By

E A. Trautz

Land which includes or is bounded by a natural watercourse is defined as riparian. Thies v Howland, 424 Mich pp 287-8 (1985)

The following footnote appears on page 288:

"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 term "riparian" is often used to describe both types of land and will be so used in this opinion.

The owner of land bounded by a natural inland watercourse also owns the bed of the lake or stream to the middle."

Persons who own an estate or have a possessory interest in riparian land enjoy certain exclusive rights. These include the right to erect and maintain docks along the owners shore, and the right to anchor boats permanently off the owner's shore. Thies, p 288

Non riparian owners and members of the public who gain access to a navigable water body 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. Thies, p 288 (*Something that occurs casually in connection with something else such as anchoring while fishing or swimming.)

Unless a contrary intention appears (in the plat dedication) owners of land abutting any right of way which is contiguous to the water are presumed to own the fee in the entire way, subject to the easement. Since the owner's property is deemed to run to the water, it is riparian property. Thies, p 293

Cases involving a way which terminates at the edge of a navigable body of water are treated differently from those involving a way which runs parallel to the shore . . .

Public ways which terminate at the edge of navigable waters are generally deemed to provide public access to the water. A city on behalf of its citizens is entitled to build wharves at the end of such streets to aid the public's access. The right to build a wharf or dock does not depend on whether the public owns the fee in the way. Rather it is based upon the presumption that the plattor intended to give access to the water and permit the building of structures to aid in access. Any dock which is constructed at the end of a common way must be made available for the use of those to whom the way is dedicated. Thies pp 295-296 (emphasis added)

The extent to which the right of public access includes the right to erect a dock or boat hoists or the right to sunbathe and lounge at the road end depends upon the scope of dedication. The intent of the dedicator is to be determined from the language used in the dedication and the surrounding circumstances (conditions existing at the time the land was platted). Jacobs v Lyon Township (After Remand) 199 Mich p 672 (emphasis added)

Note: On page 672 of the Jacobs decision, the appellate court stated, "Understandably, no witness was able to testify regarding the circumstances surrounding the original dedication in 1902." In response to testimony of the use of the lakefront as far back as the early 1920's, the appellate court ruled, "We do not believe that this testimony establishes that the disputed activities (permanent mooring, lounging, picnicking and sunbathing at road ends) are properly within the scope of the plat dedication of the streets for public use." On page 673 of Jacobs, the Court of Appeals ruled, "the scope of dedication of roads in Lyon Manor permitted the installation of one nonexclusive dock at the end of each of the roads leading to the lake, and that the public was entitled to reasonable use of the water for boating, swimming and fishing. However, we reverse the portion of the trial court's order that determined that the erection of boat hoists and the shore activities, such as sunbathing, lounging or picnicking, were with the scope of the plat dedication, because these findings were clearly erroneous."

A dedication of land is an appropriation (setting apart) of land to some public use made by the owner of the fee (the person who owns the land) and accepted for that use by or on behalf of the public. Clark v City of Grand Rapids, 334 Mich 646.

Michigan's Plat Acts since 1839 contain a provision which conveys a fee in land dedicated to public use to the municipality in which the land is situated to be held in trust for the purposes designated. The operative plat act in effect when most subdivisions were platted bordering Michigan Lakes and streams was the Plat Act of 1887, PA 309 which reads:

"The map so made and recorded in compliance with the provisions of this act shall be deemed a sufficient conveyance to vest the fee of such parcels of land as may be therein designated for public uses in the city or village within the corporate limits of which the land platted is included, or if not included within the limits of any incorporated city or village, then in the township within the limits of which it is included in trust to and for the use and purposes therein designated and for no other use or purposes whatever." (1887 PA 309) (emphasis added)

The statutory conveyance referred to is the conveyance of a "base fee." It is a fee subject to qualification or a condition subsequent and is thereupon determinable (capable of being terminated). That condition or qualification is that the street or alley be continued to be used as such, and, if the use be abandoned the fee in the municipality will terminate . . .

The legislature continued further and said that the determinable fee was held in trust to and for the purposes designated. By such language, the Legislature evidenced a further intent to limit the nature and extent of the interest of the trustee municipality to what was reasonably sufficient to exercise its responsibility. . .

