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necessary that either writ shall actually issue. No costs will be awarded.

GRANT, C. J., and BLAIR, MONTGOMERY, HOOKER, and MOORE, JJ., concurred.

MCALVAY, J. (dissenting). I am not able to agree with the majority of the court in the conclusions arrived at in the opinion filed.

I think that the distinction which seems to me very clear between recounts in election cases and this case under the primary election law has been lost sight of. The plain intent of this law was to correct abuses which had arisen under the convention system of making nominations, and give the individual member of a political party an opportunity to make his selection of candidates for office on his party ticket, and to have that selection counted as made by him. It was to remove all improper influence and manipulation from primaries and conventions, and to permit a political party to select its candidates as a distinct political organization unassisted by zealous and willing members of other parties. As a basis to this intended reform, party enrollments are provided for, recorded in books furnished by the Secretary of State. Days upon which such enrollments may be lawfully made are fixed. All of this, including all corrections, changes, new enrollments, are made a matter of record in the office of the Secretary of State. No one may lawfully vote at any prlmary election who is not lawfully enrolled in the enrollment of the party to which he belongs or with which he affiliates. This enrollment is not for all its uses and purposes identical with a registration of voters. It performs some of the functions of a book of registration; but it has been adopted for other and different purposes. Its primary object is the separation of the voters in each precinct into the parties to which they belong, and to maintain such separation absolute and complete, and to prevent any one voting for party candidates not lawfully authorized so to do. This enrollment or a certified copy is before the inspectors of election of every precinct and the several canvassing boards of the districts and state. It is intended to be the preserver of party solidarity. The right to be declared the nominee of a party to a certain office is not the right to an office or a franchise, nor is it a constitutional right. But the machinery furnished by the Legislature for the purpose of permitting the electorate of the different parties to confer such rights upon some of its individual members is within the powers given the Legislature under the Constitution. The people have the right to have this machinery so operated that the plain legislative intent shall be given effect; hence the importance of a correct determination of the important question here involved. It is clear

to my mind that the party enrollment is so carefully safeguarded by this statute because the Legislature knew that the success or failure of this legislation depended upon it. If party lines could be unlawfully invaded at the ballot box by outsiders on primary election day without any possible check or redress, this last condition of party politics would be much worse than the first.

It appears to me that the Legislature has provided both the check and the redressthe first by the party enrollment; the second by the recount. It is not contradicted that no one could vote except he was lawfully enrolled or entitled to enrollment in the party to which he claimed fealty. The statute provides the record to be duly made if he is enrolled on election day. I insist that this record (the party enrollment) is the only authority for receiving the party votes, and the only basis upon which may be determined the fact that a candidate for governor has received the required percentage of all the lawful votes cast by his party for that office. The general election laws of the state are applicable to a primary election where such laws or their construction already given will not contravene the plain provisions and intent of such law, but to no greater extent. The general election laws know nothing about parties except as printed upon a common ballot. The primary law is based entirely upon party recognition. Under the general election laws, an individual is given his remedy by quo warranto to try the title to an office to which he claims to be entitled. Under the primary election law, the party and the individual can only know whether a lawful nomination has been made by having recourse to a recount, and the legality of the votes cast for the candidates of a party can only be determined by the party enrollment, which has been made the basis of the proceeding from the beginning.

The case of May v. Board of Canvassers, 94 Mich. 505, 54 N. W. 377, which is relied upon as determining this case is distinguishable, first, because the party had all the remedy to redress his wrong by quo warranto; and, second, because it was an election to an office, and not a party primary, and the registration excluded was not identical with the party enrollment. It was not before the canvassing board, and could not be there lawfully. From it the board was not required, as in the case at bar, to determine that a candidate had received 40 per cent. of all the votes lawfully cast before such candidate could be declared nominated for the office of governor. I think the argument is captious which confines the work of the board to merely counting the votes in the boxes. The statute means the counting of the lawful votes cast, and the enrollment is the only guide which points out such votes. I also consider that the argument that sufficient time does not intervene in which the respond

ent board may complete its recount of no force. No such presumption arises, and no facts appear to create it. To me the view of this statute taken by the respondents is a rational one. By it nothing is considered except such matters as are of record, and, in fact, before them. They are vested with the same powers as the several boards of inspectors in so far as said inspectors have acted within the law, and, if said inspectors have unlawfully allowed votes to be cast by men not lawfully enrolled, respondents may and should correct such unlawful action by drawing out the surplus votes. Other errors pointed out by the general law the board have authority to correct. No authorities in like cases have been furnished by counsel. Primary election laws are of recent growth. The utmost care should be taken in their construction, and to give them effect if possible, or to point out clearly and logically the reasons why such effect cannot be given.

