MICHIGAN LAW RELATING TO RIPARIAN RIGHTS
AND PUBLIC ACCESS AT ROAD ENDS
Section 1
This section deals with what constitutes riparian land, the rights of those who own riparian land and the rights of the public in the use of Michigan's lakes and streams.
For a complete analysis of riparian rights, Michigan Case Law Relating to Water, prepared by the Land and Water Management Division of the DEQ in cooperation with the Office of the Attorney General provides a digest of all case law in Michigan relating to water from 1853 to 1989.
Definition of riparian land
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 footnotes appear on page 288 of Thies:
"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."
Definition of riparian rights
Persons who own an estate or have a possessor 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
Public rights on inland navigable waterbodies
non-riparian 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. Thies, p 288 (*Something that occurs casually in connection with something else such as anchoring while fishing or swimming.)
Land abutting a public right-of-way contiguous to a lake or stream is riparian property
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
Those who do not own riparian land do not have riparian rights
It is settled law in this state [Michigan] and elsewhere, so settled that no contrary authority has been cited, that the interposition of a fee titled between upland and water destroys riparian rights, or rather transfer them to the interposing owner. Hilt v Weber. 252 Mich 218 (1930).
Riparian Rights are not severable
Riparian rights are not severable nor assignable apart from the land bordered by the land bordered by a natural waterway, but easements and licenses do exist and are often granted to riparian owners. Thompson v Enz, 379 Mich 667 (1967)
Easements to a natural waterway
The use of an easement is defined by the terms of the easement agreement and must be confined to the purposes for which the easement was created. A person entitled to the use of an easement cannot materially increase the burden upon the servient estate (the owner of the land over which the easement runs) beyond what was contemplated. Thies v Howland, 424 Mich 297 (1985)
(There have been several appellate cases recently that have held that a easement to the lake, unless it specifically states the easement includes riparian rights, provides only access to the waterbody.)
Ways terminating at inland navigable waterbodies are generally deemed to provide public access
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)
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Section 2
As explained in Section 1, the public's right of access to a navigable inland lake or stream where a road terminates at the edge of the water is determined by the scope of dedication of the land. This section provides a detailed explanation of the elements of "dedication" and why once land dedicated for a specific purpose, no one can use it for any other purpose.
Definition of dedicated land
A dedication of land is an appropriation (setting apart) of land to some public use by or on behalf of the public. Clark v City of Grand Rapids, w34 Mich 646.
Land dedicated to public use is held in trust by the municipality
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)
Case law interpreting the statutory conveyance contained in 1887 PA 309
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 noninterfering 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
Once land is dedicated for a specific purpose it cannot be used for any other purpose
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.
A municipality does not own the land over which a public easement runs
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 as streets must be used as such
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)
The scope of dedication determines the use land dedicated as public roads that terminate at inland navigable waters
In 1993 the Michigan Court of Appeals in the case of Jacobs v Lyon Township (After Remand), 199 Mich 667, established the criteria for determining what constitutes public access when a road terminates at inland waters.
Publicly dedicated streets that terminate at the edge of navigable waters are generally deemed* to provide public access to the water Thies v Howland, 424 Mich 282 (1985); McCardel v Smolen, 404 Mich 89 (1978); Backus v Detroit, 49 Mich 110 (1882).
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.* Jacobs at page 672 (emphasis added) (*Surrounding circumstances means: The conditions that existed at or near the time of the dedication of the land.)
On page 672 the Jacobs court said, "Understandably, no witness was able to testify regarding the circumstances surrounding the original dedication in 1902." And, in response to testimony regarding the use of the lakefront as far back as the early 1920's the appellate court said, "We do not believe this testimony establishes that the disputed activities (permanent mooring, lounging, picnicking and sunbathing) are properly within the scope of the plat dedication of streets for public use."
The court concluded on page 673: "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 the erection of boat hoists, and the shore activities, such as sunbathing, lounging or picnicking, were within the scope of the plat dedication, because these findings were clearly erroneous."
Comments by Clifford H. Bloom, attorney for the Michigan Lake and Stream Association.:
"The Michigan appellate courts have consistently held that such road ends [public roads that terminate at the edge of the water] are to be used for access purposes only (i.e. travel) since they are roads. Accordingly, absent highly unusual language in the plat dedication which created the road, the scope of usage rights for the public normally precludes sunbathing, picnicking, lounging, overnight boat mooring, shore-stations, storing of personal items. In some cases, the courts have permitted one dock to be utilized but once installed, the dock becomes public property and boats cannot be stored or moored overnight."
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A HISTORY OF ROAD-END LITIGATION AT HIGGINS LAKE, MICHIGAN
In the late 1800's and early 1900's many subdivisions were platted that border Higgins Lake. Land dedicated as roads in these plats were dedicated "to public use." Eventually public roads platted to terminate at the lake were called "road ends." As explained by attorney Bloom above, Michigan appellate courts have consistently held road ends are to be used for lake access and not for lounging, picnicking, sunbathing or permanent mooring.
Beginning in the early 1960's nearby non-riparian owners at Higgins Lake, who prefer to be called "backlotters" began forming "road end dock associations," some of which are registered with the state as nonprofit corporations in order to limit liability. The purpose of a road-end dock 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. Today, approximately 800 non-riparian property owners permanently moor their recreational watercraft at road ends around Higgins Lake. Since the average road terminating at the lake is forty-feet wide (some are as narrow as 20 feet) the activities engaged in at road ends by members of road-end dock associations not only make it impossible for the public to access the lake, but also result in trespass upon adjacent privately-owned uplands and riparian interests. Noise and litter also present a serious problem for those whose land and riparian interests abut these marinas.