Finally, after making the estate defeasible and determinable and held in trust subject to such fiduciary responsibility, the Legislature went on additionally to say that the fee was to be used for no other use or purposes than those designated, whatsoever. This language evidences a legislative intent that the street or alley so designated could not be used for any purpose in addition to the same. The legislature was not satisfied that the use of the property received by the public be used as a public way or that the fee would otherwise terminate in the municipality. The Legislature went further to state with specificity that such use was the exclusive purpose for which such conveyance could be utilized. The addition of this language reflects an intent to preclude the utilization of non interfering uses or purposes in addition to those specifically designated. Kalkaska v Shell Oil Co., 157 Mich App pp. 231-232 (1986) (emphasis added)

The municipality within whose borders the premises are situated takes them as trustee for the public for the special uses designated by the dedicator. And the use to which the land is dedicated must be preserved or the land will revert to the original proprietors."

Baldwin Manor, Inc. v Birmingham, 341 Mich p 430 (1954)

In the case of the abandonment of the use for which property was dedicated, the grantee is entitled to possession unencumbered by the easement in favor of the public. Callaghan's Civic Jurisprudence, Chapter 52, Dedication, Page 546,

When land is dedicated for a particular use and the municipal authorities undertake to appropriate it to a use entirely different, they may be restricted from doing so. A court of equity will interfere at the suit of cestui que trust or cestui que use to prohibit violation of the trust or a destruction of the rights of the user. Ibid

If a city government has failed to perfectly perform the obligation assumed in the acceptance of this gift (dedicated land) a court of equity has the power to compel such performance. Clark v City of Grand Rapids, 384 Mich 646

Except as appears below, if a dedication is made for a specific or defined purpose, neither the legislature, a municipality, or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private and whether the dedication is a common-law or a statutory dedication; and this rule is not affected by the fact that the changed use may be advantageous to the public. This can only be done under the right of eminent domain. Baldwin, pp 430-430.

Municipalities have no proprietary interest in the street as their private property. A municipality acquires no beneficial interest in the land dedicated to the public use as a street. It has, in the public street, no title or interest of which it can divest itself by deed or other conveyance. The use of such land has already been determined by the dedication to public use. By constitution and statute, the supervision and reasonable control of all streets are given to municipalities, but powers extend no further. Kalkaska v Shell Oil Co., 157 Mich App p 233 (1986) (emphasis added)

Lands dedicated to the public as a highway, are by law, subject only to the use of the public as such. The fee remains in the owner of the adjacent property of which it is a part, subject to the public easement. Kalkaska, p 233 (emphasis added)

A HISTORY OF ROAD-END LITIGATION AT HIGGINS LAKE, MICHIGAN

In the late 1800's and early 1900's many subdivisions bordering Higgins Lake were platted; roads delineated in these plats were dedicated "to public use." Eventually lateral roads platted to terminate at the lake were called "road ends." As explained above, a public way that terminates at inland navigable waters is generally deemed to provide public access to the surface of the water body and a nonexclusive dock may be installed to aid in access.

Beginning in the early 1960's nearby Non riparian owners at Higgins Lake, who prefer to be called "backlotters" formed "road end associations." The purpose of a road-end association is to gain control over a nearby road end, erect, maintain and operate a marina for the exclusive use of its members and encourage its members to lounge, picnic and sunbathe on the shore, on the marina dock and on boats docked in the marina. It is estimated that over 800 Non riparian property owners moor their boats permanently at road ends on Higgins Lake. Since the average road terminating at the lake is forty-feet wide (some are as narrow as 20 feet) trespass upon adjacent privately-owned uplands and riparian interests, noise and litter present a serious problem for those whose land and riparian interests abut these marinas.

Townships can regulate riparian rights and control "keyholing".

Officials of Lyon and Gerrish Townships, the two townships bordering Higgins Lake, refuse to govern road ends within their jurisdiction according to Michigan law.* As a result, the Higgins Lake Property Owners Association (HLPOA), which was deemed in 1998 by the Michigan Supreme Court to have standing to sue on behalf of lakefront owners, filed fourteen lawsuits against the townships. The owners of Non riparian properties in the fifteen subdivisions are named as party defendants. (*In a letter dated January 15, 1996, the Lyon Township attorney informed township officials: "The statute giving the township ownership of the streets in subdivisions does not give full ownership but only a limited ownership 'in trust for the public'. The township's ownership is limited to the scope of the language contained in the dedication to the public contained in the plat. The township can permit road end docks to facilitate access but it cannot allow boat hoists.")

All fourteen lawsuits include a count which claims roads terminating at the lake within the named subdivision are dedicated for public access and asks the court to enjoin the township, Non riparian property owners named in the lawsuit and the general public from using road ends in the subdivision for any purpose other than access to the surface water of Higgins Lake.

