WILLIAM L. CAREY
ATTORNEY AT LAW
- Where are my riparian boundary lines?
This is the question most frequently asked regarding riparian law. A person who owns real property that abuts (i.e., borders) a natural body of water is known as a “riparian” owner. As a general rule, riparian owners on inland lakes and streams in Michigan own the submerged lands or “bottomlands” adjacent to their property. This underwater ownership extends to the middle of the body of water. In other words, the individual who owns the shoreline, owns to the center of the stream or inland lake.
Among other rights, a riparian owner has the exclusive right to install a dock and permanently anchor boats and rafts on his or her riparian bottomlands. Similar to unauthorized entry onto a neighbor’s yard, encroaching onto a neighbor’s bottomlands is also considered a trespass.
These concepts of riparian law are a fairly well known among waterfront property owners. What is less well known, however, is how the boundaries of bottomland ownership are apportioned among riparian owners. How do property lines extend into the lake? Where they start, where do they stop, and what path do they take along the way? These are important questions that often form the center of disputes between lakefront owners.
Though surveys are readily available for property owners to identify their upland property boundaries, very few lakes have been the subject of a submerged land survey. Moreover, there have only been a few cases where a circuit court judge has actually ratified the riparian bottomlands survey, a requirement to officially establish riparian boundaries.
That begs the question: If underwater surveys are not available, how do you locate your underwater property lines? The answer is not the one most people think. Your submerged property line is not merely a direct extension of your upland property line into the water. The shoreline boundary is important, but the angle of your upland property line makes no difference once you get to the water’s edge.
Because your underwater property line is not merely a direct extension of your upland property line, locating your bottomlands boundary is not necessarily an intuitive task. And in some cases, it can be a difficult undertaking. Under Michigan law, there are two primary methods for apportioning bottomland ownership among riparian owners.
Method No. 1: The Pie Approach
The first method is very simple. But unfortunately, it only applies to round lakes. Where a lake is a perfect or near-perfect circle, underwater property lines run from your upland boundary line to the center of the lake, which results in a pie-shaped wedge for each riparian owner. Note, that were a particular lake has one or more islands that have riparian owners, there will be two centers—one on each side of the island (between the island and each shore).
In reality, however, most lakes are not perfectly round. For the vast majority of lakes, a second approach is used to apportion the bottomlands.
Method No. 2: The Thread Line Approach
For noncircular or oblong lakes, submerged property lines are determined using the “thread line” method. With this approach, one or more so-called “thread lines” are drawn through the geographic middle of the lake between two endpoints. The thread line is then used to draw property lines to the shoreline.
In an oblong lake, for example, the first step is to draw a line long ways through the middle of the lake. Each riparian owner’s respective underwater property line is then identified by drawing a line that starts at the shoreline boundary between adjoining riparian owners and meets the thread line at a right angle. A crude illustration is included below.
The red line is the thread line. The blue lines are the individual lines that apportion each riparian owner’s respective bottomland boundary. As you can see from the illustration above, there comes a point at the ends of the lake where lines can no longer be drawn from the shoreline boundary to the thread line at a right angle. At this point, the pie approach described above is utilized to divide the bottomlands, with the end of the thread line serving as the center point. The green line shows how this works.
Unfortunately, there is no clear-cut rule that governs where or how to draw the thread line. The Michigan Supreme Court has explained that no fixed rule has ever been established for division of the bottomlands in inland lakes, but the overriding goal at common law is to secure an equal share of bottomland ownership for each riparian owner, in proportion to his or her percentage share of lake frontage. Each case depends on its own peculiar circumstances and facts in order to equitably apportion riparian rights to riparian landowners. If that goal cannot be accomplished by the thread line method, some other method might be necessary.
Given this loose definition of equitable apportionment, reasonable people can come to different conclusions about where and how the thread line should be drawn to accomplish this goal. When legal disputes arise involving riparian property lines, it is often necessary to engage the services of a surveyor experienced in riparian bottomland surveys.
