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If you want to lose your riparian rights, do what this owner did.
"No power on earth has a right to take our property from us without our consent." - John Jay
The issue of riparian or littoral rights is a gift that keeps on giving. Previous blog entries have discussed whether an owner of property that abuts a private park which sits on a lake has riparian rights, property owners fighting over a fence that divided a manmade lake and a neighbor cutting down his neighbor's trees to get a truck to the waterfront to build a dock. The lesson of all three stories is if you think you have access to a lake or a river, your property rights in fact possess that right. Often what appears to be customary and uncontroversial is not and even if you're right, it may cost you significant legal fees to protect that right.
In Kranz v Terrill, the Court of Appeals reversed the lower court's holding on several areas of law, but ultimately found for the party seeking to place a dock by virtue of an easement. A previous owner of the property at issue in this suit, sold a back lot to another and conveyed with that property an easement over a strip of land for a right of way to access the adjoining lake, but the language of the easement did not convey a right to maintain a dock. Other properties divided and sold by the owner of the waterfront property contained such language in their easements.
From the time of the grant of easement, the owners of the back lot that had access rights only used the easement and erected a dock. The dock had been in place since 1957. The new owners continued to use the dock from 2000. However, the plaintiff decided to challenge the existence of the dock by filing suit in 2010, asking the court to rule on the relative rights of the parties to maintain a dock on the easement.
The back lot owner countered the lakefront owner's claims on a variety of bases. First, the back lot owner claimed that the lakefront property owner did not, in fact, own lakefront property and was therefore not a riparian owner with rights she could protect. The basis for this claim was a wavy line along a plat map, which the back lot owner demonstrated that she did not own land that actually abutted the lake. However, the Court rejected that argument, finding instead that even if the wavy line represented some sort of walkway, Michigan law recognizes that land separated by things like a highway that is contiguous to the water remains riparian land.
Next, the back lot owners claimed that the mere grant of "access" to the lake provided them with riparian right. The Court ruled that Michigan law provides that mere grants of access do not create riparian rights. As the back lot owners only had access rights, they did not have riparian rights and could not install docks at the easement as if they had such rights.
Finally, the back lot owners argued that they obtained riparian rights through a prescriptive easement. According to the Court, a prescriptive easement is created one of two ways: (1) the express easement should have granted the right, but there was some imperfection so that the original intent was not expressed in the easement or (2) one obtains a right in the same manner as it would under adverse possession. As for the first means of obtaining a prescriptive easement, the Court determined that no evidence was presented to demonstrate an intent to convey a express easement.
However, all was not lost for the back lot owners. As for the second means of obtaining a prescriptive easement, the Court found that if they could demonstrate that their use of the property was "open, notorious, adverse or hostile, and continuous for a period of 15 years," they would have obtained riparian rights in this manner. Although the current owners of the back lot had only owned the property for ten years, the Court determined that they could tack on previous years of prescriptive use by previous owners, which in this case they could. In this case, the Court found that the use of the docks was inconsistent with the rights of the owner of the waterfront property and the owner of the waterfront property could not demonstrate that such use was permissive, given the limiting language of the actual easement.
Again, the lesson to be learned is that if you think you have access to the waterfront to use as a riparian owner, you should confirm that fact by investigating these rights BEFORE you buy. While the back lot owners ultimately prevailed here, it took two years of legal wrangling to do so. Last I checked, very few attorneys do such work pro bono, so it could cost you dearly to establish and/or protect your rights.
In the alternative, the other lesson to be learned is that if someone is using your property without your permission, even if you have no present objection, nip that use in the bud by refusing access or establishing a written easement in order to protect your own rights. John Jay is correct, except that your consent can be implied by failure to exercise your ownership rights, as the plaintiff learned.
The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney. He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer. In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a former Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).