So an acquaintance came to me with an issue, that I am mostly not getting involved in, aside from help point him in the correct direction.
History, Bought a cabin some 20 years ago, 500 feet from a small inland lake, just outside of what many people would call a resort plat, lots of 50' cabin lots. Cabin owner always had a dock, and the removable dock came with the cabin purchase. This dock was placed on an extension of a county road, and his is not the only 'off water' lot do do this as it is fairly common in this are of the lake, and there was one other 'historical' dock installed there along with his.
I don't have a copy of the plat on the computer to attach, but will describe: The road goes to the water, and forms a T, and also runs along the shoreline. The plat shows the lots ending at the lake-road, with its ROW appearing to extend to the water. No-where in the plat is there a statement that says: "lots extend to the waters edge" pretty much required in Michigan for Riparian rights.
2013, the owner adjacent to the road has rallied other owners, and filed suit to get rid of the back-lot docks. The plaintiff has an 'improvement map' from a local surveyor showing the docks and lots as if they were extended out into the lake, neglecting the fact that the platted lots clearly stop at the road (which is in use and not abandoned), and any issues of bending the lines at a meander, or high water line for equitable ownership.
In my opinion this is really not a surveying problem, it is a legal one, and I have already told him to retain a good fairly local riparian lawyer (as this is a growing issue in Michigan). Still he asked me to look at his maps and such, and since this is an interesting case, I agreed. That and the fact that the plaintiff just seems like a bully with money and he plans on buying his way right or wrong.
Some more interesting items: Looking at the plat, there are no notes which would change my opinion that the road is the only thing with true riparian rights, anywhere along this stretch. Yet most of the 'lakefront lots' have docks in front of them, mostly on an extension of where their lot would have access. Interesting to know that NONE of them have a permit to install a dock on ROW. While the back-lot docks seem to be installed in virtually the exact same place year after year, the plaintiff over the last few years installs is dock closer and closer to the extension of the access road. This last season the main deck crossed the extension of his lot line (road ROW line) AND then he docks his boat on the roadside, further hindering access at the road extension area. (Hence my view of his bullying)
There are 2 main defendants on this, my acquaintance, and another. The other defendant in my view would have more of a correct claim, as they would be considered a true 'back lot' or an off-lake lot in the same plat as the lake-view lots. My acquaintance has a M&B parcel just outside of this plat. But again, since the plat is mute on the lake access issue, does ANYONE really have a right to be there? The plaintiff may be shooting himself in the foot and killing EVERYONES access!
I'm meeting with them on Monday night, and would appreciate any comments that I could pass along, or case-law in Michigan or great lakes states. Has anyone else worked on a similar case they could share?
My initial thoughts would be that riparian rights do not apply since his land does not front the body of water. It is my understanding that that is a requirement for riparian rights.
Now perhaps the question is does he have any prescriptive easement rights? And for that to come into play you may need to understand the ownership of the lake bed. if it is the state that owns the lake then prescriptive rights may not apply since you can not adverse against the state.
Mind you these thoughts are from someone who does not live in MI and doesn't know squat about MI law. I'd look for something in MI law about access rights to inland waters.
Who owns the road?
And, can't you gain rights by continued use? Such as Prescriptive, or even gain title through adverse possession? Seems ripe for prescriptive rights, if the time element is satisfied.
I can't recall anything MI specific, but the trend nationwide is to more public rights if the question is public v. private. This has been made quite clear in both MN and WI (check out their DNR websites). I'm guessing MI would be similar. I think in your case the public has riparian rights along the road front and the State has ownership of the bed in its soveriegn capacity (no unwritten rights therefore). I imagine the lots fronting the road would get some preferential treatment such as first right to a dock permit, but maybe not. Also, if the road right of way is merely a public easement rather than fee ownership by the municipality, then the lots would be riparian. In that case, at the road extension, not the T part, it would seem that all lots bordering the road (owning to center) at the end of the road would be riparian. I would mention that the State (if it has fee ownership of the road) could construct a public marina in that area if they so desire and someone were to bring it to their attention. Your friend may be fine with that, but I doubt that's a result the plaintiff is going to be happy with.