- Access to water from a public road
Michigan is a water wonderland. Not only is Michigan the Great Lakes State, it also has more than 11,000 inland lakes and countless miles of rivers and streams. It is difficult to identify another state where water-related recreation opportunities are so varied and esteemed by its citizenry. The lake frontage surrounding Michigan’s big inland lakes (Torch, Higgins, Houghton, Burt, Mullet, Crystal, and Walloon among them) began to be developed between 1900 and 1925. The virgin pine forests of northern Michigan had been logged, and developers from Detroit and Chicago, already familiar with Michigan’s spectacular lakes and streams, began to acquire large tracts of land from the logging companies and then subdivided them into smaller parcels. Often, the subdividing was done via the Plat Act.
The typical turn-of-the-century northern Michigan lakefront subdivision was laid out on a plat with a series of blocks. Each block was then divided into rows of lots and bordered by streets. Additionally, many of these plats also were designed with a lakeside boulevard running the length of the plat. The streets separating the blocks almost invariably terminated at the water’s edge. One common topic in riparian law involves the extent to which water access opportunities are provided to the public via platted streets and boulevards.
Public Roads and the Platting Process
The platting process previously referenced was subject to governmental approval, and as part of the process, a developer was required to provide a means of legal access to each lot within the subdivision. Access to subdivision lots was usually created by dedication of streets to the public. A dedication is, in essence, a grant by the developer to a public authority that creates a public way. When a dedication is accepted by the public authority, the street subject to the dedication comes under the jurisdiction of that public authority. In the case of lakefront subdivisions, the dedicated roads not only provide access to the platted lots but also potential public access to the adjoining bodies of water. Since the dedicated roads were usually laid out perpendicular to the shoreline, these roads are often referred to as “down roads.” The terminus point of a down road is usually called a “road end.” The dedicated down roads, after coming under public jurisdiction, are available for all members of the public to use. The public’s use typically includes a right to access the water’s surface from the road end. Beyond accessing the water’s surface, there has been much litigation over what other uses the public may engage in at the road ends.
Public Access via Public Road Ends
Since at least 1882, Michigan courts have determined that a platted public road that ends at a navigable body of water presumptively may be used by the public to gain access to the water’s surface. Once a member of the public lawfully gains access to the water’s surface, he or she is free to navigate the entire water surface under the doctrine of navigational servitude. Members of the public with lawful access to the water’s surface may use the water for boating, fishing, swimming, and temporary anchorage.
In Jacobs v Lyon Twp, the developer of the Lyon Manor subdivision dedicated the roads in the plat to the use of the public. The subdivision, which was dedicated in 1902, fronts on the south side of Higgins Lake. The platted roads in the subdivision have a width of 66 feet. Many of the dedicated streets in the plat ended at the water. In 1987, Lyon Township enacted a zoning ordinance allowing all members of the public to moor boats, maintain docks, picnic, sunbathe, and lounge at the road ends. The ordinance did not regulate the number of users of a road end or the number of boats allowed to be moored there. The Lyon Township zoning ordinance was challenged by owners of lots in Lyon Manor whose cottages or homes were adjacent to the road ends. They argued that the public’s use of the road ends as parks and marinas created a nuisance and devalued their property. More specifically, the plaintiffs argued that the road ends were never intended by the plattor to be used for anything more than road purposes. The Michigan Court of Appeals ultimately determined that the developer of the Lyon Manor subdivision did not intend the roads in the plat to be used for recreational activities beyond simply providing access to the water’s surface; accordingly, the Court ruled that the portions of the township ordinance that authorized picnicking, sunbathing, lounging, and boat mooring were invalid.
Lyon Manor subdivision is one of 13 lakefront subdivisions located on the shore of Higgins Lake. The other subdivisions were also platted between 1900 and 1925 and each had numerous road ends. After Jacobs, a series of 12 lawsuits were filed, each seeking a declaratory ruling that the roads in the subdivision could not be lawfully used as marinas or parks. After trial, the cases were appealed to the Court, which consolidated them into two groups. Two opinions were ultimately rendered, one of which was published: Higgins Lake Prop Owners Ass’n v Gerrish Twp.
