This page is maintained by Andy Blodgett.  Andy is an attorney at Parker Harvey, a full-service law firm in Traverse City, Michigan.  A large portion of Andy’s practice is representing clients in property disputes.  You can view his firm profile here, email him, or visit Parker Harvey’s main page. 

“Fake Lake?”  Is your lake artificial or natural?

“Fake Lake?” Is your lake artificial or natural?

Decisions released by the Michigan Court of Appeals in the last decade have cast doubt on the riparian rights of land owners on some lakes.  These decisions have created a distinction between “natural water courses” and “artificial” bodies of water.  These rulings create problems for lakes, some quite large, which were created or expanded by the damming of a river.  Unfortunately, the Court of Appeals decisions have thrown these property owners into limbo, stating that they do not enjoy riparian rights, but leaving a legal void by not declaring what rights, if any, these landowners enjoy.

The three cases are Persell v. Wertz,[1] Holton v. Ward[2], and Lake Adrian Developers, LLC v. City of Adrian[3].   All three decisions dealt with manmade bodies of water.  In Persell, a former landowner had dug a pond which later crossed a common property line.  In Holton, a wetland had been dammed to create a pond less than 5 acres.  In Lake Adrian Developers, LLC, Wolf Creek, a natural water course, had been dammed by the City of Adrian in 1941.  In all three cases the Court of Appeals ruled that owners of land adjoining these bodies of water did not enjoy riparian rights.[4]   The riparian ownership includes the ownership of the bottom lands of the body of water.  The cases follow the definition of riparian ownership or riparian land from a 1967 case[5] which defines such land as land “bounded by a natural water course.”  Thompson stated that land abutting an artificial water course has no riparian rights and defined artificial water courses as waterways “that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes and the like”.  Using the Thompson definition, these three cases held that the bodies of water at issue were artificial, not natural water courses, and thus owners of lands abutting the water did not enjoy riparian rights. 

While these decisions may have been appropriate for the bodies of water at issue, they raise troubling issues for larger bodies of water.  Consider, for instance, a lake such as Lake Leelanau, which was an original lake or river but was dammed in 1854 to create the large lake as we know it now.  Ever since that time, owners have been presumably using the lake and functioning as land owners consistent with riparian rights.  These three cases have the possibility of throwing 150 years of assumptions out the window.  A court applying the rationale of these three cases to a lake such as Lake Leelanau could conduct a historical/factual finding and declare Lake Leelanau to be an artificial water course, where the adjoining land owners do not enjoy riparian rights.  Or, to become even more convoluted, a court could find that some land owners who can prove that their land abuts the “original” or natural water course prior to the damming enjoy riparian rights.  However, those who possess land adjoining the lake as it was created after the 1854 damming do not enjoy riparian rights.  The former group of owners could, for instance, have the right to install docks and seasonably moor boats, while the later owners would not.  This is obviously an absurd situation, but would be a legally correct result if a court blindly applied the rationale of these three cases.

There are no subsequent cases which seek to interpret the holdings of these cases regarding a larger body of water which has been used as a recreational lake for a longer period of time.  Such a case will, however, certainly arise at some point in the future.  When it does, the judicial system will be forced to address the implications of these three rulings, and the result could have quite a dramatic change on the assumed riparian rights of owners on certain lakes.                           

 

[1] 287 MichApp 576 (2010).

[2] 303 MichApp 718 (2014).

[3] COA # 322511 (2015).

[4] Riparian rights are “special rights to make use of water in a waterway adjoining the owner’s property.” See Dyball v. Lennox, 260 MichApp 698 (2004). These rights include the right to make natural and artificial use of the water in the watercourse, the right to construct and maintain a dock, and the right to use the entire surface of the water course for recreational purposes.   

[5] Thompson v. Enz, 379 Mich 667 (1967).

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