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Access to a lake: Michigan easements and docking rights

Written by Lawrence Opalewski on September 28, 2018 Category: Easements and Riparian Rights, Land Use and Zoning, Michigan Land Use and Zoning, Water Access

 

It is no secret that landowners who abut a body of water (riparian owners) often deal with others attempting to access that water. Earlier this year, the Court of Appeals of Michigan dealt with a case involving a riparian owner who brought suit after a group of neighbors constructed a dock at the end of a private road near her property. The court’s method of analysis in this case is helpful to understanding riparian cases in general. Ultimately, courts will typically give deference to the intent of the original platting and purpose of a subdivision, and will also employ principles favoring broad yet reasonable access to water.

In Drago v. Savage, the Court of Appeals of Michigan reviewed the Clare County Circuit Court’s decision that a dock could be maintained at the end of a private road abutting a lake and that boats could be moored there. The plaintiff had sought to limit the rights of non-riparian lot owners to maintain the dock. On appeal, the plaintiff argued that the trial court erred in finding that lot owners in the Raevena Shores Subdivision were permitted to maintain a dock at the end of the private drive.

The court first noted that the original plattors of the Raevena Shores Subdivision dedicated “the streets as shown on said plat” to “the use of The public excepting those indicated as ‘Private’ which are dedicated to the use of The Lot Owners, including the area between the mean low water line and the shore line Traverse line.” At issue in the case was a street between lots 31 and 32 that ended at the lake and that was designated as private on the plat map.

The trial court had determined that defendants had access to the road and could maintain a dock based on cases that involved rights incident to a dedication of platted property. Essentially, the trial court had concluded that the plattors of Raevena Shores Subdivision reserved a private way of access to the lake for the lot owners of the subdivision.

The court first pointed out that whether the original plattors intended to grant rights to non-riparian owners is determined from the language of the dedication and the surrounding circumstances. Therefore, the extent of the right of the non-riparian owners of the Raevena Shores Subdivision to use the end of the private road to maintain a dock depended on whether the scope of the dedication of the platted property encompassed the right.

The court further noted that, generally, roads that are dedicated for public use and end at the shore of navigable waters are presumed to have been intended to provide public access to the water. Even though this presumption applies to roads dedicated to the public, the Court found that it should also apply to private roads. Thus, a road dedicated to private use that ends at the edge of a lake should be presumed to have been intended to provide access to the lake.

Finally, the court stated that individuals who “gain access to a navigable waterbody have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming,” as well as the right to temporarily anchor boats. Further, the right to build a dock at the end of an access road is derived from the plattor’s intent to provide access to the water, because building the dock aids in the access. Thus, the court found that the plaintiff “cannot prevent defendants from erecting a dock” where the dock is “within the scope of the plat’s dedication” and does “not unreasonably interfere with plaintiff’s use and enjoyment of her property.”

Ultimately, the Court of Appeals affirmed the circuit court’s decision and found that the non-riparian lot owners had a right to maintain the dock at the end of the private road.

The attorneys at Dalton & Tomich, PLC are experienced in riparian issues. If you have questions about your access to water, or someone else’s use of a body of water, please do not hesitate to contact us. We would be happy to speak with you.

Do you own or plan to purchase property near a Michigan lake?

If you have concerns about others using your property to access the water without your permission, our free guide to Easements, Access and Riparian rights may be a valuable resource.

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