In the published decision, the Court undertook an exhaustive analysis of the law related to platted public roads and the allowable uses of the road ends by the public. Following closely the Jacobs analysis, the Court recognized that a common public dock located at a road end was within the allowed uses, reasoning, as other courts have, that a dock is a navigational aid to the water’s surface. The Higgins Lake panel, like the Jacobs panel, ruled that the legal presumption is that a road terminating at the water’s edge provides public access to the water, but the burden rests on the party attempting to show that anything beyond mere access was intended; accordingly, the Court ruled that absent evidence of the dedicator’s intent to the contrary, recreational activities such as sunbathing, picnicking, and lounging are not lawful. The Court also precluded the non-temporary mooring of watercraft as being beyond the dedicator’s intent.
Interestingly, neither Jacobs nor Higgins Lake addressed the issue of who owns the riparian bottom lands as extended from the road terminus. Each court reasoned that a determination of actual ownership of the subaqueous land was unnecessary to reach a resolution of the public’s usage rights. While the Jacobs and Higgins Lake panels dealt with public roads, the analysis used in the decisions is equally applicable to private roads and easements. It is the scope of the dedication, as determined by the dedicator’s intent, which dictates allowable uses. A legal presumption is imposed preventing general recreational uses, unless a contrary intent can be established.
Public Access via Public Lateral Roads
The creation of a wide scenic boulevard running along the lakeshore is a common feature of plats on inland lakes in Michigan. The boulevards, often referred to as “lateral roads” by the courts, have widths as great as 100 feet. When the lateral roads run the entire shoreline of a subdivision, none of the lots in the subdivision actually touch the water’s edge. The lots that are separated from the water by the lateral roads are commonly called “front tier” lots.
With regard to public lateral roads, two important legal issues present themselves. First, what water-related recreational activities can the public engage in based on the existence of the boulevard? Second, who controls the riparian land adjacent to the lateral road? Each issue has now been resolved by the Michigan Supreme Court in the matter of 2000 Baum Family Trust v Babel.
The Baum Trust and other plaintiffs were owners of lots facing Lake Charlevoix, but separated from the water by a road that was dedicated to public use in a subdivision plat that was recorded pursuant to the Plat Act. Plaintiffs brought an action in the Charlevoix Circuit Court against William Babel and other back-lot owners, the Charlevoix County Road Commission, and Charlevoix Township. Plaintiffs moved for partial summary disposition against the road commission only, contending that plaintiffs held riparian rights. The trial court ruled that plaintiffs had no riparian rights, and the Court of Appeals affirmed, holding that the plain and unambiguous language of the Plat Act granted the public fee title to a dedicated roadway and that the road commission was in “no way” limited in the type of use it could make of the road. The Michigan Supreme Court granted plaintiffs’ application for leave to appeal.
Consistent with longstanding rules of property in this state, the Michigan Supreme Court held that the property interest conveyed by a statutory dedication under the Plat Act, in a public road that runs parallel to a body of water or watercourse, did not divest the front-tier property owners of their riparian rights. The Court stated that no Michigan decision has ever held that a dedication of a base fee in a parallel road conveys riparian rights to the receiving government entity, and every Michigan decision that has addressed this issue has concluded that riparian rights rest with the front-lot owners.
Regarding the types of activities that the public could engage in upon the lateral road and adjacent shoreline, the Michigan Supreme Court held that all dedications of land to public use must be considered with reference to the use for which they are intended. In Michigan, riparian rights have never been considered among such rights with respect to the dedication of lateral roads. This is in direct contrast to down roads: public ways that terminate at the edge of navigable waters have been deemed at common law to provide public access to the water. However, no decision in this state has ever held that a dedication of a road that runs parallel to the water conveys riparian rights. Accordingly, the Supreme Court held that the jurisdiction of the road commission did not include riparian rights to the road at issue, precluding the road commission from granting public access to the water, as such uses are incompatible with the underlying dedication. Lateral roads may not, therefore, be used for any recreational purpose and may not be used as water-access points. Further, the owners of land adjacent to and separated from the water by lateral roads hold riparian rights in the adjacent waterfront.
