Michigan Court of Appeals Resolves Riparian Rights Title Dispute

On February 4, 2021, the Michigan Court of Appeals issued an Opinion in the matter of Devils Lake Ventures, LLC v Devils Lake Hwy Acreage, LLC, unpublished per curiam opinion of the Court of Appeals, issued February 4, 2021 (Docket No. 349166). In Devils Lake, the Court of Appeals analyzed riparian property rights to resolve a dispute of competing claims to ownership of bottomland property under water in Devils Lake in Lenawee County. As analyzed in further detail below, the Devils Lake case provides an important precedent in resolving competing claims to ownership of land that is submerged below water.

What Are Riparian Rights?

In Michigan, “riparian land” is defined as “a parcel of land which includes therein a part of or is bounded by a natural water course.” Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967). A “riparian proprietor” is “a person who is in possession of riparian lands or who owns an estate therein.” Id. Although there is a distinction between the terms riparian rights and littoral rights, the two are often used interchangeably. “Strictly speaking, land which includes or abuts a river is defined as riparian, while land which includes or abuts a lake is defined as littoral.” Thies v Howland, 424 Mich 282, 288; 380 NW2d 463 (1985). “Erecting or maintaining a dock near the water’s edge is a riparian or littoral right.” Dyball v Lennox, 260 Mich App 698, 705; 680 NW2d 522 (2004).

Under Michigan law, “the riparian proprietors own to the middle of the lake.” Burt v Munger, 314 Mich 659, 662; 23 NW2d 117 (1946). “The rights of a riparian owner are somewhat similar to those of an abutting owner in the case of highways and streets. The latter owns the fee to the middle of the highway or street, subject only to the easement in the public to use the same for highway or street purposes.” Hall v Wantz, 336 Mich 112, 117; 57 NW2d 462 (1953).

Michigan Land Title Standard 24.2 provides: “Title to Land Submerged by Waters of Natural Watercourses Other than the Great Lakes is Vested in the Abutting Landowners.” In addition, Michigan Land Title Standard 24.4 provides that land abutting a natural watercourse has the right to “accretions and relictions”. An accretion is an increase in land area due to the permanent retreat of the high-water mark of a waterfront property. A reliction is an increase in the land area due to the gradual receding of a body of water. In contrast, Michigan Land Title Standard 24.1 provides that title to great lakes bottomlands is held by the State in fee simple and in trust for the people of the State of Michigan, unless the land has been patented or lawfully conveyed by the United States or the State of Michigan.

Before 1967, the Michigan Supreme Court held that, by operation of law, riparian rights attach to lots bounded by natural water courses unless the deed contains a reservation or declaration that riparian rights do not pass under it. See Bauman v Barendregt, 251 Mich 67, 69–70; 231 NW 70 (1930). However, the Michigan Supreme Court’s holding in Thompson, supra, clarified that riparian rights may not be severed from riparian property:

We hold that what is meant by this ‘reservation’ of riparian rights is merely the reservation of a right of way for access to the watercourse. … We hold that riparian rights are not alienable, severable, divisible or assignable apart from the land which includes therein or is bounded by a natural watercourse.

Thompson v Enz, 379 Mich 667, 685; 154 NW2d 473 (1967). More recently, the Michigan Court of Appeals reaffirmed this principle and held: “Thus, while recognizing that riparian ownership rights may not be transferred apart from riparian land, the Supreme Court established the critical principle that rights normally afforded exclusively to riparian landowners may be conferred by easement.” Little v Kin, 249 Mich App 502, 511; 644 NW2d 375 (2002).

Relevant Facts in Michigan’s Devils Lake Case

The Plaintiff in Devils Lake purchased land that abuts Devils Lake in Lenawee County in 2014 after a foreclosure of the prior owner who operated a marina on the property for many years. The dispute in Devils Lake concerned the bottomland property that abuts the Plaintiff’s shoreline, but is submerged under Devils Lake. The Plaintiff filed a quiet title action to the disputed bottomland property, contending that it acquired riparian or littoral rights to the bottomland property as part of its purchase of the upland property in 2014.

