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July 13 2012

Riparian Property Rights: What Are They and How Can We Help You Protect Them?

By: Ronald M. Redick

What is Riparian Land?: The body of Michigan law governing riparian property rights applies, self-evidently, only to riparian land. Therefore, the threshold question is, what constitutes riparian land? Under Michigan law, “riparian land” is defined as a parcel of land which is bounded by, or includes therein, a natural watercourse. Putting a fine point on the matter, the Michigan courts have held that an “indispensable requisite” to riparian land is actual contact of the land with a natural water course.

Notice that the above definition of riparian land refers only to lands abutting a natural water course. This is another indispensible requisite of the riparian doctrine, because land abutting an artificial watercourse has no inherent riparian rights. In that regard, artificial watercourses are waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes, and the like. The only way that the owners of lands abutting an artificial watercourse may obtain the ability to exercise rights that are similar to those held by owners of true riparian lands are by prescription (i.e., adverse possession) or by grant (i.e., an express or implied easement).

A point of clarification here: 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.” However, the common practice in Michigan is to refer to both types of property as riparian, and so only that term will be used in this article.

Riparian Property Rights: A riparian proprietor is a person who is in possession of riparian lands or who owns an interest therein, and the proprietor is the only person that holds the riparian rights in riparian property. So, what are those rights?

When considering inland lakes and streams, Michigan law recognizes that the “bundle” of riparian property rights includes the following principal rights:

  • The right to exclusive possession and use of the bank and shore, to the water’s edge.
  • Ownership of the bottomlands of the adjacent water body to the middle of the lake or to the thread of a watercourse. The common law rules for extending on-shore boundary lines to the middle of a lake vary, depending on the shape of the lake (i.e., circular, oblong or irregular). The common law rules can be modified, however, if the owners of all lands abutting an inland lake mutually agree and settle upon a different division of the bottomlands.
  • Access to navigable waters for navigation, recreation, fishing and other purposes for which the surface waters may be used.
  • The right to install a dock on the bottomlands out to navigable waters. This is sometimes referred to as a right of “dockage” or “wharfage.”
  • The right to permanently anchor a boat on the owner’s bottomland or secure it to the owner’s dock.
  • Use of the water for general purposes, such as bathing and domestic use.
  • Title to natural accretions.

Not all of these rights stand on equal footing. Riparian rights are divided into two classes. The first of these is for natural purposes. These uses encompass all those absolutely necessary for the existence of the riparian proprietor and his/her family, such as to provide drinking water for household purposes. Users for natural purposes enjoy a preferred, non-proratable position with respect to all other uses, rather than a correlative one. Stated another way, the exercise of these rights is not to be balanced against the rights of others in the same body of water.

The second class is for artificial purposes. Artificial uses are those which increase comfort and prosperity and which are not essential to existence, such as commercial profit and recreation. Users for artificial purposes occupy a correlative status with the other riparians in the exercise of their riparian rights for artificial purposes. Use for an artificial purpose must be (a) only for the benefit of the riparian land and (b) reasonable in light of the correlative rights of all other proprietors. This is sometimes referred to as the “reasonable use doctrine.”

All of the above-listed riparian rights do not apply, however, to riparian lands abutting the Great Lakes. Title to the bottomlands of the Great Lakes are held by the State, and are held in trust for the public, thus limiting the rights that can be exercised on the bottomlands. In addition, Great Lakes riparians do not – at least under the current state of the law – have exclusive use of the entire bank and shore. Historically, this had been a contentious and hotly debated issue, but the Michigan Supreme Court held, in Glass v Goeckel, 473 Mich 667 (2005), that there is a servitude, for the benefit of the public, extending from the water’s edge of the Great Lakes to the ordinary high water mark (“OHWM”), wherein the public may walk, without the permission of the abutting riparian landowner. Where the OHWM lies on any particular property is difficult to ascertain, given the vague definition the Supreme Court supplied for this term:

[T]he point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark. Glass v Goeckel, supra at 691.

It is possible that further litigation will develop involving Great Lakes riparian properties, that will help to better clarify the concept of the OHWM, as that term was defined in Glass v Goeckel.

As a final point, in order to fully understand the outer limits of riparian rights, it is necessary to also consider the competing rights of the general public (i.e., non-riparians) in surface waters that have public access. Members of the public can boat, fish, swim and engage in similar uses on an inland lake having public access, and may also temporarily moor watercraft on the bottomlands, as an incident to navigation, recreation or fishing. Non-riparians cannot, however, permanently moor, wade or otherwise trespass on the bottomlands of a riparian owner, without the owner’s permission.

Riparian rights are also subject to reasonable governmental regulations, and the courts have upheld such regulations where they have (a) restricted the types of boats that may be used on a lake, (b) limited the hours when motors may be used on a lake, (c) limited the number of properties that may gain access to a lake from a given access point, (d) required minimum frontage for lake-access properties, and (e) limited the number of docks or watercraft that may be installed or launched from a single access property.

