Many people dream of owning property on a lake, river, or other body of water. Such property comes with certain rights, including the right to access the water, erect a dock, moor boats, or otherwise use the property and water. These rights are typically exclusive to the property owner except in limited circumstances. However, these circumstances are important to be aware of so that you can protect your property and riparian interests.
Before outlining such circumstances, it is important to have a basic understanding of the terminology. “Littoral” refers to property that abuts a lake or ocean, while “riparian” actually refers to property that abuts a river or stream. Regardless, the term “riparian rights” is commonly used to refer to a property that abuts a body of water or watercourse. Moreover, “riparian rights” are “special rights to make use of water in a waterway adjoining the owner’s property.’ ” Little v. Kin, 249 Mich. App. 502, 504 n 2, 644 N.W.2d 375 (2002) (quoting 78 Am. Jur. 2d, Waters, § 30)(Little I).
It is well established that a riparian owner enjoys “certain exclusive rights,” which include “the right to erect and maintain docks along the owner’s shore, and the right to anchor boats permanently off the owner’s shore.” Thies v. Howland, 424 Mich. 282, 288, 380 N.W.2d 463 (1986) (citations and footnote omitted). Conversely, a non-riparian owner has “a right to use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming,” as well as “the right to anchor boats temporarily.” Id.
However, a non-riparian owner might gain the right to access and enjoy a lake by easement or license. Little v. Kin, 249 Mich. App. 502, 510, 644 N.W.2d 375 (2002). In some instances, the riparian owner might not recognize that he has given up riparian rights – this article discusses a few of such instances.
Express Easement’s Effects on Riparian Rights
An easement (sometimes referred to as a right of way for access) can be created through an express agreement or by a failure to preserve one’s property rights. “An easement is a limited property interest; it is the right to use the land burdened by the easement for a specific purpose.” Astemborski v. Manetta, — Mich. App. –, –N.W.2d –, No. 352066, 2022 WL 301296, at 2 (Mich. Ct. App. Feb. 1, 2022), appeal denied, 979 N.W.2d 662 (Mich. 2022)(Approved for Publication March 17, 2022). “[A]n easement may be created by express grant, by reservation or exception, or by covenant or agreement[.]” Bayberry Group, Inc. v. Crystal Beach Condo. Ass’n, 334 Mich. App. 385, 399, 964 N.W.2d 846 (2020) (quotation marks and citation omitted). Easements may also be acquired by prescription. Marlette Auto Wash, LLC v. Van Dyke SC Props., LLC, 501 Mich. 192, 202, 912 N.W.2d 161 (2018).
In most instances involving riparian rights, the riparian owner grants an easement for access to the water. Generally in those instances, the easement “does not give rise to riparian rights, but only a right of way.” Thompson v. Enz, 379 Mich. 667, 685, 154 N.W.2d 473 (1967); See also Dyball v. Lennox, 260 Mich. App. 698, 705–06, 680 N.W.2d 522, 526–27 (2004). The non-riparian owner’s rights in an easement generally hinge on the language in the easement; if they easement is unambiguous, it is enforced as written. See, Little v. Kin, 468 Mich. 699, 700–01, 664 N.W.2d 749, 750 (2003)(Little II); Gawrylak v. Cowie, 350 Mich. 679, 683, 86 N.W.2d 809 (1957).
For example, Maniaci v. Diroff, 505 Mich. 1, 3, 940 N.W.2d 55, 56 (2019), the Michigan Supreme Court considered whether an easement that contemplated a non-riparian owner’s backing a boat trailer into the water also permitted the non-riparian owner to regrade the shoreline to allow such permitted access. Id. In that case, the Court first examined the text of the easement and found that the language specifically permitted such use. Id. at 4. Therefore, the non-riparian owner was permitted to regrade the shoreline. Id. at 5-6. The unambiguous language of the easement itself was the extent of the Court’s investigation into the meaning and extent of the easement.
On the other hand, if the text of the easement is ambiguous, the court may rely upon extrinsic evidence to determine the scope of the easement. Little, at 700, 664 N.W.2d at 750 (2003)(Little II). Accordingly, if the language in the easement is ambiguous, the riparian owner might have transferred more interest or rights than he intended.
As an example, Kraus v. Link, No. 356760, 2022 WL 1511661, at 1 (Mich. Ct. App. May 12, 2022), the non-riparian owners used the easement for sunbathing, picnicking, and bonfires. The riparian owners brought a lawsuit, claiming the easement only permitted access to the water for water-related activities and to install a dock for daily use. Id.
In that case, the Court found that the easement was ambiguous because it did not specify or limit the use of the easement. As such, the Court looked to extrinsic evidence, including historical use evidence, to assist in the interpretation of the easement. Id. at 3. The historical evidence showed that the easement had been used in a like manner for over fifty years. Id. Accordingly, the Court found that the easement was intended to include activities such as sunbathing, bonfires, and overnight mooring. Id. at 7.
Accordingly, it is imperative that those drafting easements be specific as to the permitted uses, and it is imperative that purchasers whose properties will be burdened by an easement have a full understanding of the terms of the easement. Otherwise, riparian property owners might unintentionally relinquish some of their riparian rights.