Post the name of the plat and the county, so we can all take a look.
http://www.dleg.state.mi.us/platmaps/sr_subs.asp
Any circuit court judgments for "vacation" attached to the plat?
What does the dedication say about the roads?
Dedicated to the public or private use of the lot owners.
Also, it sounds like the docks and fixtures are removed during the winter,
so I'm not sure one could argue continuous use, but then again,
my PS number is very high.
EDIT: This reply was supposed to be directed to OP.
You say it's a small lake, which probably means non-navigable for title purposes. that means no State-ownership of the bed (check with DNR as to navigability for title purposes).
How is the shore road dedicated? Was it a fee dedication or is the RW an easement? I don't recall if MI goes contrary to this, but in most jurisdictions, the RW is considered to be an easement unless a different intent is clearly expressed in the dedication.
Are the roads in the subdivision public or private? Most likely, with the road following the shoreline for some distance, the intent was to provide shore access to all lots of the subdivision, although the underlying fee may go to the lots that would otherwise be waterfront if not for the shore road.
If the roads are private and owned in common amongst all the lots of the subdivision, then the bed of the lake, or the proportional part representing the frontage covered by the road may also be common area owned by all lots in the subdivision.
If the road is public and dedicated to the local municipality in fee, that porportional part of the bed may be owned by the municipality in a similar capacity as is the road RW. I've never seen this, and if it happens to be the case here, I'd be interested in seeing the dedication document and the law that it is based on.
If the road is a public RW, that may give the public beyond the lotowners within the subdivision legal access to the lake for the traditional public uses of boating, swimming, and fishing. If the road is private, that right is limited to the lotowners within the subdivision.
I lived in a residential subdivision in MI built around a private, non-navigable lake not far from Lansing throughout high school. The roads, 2 lakeside community parks and the lakebed were owned by the HOA - that is owned by all the lotowners in common. I recall the self appointed neighborhood rule enforcer running off unaccompanied non-residents from the parks from time to time.
Your friend, not being an owner of one of the lots of the subdivision, would not have any right of access based upon the subdivision dedication if the road to and along the shore is private. He would have the right of access to boat, swim, or fish if the road is public. Unless he has an easement granted for the purpose somewhere in his chain of title, he does not have the right to place a dock, permanent or seasonal at the lake based upon any concept of Public Trust use or other operation of law except perhaps prescription.
Depending upon how long he and any predecessors in title to his lot have done that, he may have developed a prescriptive right to continue that practice. Seasonal use can probably still be a valid basis for a prescriptive right as long as that use has been consistent, year in and year out based either on a specific date or based upon seasonal conditions. Many riparian owners remove their docks for the winter to prevent damage from the ice. seasonal placement is not at all unusual for that type of use. I've seen this type of use (seasonal recreation) work to secure a prescriptive easement for a hiking trail, for access footpaths to recreation sites, etc. I have not seen it for a use such as for placing a dock.
If you happen to follow the outcome, let us know how it shakes out.
I agree with Evan, but I am not from that state.
1. The lake is probably not navigable and is probably the equivalent of a tract of land.
2. The lake was probably and enticement for the land development, and therefore one might conclude that anything that detracts from the use of the lake or prevents it goes against intent.
3. There may be an argument that the developer still owns the lake, but it just seems logical to me that the lot owners should be able to enjoy it without restriction or blockage if they would have had it when the bought the lots.
If litigated, the lawyers will no doubt find similar recorded cases that set the precedent as to how things like this are handled. "Experts" may cloud the issue with all kinds of red herrings like misapplication of natural hierarchy, water marks, navigability, etc. The goal of an expert here would be to get the facts and don't let anyone else spin them or confuse the issue in a court--if possible. I imagine the bottom line might be intent. In Louisiana the word "Intent" is even included in the Natural Hierarchy, and it says that Intent trumps everything else. But that is related to survey procedures, not title.