One of the lawsuits against Lyon Township includes two subdivisions where roads have been adjudicated for public access only: Lyon Manor, the subdivision adjudicated in Jacobs v Lyon Township; and Shoppenagons Lodge, a subdivision where the township entered into a Consent Judgment with lakefront owners in that subdivision to restrict road ends to public access.

This lawsuit alleges Lyon Township is in violation of the terms of the public trust created in 1887 PA 309 which requires a municipality to use the land for the uses and purpose designated and for no other use or purpose whatever. For relief, the plaintiff asks the court to either compel the township to comply with terms of the statutory trust or in the alternative, revert the land to the adjacent property owners. Lyon Township filed a motion to be dismissed from this count claiming the plaintiffs were asking for a mandamus and the court did not have the power to force the township to regulate road ends. The township also argued there is no authority for a court of equity to revert road-end property to adjacent landowners. The circuit court issued an order dismissing the township from the count and ruled it could find no authority to issue a writ of mandamus nor to revert road end property to adjacent landowners. (Until the election of a new circuit court judge to the 34th Circuit Court recently, the two sitting judges believed they could not issue an order for a municipality to comply with Michigan law because to do so would be a violation of the separation of powers!)

Two counts remain to be heard in this lawsuit, one of which the HLPOA believes the circuit court cannot capriciously and arbitrarily dismiss. This count claims Lyon Township and owners of Non riparian property in the subject subdivisions are in violation of Part 301, Inland Lakes and Streams (ILSA) of Michigan's Natural Resources and Environmental Protection Act, Act 451 of 1994. This Act requires a person to obtain a marina operating permit from the Michigan Department of Environmental Quality in order to erect, maintain and operate a marina. The relief requested is "to declare road end marinas as a nuisance per se and enjoin said nuisance permanently or until such time as Defendants comply with the requirements of ILSA."

Definition of a Nuisance Per se

A nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances. Eyde v Roscommon Rd. Comm'rs 161 Mich App (1987) p. 669

The Natural Resources and Environmental Protection Act (Act 451 of 1994) Part 301, Inland Lakes and Streams, Section 30102 reads: "Except as provided in this part a person without a permit from the department shall not do any of the following: (c) Erect, maintain, or operate a marina. (emphasis added)

Section 30101(f) defines a marina as follows: "Marina" means a facility that is owned or operated by a person* extends into or over an inland lake or stream and offers service to the public or members of the marina for docking, loading or other servicing of recreational watercraft." (*Person in this act includes an individual, partnership, corporation, association, governmental entity or any other legal entity.)

Rule 9. In acting upon an application for marina operating permit, the department shall not issue a permit unless the department determines that the facility meets all of the following criteria:

(a) The facility does not unreasonably affect the public trust or riparian interests. (Note: The public trust at road ends provides for public access to the water body and a nonexclusive dock to aid in access. It does not provide for the erection, maintenance and operation of marina by persons who do not own riparian property.)

(b) Ingress and egress are within the riparian owner's interest area or written authorization is secured from the adjacent owner whose riparian property interest is or may be affected. (Note: The ownership of riparian interests at road ends remains in the adjacent landowner subject to the easement of public access which includes a nonexclusive dock to aid in access.)

(c) The recreational watercraft-carrying capacity of the water body upon which the facility is located is not exceeded by the increased use brought about by the marina and the increased use attributable to the marina will not create congestion or safety problems or aggravate existing recognized congestion or safety problems.

(Note: The average road end is 40 feet wide, the average dock is 200 feet long, and the average number of boats docked at the marina is 17. This definitely creates congestion and safety problems especially for adjacent riparian property owners.)

(d) The construction and operation of the facility will not destroy or adversely impair the use of the waters or natural resources of the state.

(e) The facility is not aesthetically displeasing and conforms to similar structures and activities in the area on similar watercourses. (Note: At Higgins Lake, private docks average 60 feet long with two boats. Road-end association marina docks average 200 feet long and contain 17 boats.)

(f) The facility has adequate parking space to accommodate anticipated users. (Note: This rule assumes the facility is on privately owned riparian interests and the upland has sufficient land to provide parking for those using the marina.)

(g) The facility is in compliance with local zoning ordinances. (Note: The use of a road end is not determined by zoning, rather it is determined by the plat dedication.)

(h) The structures do not constitute a safety or navigation hazard and are in good repair. (Note: Adults and children alike use road ends to access the water for wading and swimming. It is not unusual to see children playing around and under boat hoists. Some road-end association docks are over 300 feet long, well beyond the line of navigation.)

(i) The potential adverse environmental effects of operating a marina have been determined pursuant to R 281.814.

Edward A. Trautz, Higgins Lake, Michigan

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