 83 Pac. 391, 92 Pac, 1065, 96 Pac. 865; Flisrand v. Madson, 35 S. D. 457, 152 N. W. 796; Knudson v. Hull, 46 Utah, 114, 148 Pac. 1070; Forestier v. Johnson, 164 Cal. 24, 127 Pac. 156; Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148.

Stone, J., delivered the opinion of the court:

The bill of complaint herein was filed to restrain the defendant from trapping and otherwise taking muskrats and other fur-bearing animals from the property known as Eastman's or Johnson's island, in Grand river, in the county of Ottawa. The appended map or plat,

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