Prescriptive Easement’s Effects on Riparian Rights
Whether an easement existed in the chain of title or whether a non-riparian owner used an existing easement in a method not permitted by the existing record, a non-riparian owner might acquire an easement for such use and/or access due to a riparian owner’s failure to preserve or protect his riparian rights. See Astemborski v. Manetta, — Mich. App. –, –N.W.2d –, No. 352066, 2022 WL 301296, at 2 (Mich. Ct. App. Feb. 1, 2022), appeal denied, 979 N.W.2d 662 (Mich. 2022)(Approved for Publication March 17, 2022); Slatterly v. Madiol, 257 Mich. App. 242, 260, 668 N.W.2d 154 (2003) (quotation marks and citations omitted). To prove a prescriptive easement, the non-riparian owner must prove, by clear and cogent evidence, that he or his predecessors had continuously used the easement for purposes outside of the scope of the express easement for longer than the statutory period in a manner that was hostile and adverse to the rights of the riparian owners. Id. Put another way, “[a]n easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years.” Plymouth Canton Community Crier, Inc v Prose, 242 Mich. App. 676, 679, 619 N.W.2d 725 (2000) (citations omitted); see also McDonald v Sargent, 308 Mich. 341, 344-345, 13 N.W.2d 843 (1944); Mulcahy v. Verhines, 276 Mich. App. 693, 699, 742 N.W.2d 393 (2007); Astemborski v. Manetta, — Mich. App. –, –N.W.2d –, No. 352066, 2022 WL 301296, at 2 (Mich. Ct. App. Feb. 1, 2022), appeal denied, 979 N.W.2d 662 (Mich. 2022)(Approved for Publication March 17, 2022).
For example, in Astemborski v. Manetta, — Mich. App. –, –N.W.2d –, No. 352066, 2022 WL 301296, at 1 (Mich. Ct. App. Feb. 1, 2022), appeal denied, 979 N.W.2d 662 (Mich. 2022)(Approved for Publication March 17, 2022), the plaintiffs owned a riparian property with an easement running through it for lake access. a dock was installed, extending from the easement, and was used by the neighbors with access to the easement and their guests. Id. The neighbors also used the dock for mooring their boats, sunbathing, picnicking, and other recreational activities without permission to do so. Id. the riparian property owner sued to terminate any use of the easement outside of access to the lake. Id. at 2.
In that case, the Court found that the use of an easement, outside the specified terms of the easement, could be extended through the theory of prescriptive easement. Id. at 4. The Court reasoned that the neighbors had clearly used the easement outside the terms therein, without permission, and for the statutory period of time as they had installed a dock, moored their boats, stored the dock on the easement, sunbathed, picnicked, and otherwise used the easement for over 15 years. Id. at 4-5. Therefore, the neighbors were granted quiet title, permitting the neighbors’ continued use of the easement in such ways. Id. at 6.
License’s Effects on Riparian Rights
“[A] license is permission to do some act or series of acts on the land of the licensor without having any permanent interest in it[.]” Kitchen v. Kitchen, 465 Mich. 654, 658, 641 N.W.2d 245 (2002) (quotation marks and citation omitted). While “a license may be granted orally,” an “oral license is necessarily revocable at the will of the licensor without regard for any promised duration.” Id. at 661, 641 N.W.2d 245. Furthermore, “a license is [generally] revocable at will and is automatically revoked upon transfer of title by either the licensor or licensee.” Id. at 658-659, 641 N.W.2d 245.
Thus, it is important for a riparian owner to remain aware of any transfers of interest in properties that have a license to use or access the riparian owner’s property. If the license is revoked by transfer of the non-riparian owner’s property, the successor owner of the non-riparian property might continue to use the riparian owner’s property, which would start the clock for a prescriptive easement or other methods for the non-riparian owner to obtain interest or use of the riparian property.
Conclusion
If you are a riparian owner and people are using your riparian property without legal authority, it is imperative that you take immediate action to preserve your rights and interest in the riparian property. Alternatively, if you are a non-riparian owner using a riparian property and the riparian owner is attempting to prevent you from such use, it is imperative that you speak to an attorney to discuss your potential legal claims or defenses. If you delay in acting, you could be barred from litigating the matter and lose out on claims, defenses, or potential remedies. Understanding the laws and circumstances surrounding these claims can be difficult without the help of an experienced real estate attorney. A real estate attorney will be able to help navigate through the applicable laws and protect your property rights.
Kara Moore is an attorney at Hirzel Law, PLC and focuses her practice on general real estate litigation. Ms. Moore received her Bachelor of Arts degree in Communication from Bob Jones University in South Carolina. Ms. Moore earned her Juris Doctor degree from Western Michigan University Cooley Law School. While in school, Ms. Moore made the Honor Roll for six terms and the Dean’s List for seven terms. Ms. Moore is a member of the Macomb County Bar Association and the Genesee County Bar Association. Ms. Moore is experienced in performing legal research, arguing motions, conducting depositions, and drafting pleadings and discovery in real estate litigation, probate litigation, landlord/tenant litigation, and civil litigation, and drafting estate planning documents. She can be reached at (248) 986-2290 or at kmoore@hirzellaw.com.
