Natural Resources – Water – Riparian Rights
Michigan has always recognized a landowner’s right to reasonably use surface waters immediately adjacent to the landowner’s property. This right is known as riparian rights. Landowners bordering a waterway are considered riparians. Michigan defines riparian law as that is bounded by, or includes therein, a natural watercourse. This definition, particularly the phrase “natural watercourse,” excludes artificial watercourses (canals, drainage and irrigation ditches, flumes, and other man-made waterways) from riparian rights.
A riparian (defined above) is a person who is in possession of riparian real estate, or in some instances, a non-riparian may obtain riparian rights through an easement or license. Michigan law recognizes the following riparian property rights:
•The right to exclusive possession and use of the shore;
•Ownership of the bottomlands of the adjacent waterbody to the middle of the lake;
•Access to navigable waters;
•The right to install a dock out to navigable waters;
•The right to anchor a boat to owner’s bottomland; and,
•The right to use the water for domestic purposes.
Riparian law distinguishes between “natural” uses and “artificial” uses. Natural uses include those that meet the domestic needs of the riparian landowner, including: drinking, washing, and watering gardens or a small livestock herd.
Artificial uses are those which increase comfort or economic benefit that are not essential to existence. Use of water for artificial purposes by riparians must meet two requirements: (1) the use must be only for the benefit of the riparian land; and, (2) the use must be reasonable in relation to the rights of other riparian users. This is known as the reasonable use doctrine.
Riparians with land bordering the Great Lakes do not have all of the above rights. The rights of Great Lakes riparians differs in the following ways. Firstly, the bottomland of the Great Lakes is owned by the state, and held in trust for the public. Secondly, Great Lakes Riparians do not have exclusive use of the entire bank and shore. This is a contentious issue, in Glass v Goeckel, 473 Mich 667, the Michigan Supreme Court decided that there is a servitude for the benefit of the public that extends from the water’s edge of the Great Lakes to the ordinary high water mark (“OHWM”). In this thin strip of land the public is allowed to walk without permission from the riparian.
The OHWM is difficult to ascertain, the Michigan Supreme Court Defined it as:
“[T]he point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark.” Glass v Goeckel, at 691.
The rights of riparians whose lands border navigable waters are limited to the extent that public rights exist in such waters. The public right to navigate a waterway clearly includes the right to use it for transportation and in most cases recreational use. For example: riparians right to build a dock or wharf out can be limited by the public’s use of the waterway; if a riparian’s dock obstructs navigation, the dock can be removed.
Riparians are also subject to reasonable governmental regulations. These regulations may include: (1) what type of boats are permitted on a lake; (2) the minimum frontage required for lake-access real estate; or (3) how many boats may be launched or stored at a single property.
Lakefront property owners should contact their attorney for any questions they may have.