It seems to me that the logical conclusion of the majority opinion is to hold the statute invalid and incapable of being made effective to carry out the plain legislative intent. A well-settled principle of statutory construction is that effect will if possible be given to the legislative intent. In this case, to give such intent effect and save this remedial legislation and make it workable requires no strained construction. It only permits the officers to use the material put into their hands by the Legislature with the clear intent that it should be used.

The prayers of the petitioners in both cases should be denied.

STUART v. GREANYEA et al. (Supreme Court of Michigan. Sept. 10, 1908.) 1. NAVIGABLE WATERS-RIPARIAN RIGHTS.

Riparian rights in the Great Lakes do not extend beyond access to navigable water. 2. SAME.

Every shore owner has a right of access to navigable water, subject to a general right of navigation.

3. SAME-WHARVES, DOCKS, AND PIERS.

The general rule is that frontage on navigable waters for wharfage is proportionate to the extent of shore frontage.

4. SAME-FISHING-STATUTES-CONSTRUCTION. Pub. Acts 1905, p. 170, No. 122, prohibits any person from driving, for the purpose of fishing, any stakes or setting any nets in the waters of Saginaw Bay contiguous to the shores of Arenac and Iosco counties for a distance of two miles from said shores, unless such person is the lawful owner or occupant of the shore frontage opposite to which such stakes are driven or nets set, etc. At each end of an inner bay forming part of Saginaw Bay was a pronounced cove, owing to the existence of two promontories extending towards the east and southwest, respectively, so that the shore of the bay was much longer than the distance between the headlands at the entrance. Held, that the intent of the statute was to confine the right of each owner of land bordering on the bay to the limits of pre-existing riparian rights, and to the rules applicable to the determination of such limits, except as to the distance the right ex

tends into the bay; that, assuming that the line of navigable water was outside of the inner bay, all lines must converge to the distance between headlands, the corners of abutting parcels to furnish starting points for each parcel, and the line between the headlands to be taken as a base line to which the various lines must converge; that, there being lands from which a straight line could not intersect such base line, other inner base lines should be established; that the center of the shore line was to be taken as a point to which lines from the headlands should converge and meet, lines from the shore to run to these inner base lines, striking the same at points proportionately the same distance apart as on the shore line, and the process to be repeated in running the lines between the base lines.

Appeal from Circuit Court, Arenac County, in Chancery; Nelson Sharpe, Judge.

Action by John Stuart against Joseph Greanyea and others. From a judgment, defendants appeal. Cause remanded, with directions.

Argued before GRANT, C. J., and HOOKER, MOORE, CARPENTER, and McALVAY, JJ.

S. E. Hayes (De Vere Hall and E. V. Ingersoll, of counsel), for appellants. W. C. Cook, for appellee.

HOOKER, J. The parties to this suit own adjoining premises, bordering Saginaw Bay. The complainant's bill was filed to enjoin defendant from fishing with set nets within two miles of the shore at a place alleged to be in front of complainant's land, and in which he had riparian rights, and defendant had not. The defendant has appealed.

Apparently it is claimed by counsel for both parties that fishing in the Great Lakes was in common until the enactment of Act No. 94, p. 159, Pub. Acts 1869. That was a statute which prohibited the placing in waters where fish are taken by the legal owner or occupant of adjacent lands any ship ballast, stone, sand, coal cinder, ashes, log slabs, decayed wood, bark, sawdust, or obstruction or filth of any other description, or placing or driving any pound net piles or stakes or any other piles or stakes or posts, or building any platforms or pier or any species of seines or continuous trap nets to the extent of the breadth of such legal owner or occupant's lands so far as the channel banks of rivers, and to one mile from the beach or shore, at low-water mark of the lakes, straits. inlets, and bays or said waters fronting such owners' or occupants' lands, and subjecting any boat owner or captain to punishment who should willfully run into or molest any pound net, etc. In 1905 an act was passed prohibiting any person for the purpose of fishing from driving any stakes or setting or placing any nets in the waters of Saginaw Bay contiguous or adjacent to the shores of Arenac and Iosco counties for a distance of two miles from said shores, unless such person is the lawful owner or occupant of the shore frontage opposite to which said stakes

are driven or nets set or placed, or unless such person shall have a license to do so from said owner or occupant. Section 2 made the act penal, and also provided a civil liability, damages to be recovered by such owner, occupant, or licensee in an action of trespass. See Act No. 122, p. 170, Pub. Acts 1905.