Common Disputes Involving Riparian Property Rights: Given the high number of inland lakes and streams in Michigan, the Michigan courts have been fertile ground for lawsuits concerning riparian property rights. A large number of these lawsuits involve disputes between riparian and non-riparian owners. Some of the more common types of disputes include the following:

  • Access Easements. Some riparian properties are burdened by an easement that provides access to the abutting lake by the owners of non-riparian properties – sometimes referred to as “back lot owners.” The typical scenario is the back lot owners have started to use the easement for the installation of a dock and the mooring of boats, when the easement provides only for “access” to the water – a term that the Michigan courts have interpreted as not allowing the installation of docks or the mooring of boats. Riparian owners are sometimes forced to file a lawsuit against the offending back lot owners, for the purpose of forcing the removal of the docks and boats.
  • Outlots; Public Parks. Platted subdivisions sometimes include public parks or outlots that abut a body of water. These parks and outlots tend to create the same types of problems as access easements – over time, the use by back lot owners expands to include activities not permitted by the plat’s dedication, such as dockage, permanent mooring of boats, etc. Legal action is sometimes necessary to force compliance with the plat’s restrictions for the park or outlot.
  • Road Ends. Road ends (i.e., roads that terminate at an inland lake) have provided a near endless supply of lawsuits in Michigan. There are a number of Michigan cases holding that private road ends generally cannot be used for dockage, the mooring of boats, or for sunbathing, picnicking or similar uses; gaining access to the water is generally the only permissible purpose. Court holdings regarding the permissible use of public road ends have been similar. (New legislation, Public Act 56 of 2012, supplements the court rulings regarding public road ends – prohibiting the use of public road ends for boat hoists or boat anchorage devises, and prohibiting the overnight mooring of watercraft, unless these uses are allowed by recorded deed, easement or dedication. The Act also prohibits docks on public road ends, except that a single seasonal dock may be permitted by the local governmental having jurisdiction, provided that such use must be allowed by recorded deed, easement or dedication, or by court order.) Despite this, non-riparians oftentimes argue that they have a right to install docks, moor boats, sunbathe and engage in similar uses on road ends. This can be especially disruptive to riparian properties that are adjacent to the road end, but can also result in the overburdening of the entire lake. To deal with this type of situation, the members of a lake association sometimes join together in a lawsuit to enjoin the improper use of a road end.
  • Prescriptive Easements. Even where an access easement does not exist, or where an access easement prohibits dockage or the mooring of boats, back lot owners sometimes trespass over riparian property to obtain access to the waters, or to wrongfully install docks and moor boats. If this wrongful activity is left unchecked for a long period of time (i.e., fifteen years or more), the back lot owners might argue that they have obtained a “prescriptive easement,” allowing them to continue the wrongful use. Lawsuits over alleged prescriptive rights can be drawn-out and expensive, and so diligence is required by riparian owners to ensure that these types of situations do not develop. Water access by non-riparians should not be allowed, or if it is allowed, it should be done only pursuant to a written easement or written grant of permission.

In addition to the disputes that can arise between riparians and non-riparians, disputes can also arise between adjacent riparians on the same lake. One of the more common types of disputes involves ownership of bottomlands and how the on-shore property lines should be extended into the lake. This type of dispute usually finds its origins in a disagreement about where a neighboring property owner may install his or her dock.

As discussed above, on-shore riparian property lines do not necessarily extend directly into the lake, without change in course. Instead, the property lines usually alter course at the shoreline, so as to extend toward the middle of the lake, at a different angle than on-shore. A riparian owner who does not understand this system for the division of bottom land may wrongly install his or her dock onto bottomlands that are actually owned by the neighbor. This is a trespass. Resolving this type of dispute can be expensive, because it can require the services of an experienced surveyor, well-versed in the proper methods for the division of bottomlands. Further, where an irregularly-shaped lake is concerned, different surveyors can often come to different conclusions. When that occurs, only a court can definitively resolve the issue of how the bottomland should be divided.

How Can Mika Meyers Assist You With Riparian Rights Law?: Mika Meyers is a multi-service law firm that can assist you with your riparian rights issues in a variety of ways:

  1. We Are Riparian Litigators. We have extensive and broad-based experience protecting and defending the rights of riparians in the Michigan courts, especially with regard to water access issues. If you are a riparian owner that has a dispute with non-riparians over water access – whether the dispute involves an easement, an outlot or park, a road end, or a claim of prescriptive easement – we have the tools to vigorously and successfully enforce your riparian interests in legal proceedings.
  2. We Are Real Estate Transaction Attorneys. We have an experienced team of real estate attorneys who are well-versed in the special issues to be considered when buying or selling riparian property. Whether you are buying or selling, we can ensure that the transaction is completed in manner that meets your objectives. And if you are contemplating the creation of a water access agreement, we can assist you in ensuring that the easement grants only those rights that are intended by the parties.
  3. We Are Estate Planning Attorneys. Riparian property owners have special issues to consider in generational planning: how to minimize taxes when the family cottage is passed to subsequent generations; how to ensure cooperative use by subsequent generations; and related issues. We have a successful team of estate planning attorneys who can assist you with these issues and other issues that might arise when dealing with riparian property.
  4. We Are Municipal Attorneys. The lawyers in our municipal law practice group have extensive experience dealing with ordinances that regulate lake access and riparian rights. Whether you are seeking to have your municipality adopt an ordinance that appropriately protects the integrity of the water body on which you live, or conversely, if you are objecting to a municipal ordinance that unreasonably restricts the exercise of riparian rights, we have the tools and experience to help you.

Disclaimer. The above information is provided as a general guidance for understanding riparian property law in Michigan. It does not constitute the giving or offering of legal, technical or other professional advice, and does not create an attorney-client relationship or other professional-client relationship. If you have specific questions regarding riparian property law in Michigan, or have questions about your specific situation, please contact Ron Redick.

Related Newsletters
"Riparian Property Rights: What Are They and How Can We Help You Protect Them?," 7/18/2012

"Riparian Property Rights: What Are They and How Can We Help You Protect Them?," 7/18/2012