There are several ways to access a lake, one of which is to use another waterbody like a creek or river that connects to such lake. However, the court will use the appropriate navigability test to determine whether both the creek or river and the lake are navigable waters.
Another way is to use a public road that terminates at the edge of navigable waters. Finally, one may access the water using someone else’s land.
Determining whether a waterbody is navigable is critical. Courts are split when it comes to the test used to determine whether a waterbody is considered navigable. One approach—known as the federal test—considers a waterbody navigable if it was used, or capable of being used, in its natural condition, as highways for trade when it forms by itself or by uniting with other waters a continued highway over which commerce is or may be carried on with other States or foreign countries.
Another approach—known as the federal test of navigable capacity—allows a court to find a waterbody navigable if it was capable of being made navigable after reasonable improvements regardless of its natural state. In Michigan, courts use yet another test known as the “logfloating test” of determining navigability. Here, the question is whether the waterbody is capable of being used, in its natural state, for purposes of commerce for the floating of vessels, boats, rafts, or logs.
The Supreme Court of Michigan reaffirmed this test in a case where riparian landowners sought to prevent other nonriparian landowners from accessing the lake. There, several defendants were accessing a lake using a 240 feet long creek that varies in width from 100 to 15 feet. The Court
emphasized that the creeks connecting the smaller with the larger lakes are too shallow to permit the flotation of logs.1 Thus, because the creeks were not “navigable under the law,” the Court held that only the riparian owners have the right to use the lakes.
If you live in a neighborhood where there is a public street or alley that provides access to navigable waters, it is likely that you have the right to use the surface of the water in a reasonable manner for such activities as boating, fishing, and swimming. However, activities like lounging, sunbathing, picnicking, and the erection of boat hoists or docks are usually prohibited. Besides such rights, however, riparian owners have complete control of the use of land covered with water.
1Bott v. Comm’n of Nat. Res. etc., 415 Mich. 45, 60 (1982).
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