All road end dock associations belong to a master association called the Higgins Lake Civic Association. The HLCA has so much political power its members can recall township officials if they pass ordinances restricting road ends to public access. In fact, in 1993 two officials of Lyon Township were recalled because they had the temerity to vote for an ordinance prohibiting boat hoists at road ends
Two townships, Gerrish and Lyon, include most of the shoreline of Higgins Lake within their borders. In 1985 both townships passed ordinances permitting road ends within their jurisdiction to be used as private marinas and for lounging, picnicking and sunbathing. In 1987 four owners of property adjacent to road ends in Lyon Manor subdivision sued Lyon Township (Jacobs v Lyon Township) for permitting activities exceeding the scope of dedication of roads within their subdivision.
Even though Lyon Township lost the case, fearful of recall, officials in that township refuse to accept the decision of the Jacobs court as the rule of law governing public roads terminating at inland navigable waters. They even rejected their attorneys advice, who in a letter dated January 15, 1995 said, "The statute [referring to 1887 PA 309] 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."
Today Gerrish and Lyon townships have forfeited control over road ends under their jurisdiction to members of the Civic Association. Today road ends at Higgins Lake are under the absolute control of road-end dock associations for use as their private marinas, beaches and parks.
To correct this situation, the Higgins Lake Property Owners Association (HLPOA), which in 1998 was deemed by the Michigan Supreme Court to have "standing" to sue on behalf of lakefront owners, initiated fourteen lawsuits which include 15 lakeside subdivisions.* Parties defendant in these lawsuits include the appropriate township, the Roscommon County Road Commission, the DEQ and all non-riparian property owners in the subdivision at issue. (*One of the lawsuits against Lyon Township includes 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; the township subsequently reneged on the consent judgment.)
All fourteen lawsuits rely upon the criteria established in Jacobs v Lyon Township and claim that roads terminating at the lake within the subject subdivision are dedicated for public access only. As relief, the plaintiff asks the court to enjoin the defendants from using road ends in the subdivision for any purpose other than access to the surface water of Higgins Lake.
Lawsuits against Lyon Township contain two more counts:
1) A claim that 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.
2) A claim that Lyon Township, the Road Commission, the DEQ 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 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 Inland Lakes and Streams Act
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.)
The DEQ, though the office of the Attorney General, admits in briefs responding to road-end lawsuits at Higgins Lake, that 1) Jacobs v Lyon Township governs road end usage and, 2) Road end marinas violate Section 301, Inland Lakes and Streams
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Recent decisions of the 34th Circuit Court relating to road ends
The 34th Circuit Court serves the counties of Algonac, Iosco and Roscommon. Higgins Lake is in Roscommon County. The 34th Circuit Court has two judges; Judge Bergeron, a former probate court judge in Iosco County, and Judge Baumgartner, who was not only a former prosecuting attorney for Roscommon County but also a former probate court judge in that county.
Recent decisions of Judge Bergeron:
1) In response to the count that Lyon Township is in violation of 1887 PA 309 which states the township holds roads dedicated to the public in trust for the uses and purposes designated and for no other use or purpose whatever; Judge Bergeron ruled the court does not have the power to require the township to comply with the terms of the public trust nor does the court have the power to revert the land at road ends to the adjacent property owners.
2) In a case involving road ends in the lakeside subdivision of Evergreen Park which was platted in 1902, Judge Bergeron ignored the criteria established in Jacobs v Lyon Township and ruled that lot owners in the subdivision could lounge, picnic and sunbathe at road ends. (Contrarily, he included in his opinion a statement that road ends are not public beaches or parks.) In response to the request that the court declare road end marinas a nuisance per se and enjoin backlotters from erecting marinas without a permit, Judge Bergeron ruled the DEQ, not the court, has jurisdiction over marinas.
These decisions have been appealed.
Recent decisions by Judge Baumgartner:
In two separate cases involving lakeside subdivisions, Judge Baumgartner on a motion for summary judgment applied Jacobs v Lyon Township. He enjoined backlotters from using road ends in the subdivisions for the permanent mooring of recreational watercraft.
How can two judges sitting in the same circuit court come to opposite conclusions?
It is important to understand that circuit court judges, unlike appellate court judges, are not bound by the legal doctrine of stare decisis, "let the previous decision stand;" or, put in layman's language, "don't deviate from previous decisions." For example, Jacobs v Lyon Township established the criteria for determining what constitutes the public's right of access at a road end: "The intent of the dedicator is to be determined from the language used in the dedication and the surrounding circumstances. In the Evergreen Park case, the roads in the subdivision were dedicated "to public use" and, at trial no one could testify to the circumstances surrounding the dedication in 1902. Clearly Judge Bergeron failed to observe stare decisis.
Some circuit court judges tend to make political decisions; that is, a decision that is clearly erroneous but favors the majority of the judge's constituents. Such decisions are often made with the knowledge the decision will be appealed which makes the appellate judges the "bad guys" rather than local circuit court judge.
The saying "justice delayed is justice denied" becomes a very real factor when judges do not observe stare decisis. For example, the case of Jacobs v Lyon Township was filed in 1987 and it was not until late 1993 that the Supreme Court denied Lyon Township's motion for reconsideration. In fact, twelve years have elapsed and the vast majority of road ends at Higgins Lake are still controlled by members of the Higgins Lake Civic Association! Judge Bergeron's decisions are under appeal which may or may not delay subsequent road end cases around the lake several more years.
On the other hand, there are conscientious judges. When Judge Baumgartner campaigned for election to the 34th Circuit Court his motto was, "I believe in doing the right thing the first time." In other words, "I will faithfully observe the doctrine of stare decisis in order to avoid reversal upon appeal." As proof, over the many years when Baumgartner was a probate court judge and substituted as a circuit court judge, he never had a case reversed on appeal.
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