Water use at perpendicular versus parallel roads: Where are public versus riparian rights?
Don’t let perpendicular versus parallel roads get crossed in your head. There are differences in public use and riparian rights.
With respect to use and enjoyment of Michigan’s waterways at or along public roads, there is a difference between perpendicular road ends and parallel public roads or streets in platted subdivisions. Generally speaking, the public is free to use and enjoy a lake or river at the end of a public road, but is generally not able to access the water where a public road or street runs parallel to the water and between private properties in a platted subdivision. This is a generalization, and it is important to differentiate these situations in more detail.
In 2012, the Natural Resources and Environmental Protection Act, PA 451 of 1994, was amended by Public Act 56 (later amended again by PA 168 of 2014 and is now MCL 324.30111b) to define “public road end” as the terminus at an inland lake or stream of a road that is lawfully open for use by the public. The amendment also included the following (excerpt):
(1) A public road end shall not be used for any of the following unless a recorded deed, recorded easement, or other recorded dedication expressly provides otherwise:
(a) Construction, installation, maintenance, or use of boat hoists or boat anchorage devices.
(b) Mooring or docking of a vessel between 12 midnight and sunrise.
(c) Any activity that obstructs ingress to or egress from the inland lake or stream.
(2) A public road end shall not be used for the construction, installation, maintenance, or use of a dock or wharf other than a single seasonal public dock or wharf that is authorized by the local unit of government, subject to any permit required under this part.
Public Act 56 of 2012 was intended to balance access to and enjoyment of Michigan waterways with environmental protection and riparian interests. The law relies on the common law doctrine of reasonable use in striving for this balance. See the Michigan State University Extension article What is reasonable use of Michigan’s waters?. However, it deals only with perpendicular public road ends.
The situation where a public road or street runs parallel to a water body and between the water and private property in a platted subdivision is quite different. The Michigan Supreme Court in 2000 Baum Family Trust v. Babel, No. 139617, December 29, 2010, issued an opinion consistent with decades old case law that front-lot owners in a subdivision – those with just a public road between their property and the water – enjoy riparian rights. The opinion reads in part “…Michigan's jurisprudence governing the riparian rights of front-lot owners provides several constant and governing principles. First, front-lot owners whose property is separated by a public road running parallel to the water are deemed to have riparian rights . . . . Second, ‘[t]he ownership of the walks and alleys and the scope of the dedication of these lands are interrelated, but distinct inquiries.’ Thies, 424 Mich at 289.” The Michigan Supreme Court held that because public roads dedicated before 1967 do not include the type of “fee title” (that is, full ownership) capable of severing riparian rights, front-lot owners in this case enjoy riparian rights. The court also held that the road commission, therefore, could not exercise riparian rights as it was asserting, or thereby grant public access to the water, because such uses are incompatible with the underlying dedication of the road way.
In 1967, the Plat Act (PA 91 of 1839, as amended) was replaced by the Subdivision Control Act (PA 288 of 1967). Prior to 1967, the Plat Act stated that a recorded plat would convey land “…in trust to and for the uses and purposes therein designated, and for no other use or purpose whatever.” In other words, a conveyance for a public road only provided for passage by the public, not full interest in the land. The Subdivision Control Act (now the Land Division Act, PA 288 of 1967, as amended) included similar wording, but added language that clarified the vesting of fee simple ownership to the public or any person when a plat is recorded (MCL 560.253).
In conclusion, there is a difference in ownership interests and public access at public road ends versus public roads running parallel to a water body. Generally speaking, the public is free to reasonably use the water at the end of a public road, but is not able to access the water where a public road runs parallel to the water and adjacent to private property in a platted subdivision. Even this distinction may be overly general, as the Michigan Supreme Court wrote in Baum “…All cases involving the public dedication of land 'must be considered with reference to the use for which they are made…' White’s Lessee, 31 US at 438." Further, land for state highways is acquired through various means including fee simple ownership, easements, various types of consent agreements, etc. Suffice it to say that public access to the water at or along public roads depends on the ownership of the land, the means of dedication of the roadway, and whether there are any other restrictions on access (for example, only certain points of access for habitat protection).
Michigan State University Extension offers training on land use and natural resources for riparian property owners and local officials alike. For more information, contact a land use educator near you. Please note, nothing herein should be interpreted as legal advice. For assistance with a specific riparian property legal situation, individuals are encouraged to contact an attorney with the Real Property Law Section of the State Bar of Michigan.
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