According to the State of Michigan Department of Natural Resources, Michigan has more than 11,000 inland lakes alone, which does not include other watercourses such as rivers, streams or creeks. Although Michigan courts refer to property rights associated with lakes as “littoral rights,” the more common term when addressing both lakes or other watercourses in Michigan is “riparian rights.” See Thies v. Howland, 424 Mich 282; 380 NW2d 463 (1985). As the weather improves, many Michigan residents are now heading back to the water for the summer. Quite often during this time of the year, disputes arise regarding who has access to a lake, who is legally entitled to install permanent or seasonal docks, and where those docks can be installed, etc. This article addresses the concept and interpretation of riparian rights, how Michigan courts review riparian rights cases, generally, and the historical context of property rights for backlot owners. To be clear, this article does not address issues related to the ownership of the ‘bottomlands’ of a lake, the difference between navigable/public waters versus non-navigable/private waters, nor changes to a shoreline by accretion/erosion/avulsion/reliction, which will likely be topics of future articles.
Historical Nature of Riparian Rights in Michigan
Historically, Michigan courts have held that water from lakes may only be used by owners of the land bordering those bodies of water, except that the public has a navigation right on navigable waters up to the ordinary high-water mark, and each owner’s usage of the water must be reasonable compared to others. See Rice v. Naimish, 8 Mich App 698; 155 NW2d 370 (1967). Thus, to have riparian rights, normally the land must have actual contact with the lake or watercourse. Rice, at 701. However, there are two primary exceptions to this general proposition: 1) an easement along a water’s edge does not eliminate riparian rights and 2) the land bordering a highway neighboring a lake still includes riparian rights. See Williamson v. Crawford, 108 Mich App 460; 310 NW2d 419 (1981) and Kempf v. Ellixson, 69 Mich App 339; 2 44 NW2d 476 (1976).
In Michigan, riparian owners have the right to construct a dock, wharf or pier to enjoy a lake. See McCardel v. Smolen, 404 Mich 89; 273 NW2d 3 (1978). Riparian rights also include 1) the right to boat the whole surface of the water, 2) the right to fish on the whole surface of the lake or watercourse, 3) the right to swim or bathe in the waters, 4) the right to wade in, water ski on, ice skate on, sled on and other aquatic sports, and 5) the right to hunt on the surface of the water, etc. so long as the riparian owner does not interfere with the reasonable usage of the water by other riparian owners. Often times, backlot owners are granted the right to access a lake or other watercourse. However, a right to access a lake does not necessarily carry with it the right to construct a dock or other ‘riparian’ rights. See Dyball v. Lennox, 260 Mich App 698; 680 NW2d 522 (2003).
Dedication in Plats and the Seminal Thies Decision
In Michigan, when land is conveyed by referring to an official plat, then the boundary lines shown on the plat control. Sometimes the plat itself will show a meander line of a lake and, thus, the land is to the water’s edge and the land is considered riparian. Another name for the meander line is an ‘intermediate traverse line’ which represents the line formally measured to reflect the border of a lake or other body of water. Interestingly, while the meander line represents the body of water, it does not usually run along the shoreline itself. See Boekeloo v Kuschinski, 117 Mich App 619; 324 NW2d 104 (1982).
In Thies v. Howland, 424 Mich 282; 380 NW2d 463 (1985), the Michigan Supreme Court reviewed a 12-foot section in front of some frontlot owners, which was dedicated as a “walk” that was for the use of all subdivision owners, including backlot owners. In that case, the frontlot owners attempted to block the backlot owners from building a dock. In response, the backlot owners argued that they were riparian owners as co-owners of the walk. The Michigan Supreme Court held:
Persons who own an estate or have a possessory interest in riparian land enjoy certain exclusive rights. Thompson v Enz, 379 Mich 667, 677-679; 154 NW2d 473 (1967) (opinion of KAVANAGH, J.). These include the right to erect and maintain docks along the owner’s shore, Hilt v Weber, 252 Mich 198, 226; 233 NW 159 (1930); Thompson, Real Property (1980 Replacement), §§ 274, 280, pp 453-454, 506-507; 3 American Law of Property, § 15.35, pp 874-875, and the right to anchor boats permanently off the owner’s shore. Hall v Wantz, 336 Mich 112, 117; 57 NW2d 462 (1953). Nonriparian owners and members of the public who gain access to a navigable waterbody have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming. An incident of the public’s right of navigation is the right to anchor boats temporarily. Delaney v Pond, 350 Mich 685, 688; 86 NW2d 816 (1957); Hall, 336 Mich 116-117.