Assuming that the law is constitutional and gives exclusive rights-questions not before us on this record-it is only necessary to decide where the line separating rights under it should be located in Wigwam Bay, for there is nothing indicating a necessity that it be settled for the entire two miles, unless it shall be found necessary to do so in order to determine its location in Wigwam Bay. We think it is not. We attach a map to this

nounced cover, owing to the existence of two promontories or capes that extend toward the east and southwest, respectively. The easterly one is called "Green's Point," the westerly "Pine River Point." The testimony convinces us that a bar opposite or immediately in front of the entrance of the cut deflects the main channel from the cut toward Green's Point, and that the fish as a rule follow this channel. The defendant before the filing of the bill has at times set his nets across the entire front of the complainant's lands, but we understand that he now claims only the right to extend his nets from the center of Wigwam dredge cut at the outlet, south six degrees east, into the bay, for a distance of two miles, and that his nets were so set at the time of the hearing. On the

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opinion. The lands of the parties are upon sections 35 and 36, and the boundary line between them is at or near the center of what is called "Wigwam Dredge Cut," shown on the map by a heavy black line, a short distance east of the section line between the sections named. This cut was made for the purpose of floating logs, and it is our understanding that it extends from Rifle river to Wigwam Bay, and is a short cut for bringing logs from the river to the mills on that bay, and that fish are in the habit of going through the cut, on their way to the river, during the spawning season. Wigwam Bay, so called, has an area of something over two miles. It is shallow, and at each end there is a pro

other hand, the complainant contends that the line should be ascertained by finding the center line of Saginaw Bay, and running a line at right angles therewith to the boundary line between the parties' lands, or, if that is not the rule, such line should be run at right angles with the line of navigable water; i. e., the line separating the blue and green water where the depth is about 16 feet, some distance outside of Wigwam Bay. If defendant's contention is correct, viz., that he has an exclusive right of fishing, the entire width of his land for two miles out it is obvious that every other proprietor cannot have a similar right, for the reason that the opening of the bay is not wide enough to

accommodate all. Moreover, if "opposite" is held to mean strictly "in front of," any attempt to extend straight lines for two miles would make confusion through the intersection of lines. If, on the other hand, complainant's theory is to be adopted, all abutting premises lying east of defendant's land will be cut off from such right by Green's Point. We understand it to be conceded by both parties that, previous to the enactment of the statute of 1869 referred to, the riparian rights of abutting proprietors did not include an exclusive right to set nets in the waters included in what are ordinarily denominated "riparian waters," and that riparian rights, whatever they were, did not necessarily extend two miles or one mile from shore. 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. Sterling v. Jackson, 69 Mich. 509, 37 N. W. 845, 13 Am. St. Rep. 405. See People v. Silberwood, 110 Mich. 103, 67 N. W. 1087, 32 L. R. A. 694; People v. Warner, 116 Mich. 228, 74 N. W. 705; Brown v. Parker, 127 Mich. 390, 86 N. W. 989, recognized the rule. Ainsworth v. Fishing Club (Mich.) 116 N. W. 992. It would seem to follow that the right asserted here by each party is no more than a statutory right; and that we understand to be their claim. Whether it is open to the criticism of being class legislation, and whether the Legislature may grant exclusive rights of fishery over any portion of the public waters, are questions that we will not pass upon in this case, as we cannot properly do so upon this record.

Assuming it to be a valid statutory right, we must ascertain the meaning of the statute. An easy way to dispose of it would be to adopt defendant's theory that it was intended to give every abutter an exclusive right to fish on a strip as wide as his lot extending out two miles, and, if the shore were straight and there were no headlands, no objection could be made to it. But it is not straight and shores seldom are; and counsel have not been able to suggest any rule of division that seems to offer a fairer solution then the general rule for the ascertainment of access to navigable water. This rule would give every landowner on the bay a right of access to a two-mile area, but the shore of Wigwam Bay is much longer than the distance between the headlands at the entrance of the bay, and, as the lines of all must pass between the headlands in order to extend to the two-mile limit, one of two things necessarily follows: (1) That lands whose frontage collectively equals the distance between headlands only can have such rights under the statute; or (2) such lines must all converge. If we were to adopt the former theory, we should then be perplexed to ascertain which of the several parcels were to be denied the right. If the latter, we are confronted with the question whether any of the shore line between headlands