Summary
Hundreds of platted public road ends throughout the state provide the public with legal and meaningful access to navigable inland waters. However, these access points cannot be used as parks or marinas absent a contrary intent expressed in the dedication. Lakeside boulevards and lateral roads provide the public with a scenic view, but general access to the adjacent waters is not allowed.
- Unreasonably Long Docks: How long is too long?
There are always people who push the limits of acceptable practices. Often times, to the detriment—and sometimes danger—of others. The same holds true for Michigan lakes and lakefront owners. Motor around any navigable lake in Michigan and you will undoubtedly see at least one instance of this phenomenon, whether it be an excessively long dock, a large raft anchored essentially in the middle of the lake, or the like. Many riparian owners we talk to wonder, is there a limit on the length of a dock or how far out into the lake a swim raft can be anchored?
The Michigan Natural Resources and Environmental Protection Act provides the following provision that seeks to address this question and gives the Michigan Department of Natural Resources and local law enforcement jurisdiction to enforce the relevant standard:
(1) If an anchored raft or other item or material, whether floating free or attached to the bottomland or a shoreline, presents a hazard to navigation, the department or a peace officer with jurisdiction over the body of water where the anchored raft or other item or material is located may relocate or remove it or may order its relocation or removal.
(2) The person who owns or who caused a navigational hazard that is relocated or removed under subsection (1) is liable to pay the actual and reasonable costs of relocation or removal. The department or the law enforcement agency with jurisdiction over the body of water where the navigational hazard was located may send written notice of the relocation or removal under subsection (1) and the associated costs to the person determined to own or to have caused the navigational hazard. If the owner or person who caused the navigational hazard fails to pay the costs within 30 days of the date the written notice is mailed, the costs may become a lien against the person’s property. [MCL 324.80163.]
In short, if the DNR or local law enforcement deems a water-related structure to be a “hazard to navigation,” then the lakefront owner can be ordered to either relocate or remove it. Alternatively, the enforcement officials can just go ahead and move the dock or raft themselves, and then call on the owner to pay the cost of relocation or removal.
But what does it actually mean to say that a dock, boat hoist, or swim raft cannot present “a hazard to navigation”? This is undoubtedly a subjective evaluation that at the very least requires a case-by-case determination. Are there any definitive standards?
Some local municipalities do have ordinance provisions that expressly regulate docks. These regulations limit the allowable length, width, and height of docks, and sometimes even implement certain “set-back requirements” that preclude installation of docks too close to property lines between neighbors. In a few limited instances, municipalities also have ordinances that regulate swim rafts and boat hoists. Although these municipal regulations are more definitive, they are much more selectively enforced and less reliable.
So, what if your local municipality does not have regulation to address such nuisances and the DNR chooses not to act regarding water structures that present a hazard to navigation? Is a lakefront owner simply free to install a dock as far out into the lake as he or she wishes, so long as it is located entirely on that person’s bottomlands? Assuming no state or local enforcement action occurs, an aggrieved lakefront owner could still combat an unreasonably long dock or dangerous swim raft by taking legal action via a special concept in riparian law (based on common law), called the doctrine of reasonable use.
Pursuant to the doctrine of reasonable use, a fellow riparian owner (typically a lakefront neighbor) can bring a legal action against another lakefront property owner if the offending party exercises his or her riparian rights in a manner that unreasonably interferes with the reasonable lake usage rights of the other riparian owners on the lake. There is no definitive limit to how far a dock can extend or a swim raft can be located from shore, but generally speaking, such items cannot unduly interfere with navigability or the rights of other riparians to reasonably use their respective riparian properties.