However, the Thies court also stated that frontlot owners could not block backlot owners from erecting a dock or permanently anchoring their boats if these activities were within the scope of the plat’s dedication. Thies, at 249. Thus, the Michigan Supreme Court held that the “intent of the plattors must be determined from the language they used and the surrounding circumstances.” Thies, at 293. In that case, the Court determined that in the plat applicable to that case, the backlot owners only had an easement interest and a dock was not within the scope of the dedication in the plat and therefore the backlot owners could not keep a dock. Thies, at 294-295. This decision is consistent with Thompson v. Enz, 379 Mich 667; 154 NW2d 473 (1967), which held that an easement for owners to a lake or river does not give rise to riparian rights, but only a right of way. Therefore, the actual language in the plat, conveyance or easement must be first considered when determining whether lake access also includes other typical riparian rights, such as the right to construct a dock.
Backlot Riparian Rights
There are circumstances when backlot owners enjoy certain rights traditionally regarded as exclusively riparian rights of the frontlot owners. In Little v. Kin, 249 Mich App 502; 644 NW2d 749 (2003), the Michigan Court of Appeals reviewed a grant of an easement made when the owner of riparian and divided the land into back (nonriparian) and front (riparian) lots “for access to and use of the riparian rights,” which allowed the backlot owners to construct a dock in the easement parcel. In that case, the frontlot owners claimed superior rights to limit the backlot owners’ usage of the easement.
The Michigan Court of Appeals held that “while full riparian rights and ownership may not be severed from riparian land and transferred to nonriparian backlot owners, Michigan law clearly allows the original owner of riparian property to grant an easement to backlot owners to enjoy certain rights that are traditionally regarded as exclusively riparian.” Little, at 505-506. Thus, when determining the rights of backlot owners, the specific language contained in the plat, the conveyance or easement must be closely scrutinized because “where the language of a legal instrument is plain and unambiguous, it is to be enforced as written and no further inquiry is permitted.” Little v. Kin, 468 Mich 699; 664 NW2d 749 (2003). Further, the Michigan Supreme Court stated that, “if the text of the easement is ambiguous, extrinsic evidence may be considered by the trial court in order to determine the scope of the easement.” Little, 468 Mich at 700. Thus, a close review of the actual language in the plat, conveyance or easement for both the frontlot and backlot owners is crucial to determine the scope of the property rights between the frontlot and backlot owners.
In disputes over access to a lake and the scope of the rights to use a lake or the adjacent shoreline, often times these matters require historical research into the actual language of the plat, conveyance or easement and the intent of the plattor/grantor often decades in the past. Unfortunately, many of these issues are either ignored for decades in the interest of being ‘neighborly’ and often percolate into a full blown dispute when a new owner or heir obtains title to a frontlot or backlot property. Sadly, these issues are often messy, complicated and unfortunate. Therefore, knowing your property rights (regardless of whether you are a frontlot or backlot owner) is crucial and even if there is no issue now, that does not mean there will not be an issue in the future.
The team at Hirzel Law, PLC is composed of award-winning real estate attorneys that can offer quality representation for Michigan clients. Regardless of if you are a commercial real estate developer or individual homeowner, our real estate attorneys can help. We fully understand how unique and complex the challenges that our clients may face, and our real estate attorneys are prepared to help in whatever way necessary. Contact Hirzel Law online or call 248-986-2921 (Farmington) or 231-486-5600 (Traverse City) or 616-319-9964 (Grand Rapids) to learn how our Michigan real estate lawyers can help protect your Michigan real estate investment today.