LIFE ON THE LAKES
Happy New Year from Linnell & Associates, PLLC! We are thrilled to be asked to continue with our column and bring you snippets of insight into the laws surrounding waterfront properties.
Recently, a friend asked me about the laws of inland lakes, and whether the rights of property owners on those lakes vary by size, and by how the lake was created. The simple answer is “yes” to both, and the explanation is a bit more complicated. We have discussed riparian rights before in this column and they typically include: the right to make natural and artificial use of the water in the watercourse; the right to construct and maintain a dock; and the right to use the entire surface of the watercourse for recreational purposes. These are the privileges of landowners abutting the watercourse and are separate rights from state-law legal privileges, such as the public right of recreational access, which allows public use of waterways that are navigable under Michigan law.
The riparian rights come from a natural waterway. Our courts have defined “natural” in this context as a “stream of water fed from permanent or periodical natural sources and usually flowing in a particular direction in a defined channel, having a bed and banks or sides, and usually discharging itself into some other stream or body of water.” Conversely, our courts have defined “artificial” in the context of watercourses as “waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes, and the like.”
There is the further issue of the size of a watercourse that riparian rights attach to, even if it is naturally created. Pursuant to MCL 324.30101, an inland lake or stream does not include the Great Lakes, Lake St. Clair, or a lake or pond that has a surface area of less than five (5) acres.
The issue of riparian rights on artificial watercourses (regardless of size) was considered in Holton v. Ward, 303 Mich App 718, 722; 847 NW2d 1, 5 (2014.) In Holton, the plaintiff wanted to claim riparian rights to a twenty (20) acre pond that was created when a common owner of plaintiff and defendant’s properties wanted to drain a wetland on part of the property and created a dam to do so. The overall effect was that a twenty (20) acre pond was formed between the neighboring properties. In determining that the plaintiff (who did not create the artificial watercourse) had no riparian rights to it, the court reasoned: “If the original wetland modified by the common owner was not a “natural watercourse,” it is impossible for plaintiff to have any riparian rights in the (artificial) pond and deeper wetland created by the common owner’s actions.” Thus, even if more than five (5) acres, an artificial watercourse does not gain riparian rights.
If you have questions about the legal issues of residing upon and using artificial watercourses, please do not hesitate to contact us.