117 N.W.-42

should be omitted from the operation of the statute, and, if so, how far this omission should extend. The difficulties of the former and the palpable injustice of an arbitrary selection of favored lands leads to discard it. We cannot believe that such was the legislative intent, and we are therefore forced to the conclusion that the real intent was to confine the right of each landholder to the limits of pre-existing riparian rights, and to the rules applicable to the determination of such limits, except as to the distance the right extends into the bay, riparian rights in the Great Lakes not extending beyond access to navigable water, whereas these rights may. As we understand these rights and rules, every shore owner has a right of access to navigable water, subject to the general right of navigation. If we assume that the line of navigable water is outside of Wigwam Bay, all lines must converge to the distance between headlands. The corners of the abutting parcels furnish starting points for each parcel. Therefore we should take an imaginary line from Pine Tree Point to Green's Point as a base line, to which the various lines must converge. A glance at the map is sufficient to show that there are lands from which a straight line could not possibly intersect the base line, and it is therefore necessary to establish another base line. Were there headland on both sides of the inner coves, we should perhaps take those as termini for such inner lines, but there are not, and we therefore establish the center of the shore line as the point to which lines from Pine Tree Point and Green's Point shall converge, and meet. Lines from the shore will run to those inner base lines, striking the same at points proportionately the same distance apart as on the shore line, and the process will be repeated in running the lines between the base lines. This seems to us to be the only practicable method of making a fair division.

We should consider whether this disposition of the question has the sanction of authority. We deem it an elementary rule that all shore owners on the lakes have a right to access to navigable water, if it is feasible to give it to them, and that it is the general rule that frontage on navigable waters for wharfage is proportionate to the extent of shore frontage. For this state the question was settled in Blodgett & Davis, etc., v. Peters, 87 Mich. 498, 49 N. W. 917, 24 Am. St. Rep. 175, and the method to be adopted in ordinary cases is there pointed out. But that case, recognizing the difficulty of an inflexible rule, gives prominence to the fact that a fair apportionment is the object in view, and asserts the propriety of modifying the rule, to that end, where circumstances seem to require it. Something like the modification in this case was resorted to in that case. See, also, Gould on Waters, 88 149, 164, 165. Under this plan the rights of these parties can be easily ascertained. Manifestly

a line from the center of the shore line to the center of the outer base line can be easily fixed. To ascertain the boundary line, it is only necessary to ascertain the distance from the center of the shore line to the point on the shore where the lands of the parties meet, and a proportionate distance on the base line. A straight line between them will be the boundary. It is illustrated upon the map. As shown there, the nets represented by the dotted line appear to be wholly within the defendants' allotment, but we cannot be sure that our measurements are accurate.

We cannot ascertain from the proofs in the case the length of either base line or the center of the shore line. Therefore we find it necessary to remand the cause, with directions to the trial court to take the necessary proof and make such changes in the decree as may be necessary to make it comply with the requirements of this opinion. Costs of this court will abide the event.

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In an action for the death of a person caused by the running away of a team, where the declaration counted upon the team being frightened at a defect in a highway crossing, the fact that the proof showed that they were frightened before reaching the crossing by a noise at a furnace would not constitute a variance between the allegations and proof, if it appeared that there was additional fright at the crossing; and it should be determined that the previous fright had not resulted in the driver losing control of the team in such a sense as to make their previous fright the proximate cause of the injury. 2. SAME-NEGLIGENCE OF CITY-ACCUMULATION OF ICE AND SNOW QUESTION FOR JURY.

Whether a city was negligent in allowing snow and ice to accumulate in a highway on each side of a railway crossing, in such a manner as to make an unnatural hump or ridge on either side of the railroad track, held to be a question for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1747.]

3. SAME-HORSES NOT UNDER CONTROL.

Horses are not to be considered beyond control of their driver where they merely shy or start, and for a moment have their own way. 4. SAME PROXIMATE CAUSE OF INJURY QUESTION FOR JURY.

Whether an accumulation of ice and snow, causing ridges in a highway, and not an escape of steam from a furnace near the highway which had caused a team to shy, was the proximate cause of an injury resulting from their running away, held to be a question for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1753.]

Error to Circuit Court, Marquette County; John W. Stone, Judge.

Action by Laughlin Johnson, administrator of Margaret M. Johnson, against the city of Marquette. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before GRANT, C. J., and BLAIR,

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the condition of the street. The crossing of the highway in question over the switch of the Marquette & Southeastern Railway is indicated. The injury to the plaintiff occurred at a point some 350 feet north of this crossing. A team drawing a sleigh conveying upon it a load of wood and driven by Herman Prebe was approaching this crossing from the south, and while upon the

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