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Court of Appeals Allows Docks and Mooring of Boats in Private Park

Written by Lawrence Opalewski on June 16, 2020 Category: Firm News

One of the more common issues when discussing riparian rights is whether access to a privately dedicated park includes the right to access the water and erect docks. While certain legal principles control the analysis, each case is decided on its own facts. Recently, the Michigan Court of Appeals confirmed that some dedications do include docking and water access, even if not clearly stated in the dedication.

In Brown v Kussy, et al, Brown and Kussy both owned homes in the Backus Beach subdivision. Brown’s property was separated from Hubbard Lake by a park. The park was dedicated “for use of lot owners in common.” There was also a public road between Brown’s property and the park. Kussy owned a backlot in the subdivision. The evidence in the case showed that various backlot owners had maintained seasonal docks and moored boats from the park shoreline for decades.

Brown filed suit seeking a declaratory judgment that his property had the exclusive riparian rights to the shoreline in front of his house. Brown desired to build a permanent dock along the shoreline and remove the seasonal docks of the backlot owners. Kussy countered that Brown did not have riparian rights because Brown’s lot did not touch the water due to the separation caused by the road and park. Further, Kussy argued that the park’s dedication gave the backlot owners rights to maintain docks and moor boats.

The circuit court ruled that Brown had riparian rights in the shoreline, but also that the backlot owners had the right to continue to maintain seasonal docks and moor boats. The circuit court found that the original dedication was intended to grant docking and mooring rights to the backlot owners. Both sides appealed.

On appeal, the Court of Appeals noted that the interpretation of the dedication was a question of fact. Therefore, the circuit court would only be overturned if there was a finding of “clear error.” The court first confirmed that extrinsic evidence interpreting a dedication or easement is only admissible if the writing is ambiguous. The dedication in this case provided that the park was “for use of lot owners in common.” The court found that it was not clear error for the circuit court to find that such language was ambiguous. For example, there was no indication of what “use” was permitted or prohibited.

The court then moved on to the circuit court’s finding that the dedication was meant to include docking and mooring rights. At the circuit court, Kussy had submitted evidence that the backlot owners always had an “understanding” that the park was meant for docking and mooring. Further, photographic evidence showed that backlot owners had maintained seasonal docks since at least 1936. The court affirmed the circuit court’s decision that the dedication was intended to convey docking and mooring rights for the backlot owners. The judges did caution that only seasonal docks were permitted, and those docks must not “unreasonably interfere” with Brown’s use of the property.

The court also confirmed that Brown did indeed have riparian rights in the shoreline. The court explained that the private park and public road separating Brown’s property from the water did not terminate his riparian rights. This is because a property owner holds a reversionary interest to the center of a public street. If the public street is decommissioned or abandoned, the ownership reverts back to the property owner. Similarly, a privately dedicated park is legally a permanent easement with the actual land ownership belonging to the property owner separated by the park from the water. Combined, these legal principles meant that Brown had a reversionary interest in the land under the public road and held the fee interest in the land under the private park. Thus, Brown had riparian rights in the land touching the water.

This case shows how fact-intensive riparian rights cases can be. While the legal principles endure, they can have vastly different outcomes in different cases. The attorneys at Dalton & Tomich, PLC practice in the area of riparian rights. If your water rights are being violated, please do not hesitate to contact us. We would be happy to speak with you.

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