The Defendant and neighboring property owner responded by arguing that  that Plaintiff’s chain of title did not include the disputed bottomland property because Plaintiff’s chain of conveyances only conveyed the property up to “along the water.” The Defendant also claimed superior title to the disputed bottomland property because of a conveyance Defendant received from previous owners who were uncertain what rights, if any, they held in the disputed property. The previous owners that conveyed whatever rights they had in the disputed property acquired their property pursuant to a federal land patent dating back to the nineteenth century, before Michigan achieved statehood.

Following a bench trial, the trial court issued a written opinion in which it agreed that Plaintiff met its burden of establishing superior title to the disputed bottomland property and held that Plaintiff’s purchase of the upland property included littoral rights to the abutting bottomland property. The trial court held that Plaintiff had the superior claim to the property because it recorded its deed in 2014, almost a year before the Defendant entered into the purchase agreement to acquire any interest the previous owners may have had in the disputed bottomland property. The trial court also held: “Further, riparian rights cannot be severed from the riparian lands, and as Plaintiff owns the littoral property, Plaintiff maintains possession of the littoral rights to the bottomlands south of the littoral property, subject to standard division of bottomlands of all littoral owners.” In affirming the ruling of the trial court, the Michigan Court of Appeals held:

In sum, defendants’ request that this Court allow the bottomland abutting plaintiff’s property to be severed and treated as a separate parcel does not find support in existing law. Contrary to what defendants argue, the fact that the disputed bottomland property was originally part of a federal patent did not foreclose the trial court from applying this state’s law of riparian and littoral rights to determine the present dispute involving submerged property on an inland lake. Accordingly, we affirm the trial court’s order quieting title to the disputed property in favor of plaintiff.

Have a Riparian Dispute? Contact the Michigan Condo Lawyers at Hirzel Law

The law governing riparian rights and littoral rights can be confusing and difficult to navigate. The Court of Appeals Opinion in Devils Lake is a helpful reminder that under Michigan law, riparian rights are not alienable, severable, divisible or assignable apart from the land which includes therein or is bounded by a natural watercourse. Although Devils Lake provides a helpful reminder of this principle, riparian rights are complex and a careful review of the chain of title and caselaw dating back over a century is almost always necessary to analyzing a riparian rights dispute. Obtaining a professional legal opinion regarding riparian property rights may help property owners in understanding their rights and potentially avoiding a dispute with neighboring property owners before one arises.

Brandan A. Hallaq is an attorney with Hirzel Law, PLC where he litigates cases involving defective construction, contract disputes, shareholder/member disputes, quiet title actions to determine interests in property, enforcement of restrictive covenants, real estate foreclosure actions, and bankruptcy matters representing creditors. Mr. Hallaq is also a licensed Real Estate Broker in the State of Michigan and leads the real estate transactions department at Hirzel Law, PLC where he negotiates and prepares the necessary documents for business and real estate transactions, including purchase agreements, franchise agreements, loan/financing documents, and commercial and residential leases and mortgages. In each year from 2018 through 2021, he has been recognized as a Rising Star in the area of real estate law by Super Lawyers Magazine, a designation that is given to no more than 2.5% of the attorneys in the State of Michigan each year. He was also recognized as a 2020 Up & Coming Lawyer by Michigan Lawyer’s Weekly, an award given to no more than 30 attorneys in the state each year, and he was recognized in the inaugural issue of the 2021 Best Lawyers in America: “Ones to Watch” list for professional excellence in real estate law. Mr. Hallaq obtained his Juris Doctor degree, cum laude, from Wayne State University Law School where he served as an editor on the Wayne Law Review. Prior to joining Hirzel Law, PLC, Mr. Hallaq worked for a Federal Judge and in a Fortune 500 corporation’s in-house legal department. He can be reached at (248) 480-8704 or at bhallaq@hirzellaw.com.

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