| 1 Easements, Access and Riparian Rights A Guide to the Laws Governing Access to Michigan’s Lakes, Streams and Waterways Daniel P. Dalton, Larry Opalewski, Alex Reuter and Adel Nucho | 2 Do you own or plan to purchase property on or near a Michigan lake or other waterbody? Are you concerned about others using your property to access the water without your permission? Understanding the laws governing easements, riparian rights and access to waterways, and how those laws relate to your property, is crucial to ensuring your ability to enjoy it. So what do you need to know? | 3 ith more than 11,000 inland lakes in the state of Michigan, many property disputes arise concerning W the rights and interests of those owning land on and around them1. Most disputes that make it to court involve lakefront property owners seeking to prevent backlot owners from accessing or using the lake in a certain manner. This paper will give you a better understanding of your property rights—whether you own or plan to purchase property on or near a waterbody. Specifically, you will learn the significance of own- ing land that touches a waterbody, as opposed to being near the same. Additionally, it will explain how you can legally access a waterbody using another person’s private property. The Michigan-based land use and zoning attorneys of Dalton & Tomich, PLC have helped clients defend their rights to use and access lakes and other waterbodies across the state of Michigan. If you own property on or near a Michigan lake, or you plan to purchase such property soon, please contact us. We’ll help you understand and defend your rights as they relate to some of our state’s most beautiful natural resources. Dalton & Tomich, PLC Attorneys at Law Daniel P. Dalton Lawrence Opalewski [email protected] [email protected] The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 313.859.6000 Alex Reuter Adel Nucho daltontomich.com [email protected] [email protected] | 4 Table of Contents 5 The Basics of Property Law • The Type of Interest You Hold and the Power to Grant an Easement • Other Restrictions on the Use of Property 7 Water Rights • From the Bottom to the Top: Who Owns the Land Under Water? • What are Your Rights as a Riparian Land Owner? • What Determines Whether You are Using the Water Reasonably? • What are Your Rights as a Nonriparian Land Owner? 10 Ways to Access a Waterbody • The Various Navigability Tests • Public Streets that Terminate at the Edge of Navigable Waters • Gaining Access to Water Using an Easement - The Creation of an Easement by Express Grant - The Creation of an Easement by Reservation - The Creation of an Easement by Prescription 14 Conclusion / About the Authors | 5 The Basics Of Property Law Before we explain your property rights and the ways an easement is created to access a waterbody, the following background information is helpful. The general concept of having interest in “property” includes various rights; these rights are often called a “bundle of sticks.” What sticks you hold depends on the interest you have in a property.2 The Type of Interest You Hold and the Power to Grant an Easement What is an Easement? An easement is If you hold title to property in “fee simple absolute,” you essentially hold essentially the legal right to use another’s the entire bundle of sticks. This bundle includes: property in some way. • the right to exclusive possession Learn more about easement creation, • the right to the personal use and enjoyment of the property limitations and enforce- • the right to manage the property’s use by others, and ment in our video. • the right to income derived from the property3 Watch now. | 6 This also includes the owner’s right to sell, lease, or use the property in any lawful way.4 Additionally, holding title in fee simple absolute generally includes ownership of oil, gas, and minerals in the soil.5 Statute of Frauds The Statute of Generally, the language of the instrument used to create an interest in Frauds, originally property is binding. And usually, the instrument used is known as a deed. enacted in England While there are various types of deeds, the most common type is a warranty in 1677, became deed. In Michigan, for example, if the deed simply states that the seller and is still a fun- damental part of “conveys and warrants” to the buyer the described property, as well as American law. As the provides the amount of consideration, it is deemed and held to be a con- name suggests, its veyance in fee simple absolute to the buyer6– i.e. conveying everything purpose is to prevent that the seller owns. fraud and perjury. In a nutshell, any contract that creates In addition to the landowner’s right to use and enjoy his or her property, or affects inter- it is well established that landowners have the right to allow others to est in land is void unless it is in writing use their property in exchange for some form of consideration—usually and signed by the 7 money. For example, a landowner may execute a lease giving another party to be bound. individual the right to move in and occupy the premises. Such an inter- See MCL 566.108 est in land is “possessory” in nature. (Michigan’s Statute of Frauds). On the other hand, there are interests in land that are “nonpossessory” in nature. For instance, an easement is classified as a nonpossessory right to enter and use land in the possession another8. Among the various types of easements, like utility and sewer easements, a right of way is the most relevant to this paper. Recording Your Interest It is important to remember that only a landowner has the right to burden a Imagine you buy 9 piece of property by granting an easement. It is therefore always advisable a house and three to run a title search in order to determine who the true owner of a parcel is, years later someone and what are his or her respective rights relative to a piece of property. knocks on your door claiming to be the true owner of that house. Holding title Other Restrictions on the Use of Property to land could mean nothing in certain jurisdictions if the While we like to think that we can use our property in any way we please, document (usually unfortunately, this is not always true. Again, whether the use of property is a warranty deed) is 10 not recorded in the restricted depends on the language and provisions in the conveyance. For register of deeds. example, for those living in a condominium or a platted subdivision, the use Generally speaking, of property is likely restricted in many ways. it is imperative to properly record the warranty deed you A plat map or chart of a subdivision almost always contains easement physically receive descriptions, some of which could concern the right to access and use an from the seller in inland lake. Such easements cannot be easily revoked and are deemed to order to protect bind the landowner and his or her successors.11 Always keep in mind yourself from sub- sequent purchasers that by purchasing property that references a recorded plat you are pre- or others claiming sumed to accept the benefits and any liabilities associated with it.12 superior title. | 7 Water Rights e begin with first principles. Laws regarding the allocation of water in the United States are not uniform. Broadly speaking, there are two water allocation doctrines used. W Most western states follow what is known as the prior appropriation doctrine. In a nutshell, this doctrine gives property rights to whoever puts water to beneficial use first. In contrast, most eastern states follow the riparian doctrine, influenced by English law, which allows you to use a waterbody based on the location of the land. The focus of this paper is on the latter. To better understand your right to use a lake, river, pond, stream, or any other waterbody, it is important to know what “riparian” land means. Strictly speaking, a “riparian” land is one that includes or touches a river or any natural watercourse. However, courts tend to use that term to also describe land that includes or touches a lake or sea.13 Therefore, if the land What are you own or wish to buy includes or touches a waterbody, it is considered a Riparian Rights? Riparian rights “riparian land.” Conversely, if the land you own or wish to own does not govern a property include or touch any waterbody, it is deemed and will be referred to in owners’ access this paper as “nonriparian land.” to and reasonable use of Michigan In Michigan, there are two classes of natural waters: Great Lakes and in- water bodies. Learn more in land waters. Ownership rights as to inland waters are subject to the same our video. rules of law—regardless of their size and whether they were rivers, lakes, or ponds.14 Watch now. From the Bottom to the Top: | 8 Who Owns the Land Under Water? Sample Case: Neighbor Access In many eastern states, including Michigan, if the land touches an inland Dispute Four lakefront lake, the owner of such land takes title to the center of the lake or stream property owners 15 bed. In other words, the landowner is deemed to own the bottomland share a lake access under water to the center of that waterbody. Nevertheless, as discussed easement. Owner A below, such ownership may be subject to the public’s right to use the blocks one side of surface of the water.