MI riparian report thru 1997
This may help, although it is dated.
http://michiganlakes.msue.msu.edu/uploads/files/FAQ%20Page/MI%20Water%20Laws.pdf
Had some sinner and got some more info for you:
Here is a copy of the plat: http://www.dleg.state.mi.us/platmaps/dt_image.asp?BCC_SUBINDEX=6196
Friend is actually in the plat, in Lot 10 - but I don't think it will have a bearing on the case. Main Plaintiff is in Lot 7.
Lake is considered navigable. And the plat dedicates the roads to the public, which I think will be under the jurisdiction of the local township at this point.
The Plaintiff only has deed to part of Lot 7, no ownership interest as presented. The only claim to riparian access was a copy of the plat, and the surveyors map, entitled as a topographic map, which showed riparian access at 90d to the plat line, from the lot corners - except in the disputed area. The disputed area is the extension of 1st ave, where the topo map split the ROW, and gave the access to the adjacent owners. 1st is not abandoned, it is a paved road, as is Bass Blvd in front of Lot 7.
An interesting thing that I am wondering, and the topo map didn't address is the question as to there being any property between the road ROW, and the lake.
After skimming the complaint, I think there is a real possibility that it will be dismissed right away as most of it is utter non-sense. The main claim boils down to the plaintiff is claiming riparian access in the extension of 1st ave, and alleging a trespass complaint. There is so much wrong with that it is almost funny this guy is attempting this, except that he actually is.
I gotta run for the evening, but I will certainly update things as I get more info.
Well, in looking at the plat I don't see how any lot has any riparian rights. I would take Bass Lake Boulevard to be a public road with (perhaps) unknown ownership. I doubt there was a POA set up in 1896 so I suspect that it is publicly owned by some government jurisdiction.
Having said that, I don't see how any lot owner can stop another from putting a dock in the water. But neither do I see how any lot owner has any more right to put a dock in the water than I have. I would say that whoever controls the lake would have the right to issue or deny dock permits.
Finally, I would say your friend's best defense is to say the person that is bringing the suit has no standing to file a complaint.
See sections K, L, M, N of the link I posted. Unless things have changed since 1997 in MI law, or there is misinterpretation in the document, I see the following.
The court upholds public access of longstanding use across the strip at the end of the roadway T's. They also uphold use by lot owners directly in front of their lots, probably as riparian owners but if not then as implied easement from the plat (one court case listed rejects a strip such as in your case being dedicated to the public). Both parties are out a ton of money for attorney fees, and the status quo is upheld. The ownership status of the right of way does not matter.
Lets see intent to me for what ever that counts for
is that the road was extended on paper to the water
so as to not creat any parcel between the road and
the shore. this means that the shore area belongs to
ever owns the road IE the public.
I remember a big fight in Cadillac so Googled this from the Cadillac News:
In January, Senate Bill 778 passed in the Senate and later in the House to become Public Act 56 of 2012. The bill established that unless a deed, easement or other recorded dedication expressly provided for it, waterfront road ends may not be used for boat hoists, or docks, for mooring between midnight and sunrise, or for any activity that obstructs access to a lake or stream. The bill also allows for local governments to ban or regulate uses that are not specified in property owners’ deeds, easements and so on.
In the city of Cadillac, there are 11 road ends where docks have historically been allowed. Due to recent changes in state law, the city has immediately suspended the issuance of authorization letters for the installation of docks at public road ends. This suspension applies only to docks at public road ends.
May want to take a look at Act 56, 2012.
Scott
Thank you Scott,
That is an appreciated and relevant resource in this case.
I have actually surveyed in this plat, and I know for a fact
that the county has waged war against certain street
front residence who installed platforms and stairs (on land)
in the county's R.O.W., on the (east) lake side of the paved public
road which runs the full length of the plat
The distance to the waters edge varies significantly. In some areas the 66'
extends out into the water, and in other locations, there remains a strip
of dry land outside the eastern edge of the R.O.W.
If the aggressor in this case has installed any
fixtures which fall within the 66' strip, they may
be vulnerable to some of the county's unwanted attention.