inal action of the board and the alleged default of Erwin and of respondent in not beginning and in not completing two of the dams on or before April 1, 1909, declared all rights under the said original action of the board forfeited. Of this action Erwin and respondent were notified.

It is charged in the information of the attorney general that respondent is unlawfully exercising the right, franchise, and privilege

"Of maintaining a certain stone and concrete dam thirty-eight feet in height in and across the Muskegon river, a navigable stream, in the township of Mecosta, county of Mecosta, in said State, said dam being erected on section eleven, in township fourteen north, range ten west, the west end of said dam being built upon lot eleven and the east end of said dam on lot five of said section eleven; and of operating the said dam for the purpose of producing water power to be used in generating electricity for furnishing electricity and electrical light, heat, and power."

The court is asked to enter a judgment "excluding it from such franchises and privileges." There is a plea, which was replied to by the attorney general, and pursuant to a stipulation some testimony was taken by a commissioner. The river in its natural state is not in fact navigable except for floating forest products and small boats. The corporate existence of respondent is not attacked, nor its right to exercise its corporate franchises and to do business within the State. The proper construction of the dam which was built is not disputed. No interference, in fact, with any right of the public in the stream is suggested. It is the contention of the attorney general that Erwin secured by the action of the board of supervisors which has been described a franchise granted by the State through the agency of the board; that it was single and indivisible, and that the failure to construct any of the dams is reason for declaring forfeited all rights based upon the said action of the board. This presents the question to be decided. It is, however, urged by the respondent that the large private and semi-public interests

which will be disturbed by a judgment of ouster, interests arising partly out of a wide distribution of bonds having for their security the property in question, requires that the court should decline to enforce the remedy proposed.

OSTRANDER, J. (after stating the facts). It is the rule in this State, sustained by an unbroken line of decisions, that one who owns land bordering a stream, whether navigable or not, owns the bed of the stream to the center or the thread thereof. Such ownership is private; such public rights as exist are simply easements, or privileges, and, as a general proposition, it is settled that the owner may do what he pleases with the land under the water so long as he does not interfere with the public enjoyment. In the opinion of this court in City of Grand Rapids v. Powers, 89 Mich. 94 (50 N. W. 661, 14 L. R. A. 498, 28 Am. St. Rep. 276), will be found references to most of the decisions of this court upon this subject to that time. It is unnecessary to refer to them here. This rule of the State is the rule of the Federal courts with respect to waters within this State. Grand Rapids, etc., R. Co. v. Butler, 159 U. S. 87 (15 Sup. Ct. 991); United States v. Water Power Co., 209 U. S. 447 (28 Sup. Ct. 579). In Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209), this court follows and approves the rule stated in Brown v. Chadbourne, 31 Me. 9 (50 Am. Dec. 641), that the true test of navigability—

"To be applied in such cases is, whether a stream is inherently and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs. When a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it."

The constitutional provision in force when authority to erect the dams was given reads:

"No navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county under the provisions of

law. No such law shall prejudice the right of individuals to the free navigation of such streams, or preclude the State from the further improvement of the navigation of such streams." Const. of 1850 [Sec. 14, Art. 8, Const. of 1909], Art. 18, § 4.

It was said in Shepard v. Gates, 50 Mich. 495, 497 (15 N. W. 878, 879):

"The clause in the Constitution providing that 'no navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county, under the provisions of law,' has been understood as adopted in furtherance of the policy of the Ordinance of 1787, which stipulated that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free.'"

The legislation in force when such authority was given is found in 1 Comp. Laws, §§ 2494, 2495. In terms, power is given to boards of supervisors to permit or prohibit the construction of any dam over or across any navigable stream. It is required that a petition for leave to construct a dam across any such stream shall be presented to the supervisors which shall set forth certain matters and the board is empowered to "grant or refuse the prayer of such petition." If they

"Allow the said dam to be constructed, the petitioners shall be at liberty to construct the same by complying fully with the terms and conditions set forth in their petition; and after having obtained such right, and constructed such dam, such petitioners, their heirs, successors, or assignees, may, if such dam be destroyed, or decayed, construct a new dam, subject to all the same terms and conditions, on the same site, without again applying to such board."

The matters which are required to be stated in the petition are the purpose, location, height, and description of such dam, and whether it is proposed to construct a lock, or chute, or apron, and of what description, for the passage of boats, vessels, rafts, or timber. Reading these provisions together, and considering also the rule of private

property in the bed of streams, they amount to a legislative construction of the Constitution in harmony with the idea that what was intended to be preserved and conserved was the public right of navigation in the streams of the State. It is therefore apparent that the power of boards of supervisors in the premises is limited both by the purpose for which the power is delegated and by the legislation which the Constitution itself makes necessary. They do not act as agents for the county, but as agents of the general public. And if it is assumed that, in view of the constitutional provision, the legislature has not the power to determine the circumstances and conditions according to which the supervisors shall give or withhold assent to the building of dams, it must still be admitted that the circumstances and conditions to be considered by the supervisors in each case are such as relate to the public easement in the stream which it is desired to dam. In fact, as an examination of the statute will disclose, and as is in keeping with the public interest involved, the powers conferred upon supervisors with respect to bridges are very different from those conferred with respect to dams. It is only with respect to streams actually or strictly navigable that permission to bridge is required at all. other streams, although navigable for certain purposes, as for floatage, the power conferred is one to make general rules and regulations as to the kind of bridges and the mode of constructing the same. See Shepard v. Gates, supra; Stofflet v. Estes, 104 Mich. 208 (62 N. W. 347). As to dams, as has been stated, the petition for leave to construct must set out certain facts, and the supervisors, and they are by the act given no other power, "may grant or refuse the prayer of such petition."

It is not pretended that each of the structures described in the petition which was presented to the supervisors of Mecosta county was not calculated to preserve and conserve all public rights in the stream. It is not claimed that the single dam which was erected interferes in any way, in fact, with the public easement, or with such use

of the stream by the public, for navigation or otherwise, as the nature of the stream will permit. It is not claimed that with respect to preserving or safeguarding any public interest one of the proposed dams bore to any other of them the relation of a part to a whole; that the scheme or plan considered by the supervisors was a single one consisting of three dams. In this respect the case is unlike the one of People v. Improvement Co., 103 Ill. 491, cited by the attorney general. Without attempting here to set out the facts of the case, it is sufficient to say that the essence of the decision rendered, the theory according to which the court acted in sustaining the demurrer to respondent's plea, is expressed in the opinion of the court at page 510 of People v. Improvement Co., supra, where it is said:

"Had there been but the omission of some duty of minor importance, the alternative of a fine might properly be considered; but the nonperformance here is of a thing which is of the essence of the contract-it goes to the object of the incorporation, not doing the very thing the performance of which was the purpose and object for which the company was instituted. It is failure by the corporation to act up to the end of its creation. The demand of public good is nothing less than that there should be a resumption by the State of the corporate franchise of which there has been such misuser-that the company should be made to give way, so as to afford opportunity, through some other instrumentality, for the accomplishment of this work of public advantage, the improvement of the navigation of these two rivers, or at least of the Kankakee, to the Indiana State line."

There is no reason to believe that authority would not have been given to erect any one of the dams if the petitioner so desired. Forfeiture cannot therefore be justified upon the authority of cases which hold that when a franchise is granted to build a railroad, a waterworks plant, or to make any single, indivisible, public improvement, and there is a failure to complete the work, the franchise may be reclaimed by the State. If we construe the grant, condition, and all as made with reference to the