BY HUNTER K. AVIS
WITH RICHARD D. LINNELL
SPECIAL TO OAKLAND LAKEFRONT
As a state with a vast array of waterways, from shallow spring-fed creeks to the far dark corners of Lake Superior, Michigan has no shortage of riparian diversity. The general public has ample access, through the public trust doctrine, state parks, the Department of Natural Resources launch sites, public road ends, and every other manner of lawful public access. Indeed, nonriparian 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 activities such as boating, fishing, and swimming. Riparian and littoral owners have the right to share the reasonable use of the waters with each other. Note these are independent rights: riparian owners must share with each other if more than one owner exists, but do not necessarily have to share with the public.
In our legal briefs and in this series of articles, we frequently cite the former sentence in regards to the rights of the public on navigable waterways. However, very rarely do we discuss the test for determining whether a waterway is navigable, and subject to the rights of the public, or not.
In Bott v Comm’n of Nat. Res. of State of Mich. Dep’t of Nat. Res., 415 Mich 45, 57; 327 NW2d 838, 839 (1982), John Bott owned 800 acres of land in northern Michigan. Bott owned the land on all sides of a 35 acre lake with no inlet (spring-fed), but with an outlet creek connecting the lake to a larger, 75 acre lake with private homes and a public boat launch. Bott owned all the land on both sides of the outlet creek, as well as some shoreline on the 75 acre lake. The outlet creek is approximately 250 feet in length and varies from two feet to eight inches in depth. Bott sought to exclude the general public from the 35 acre lake on the basis it was not navigable. If the smaller lake was not navigable, it was not subject to the public trust doctrine. Bott’s case presented two key questions for riparian owners: first, whether the owner of a “dead end lake” has a right to exclude the public from the surface waters of the lake, and second, whether the antiquated “log flotation test” was still the best measure to determine if an inland waterway was navigable or not.
Beginning in 1853, Michigan courts adopted a rule that waterways capable of floating logs to market fell within the category of navigable streams. In Bott, the opposition, and the dissenting justices in the supreme court, proposed a “recreational boating test”. In sum, whether a small boat with motor or oar power has passage, as the standard for determining whether an inland waterway is navigable.
The Supreme Court in Bott declined to adopt new tests or standards and upheld the log float test. The Supreme Court reasoned that there is considerably more water in a bathtub than the creek outlet connecting the two lakes in Bott, and found the outlet creek both insufficient for commercial log floating purposes andfor recreational boating. Put another way, in order for a creek to be navigable, it must be sufficiently wide and deep to permit use for commercial purposes. Further, the Supreme Court upheld prior precedent that a dead-end private lake cannot be used as a highway, and thus the riparian landowners have a right to exclude the public from it.
If you have questions about the status of your waterway, we are happy to assist. Please contact us at firstname.lastname@example.org.
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