NEWS

What is “Riparian”?

February 13, 2015 19:42

by  Clifford H. Bloom
Attorney-at-Law
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan

The words “riparian” and “riparianism” are used frequently, not only by this magazine, me and the courts, but also by many lay people.  This month’s column is a basic primer of what the work “riparian” really means.

Technically, in Michigan, a property that touches or has frontage on a lake (whether an inland lake or one of the Great Lakes) is “littoral.”  Properties touching or having frontage on a flowing body of water, such as a river, creek, or stream, are “riparian.”  Nevertheless, the word “riparian” has been commonly used for many years to refer to any property fronting on or touching any body of water (whether a lake, stream, river, or creek, but not a wetland or pond), such that even the Michigan courts typically refer to all such properties as “riparian.”[1]  See Glass v Goeckel, 473 Mich 667; 703 NW2d 58 (2005); Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985); Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967).  “Riparian” is sometimes also used to refer to the owner of a riparian or waterfront property.

In Michigan, property that touches or fronts on a body of water is riparian.  See Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985); Rice v Naimish, 8 Mich App 698; 155 NW2d 370 (1967); Hall v Wantz, 336 Mich 112; 57 NW2d 462 (1953); Hess v West Bloomfield Twp, 439 Mich 550; 486 NW2d 628 (1992).  Conversely, property that does not touch or front on a body of water is usually not riparian.  See Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967), and Little v Kin, 249 Mich App 502; 644 NW2d 375 (2002); aff’d in part and reversed in part, 468 Mich 699; 664 NW2d 749 (2003).  Unfortunately, that simple concept is often misunderstood.  Non-riparian properties (often referred to as off‑water properties or “backlots”) can have access to a body of water pursuant to a number of lake access devices such as private easements across riparian properties, road ends, parks, outlots, walks, alleys, and community beaches.  Sometimes, those lake access devices are “public” (whereby any member of the public can utilize the lake access device, not just nearby backlot property owners), while other lake access devices are “private” (limited to the use of certain or all backlot property owners).  In either case, those backlots are not “riparian” simply because they have access to a nearby lake, river, or stream.  Even in those cases where an easement accords a backlot express written enumerated rights almost equal to those of a riparian property owner, the backlot property owner still is not a riparian.  See Little v Kin, 249 Mich App 502; 644 NW2d 375 (2002); aff’d in part and reversed in part, 468 Mich 699; 664 NW2d 749 (2003); Dyball v Lennox, 260 Mich App 698; 680 NW2d 522 (2004); Thies v Howland, 424 Mich 282; 380 NW2d 463 (1985).

For properties adjacent to the waterfront, isn’t it easy to ascertain whether or not a particular property is “riparian” simply by reviewing the legal description, the original plat (if it is a platted lot), or a survey?  Unfortunately, it is not always that simple.  In some cases, the property appears to be waterfront (or at least an apparently unencumbered waterfront), only to have it turn out later that there is a property “gap” between the parcel or lot involved and the water that is owned by someone else.  Or, situations arise where there is a platted road, walk, park, or land strip located between the body of water and the lot or parcel involved.  It is not uncommon for a person who purchased what they believed to be an unencumbered waterfront property to have a rude awakening later when a shoreline “gap” is discovered or members of the public or backlot owners in the plat involved start utilizing the shoreline of the property with the full support of Michigan law due to the presence of a previously-forgotten dedicated easement, road right-of-way, walk, park, or alley located between the purchaser’s new lot and the water.

Such waterfront problems tend to fall into one of two categories.  First, situations arise where the lot or property involved does not actually extend to the water’s edge (and as such, is usually not riparian).  There is a “land gap” between the lot and the water.  If the land gap is relatively large, the nearby lot or parcel that does not touch the water is normally not riparian or waterfront.  That is true regardless of whether the land gap is owned by someone else (due to a reservation in an earlier deed) or even if it is unclear who owns the land gap.  However, there is a limited exception to the rule that all riparian property must touch a body of water.  In some cases where the land gap is relatively small, no other party has claimed the property comprising the land gap for many years, and the first tier lot or parcel owners have treated the land gap as their own, the Michigan appellate courts have indicated that they will disregard an insignificant land strip and will treat the first tier lots or parcels as being riparian.  See Sands v Gambs, 106 Mich 62 (1895) and Kranz v Terrill (unpublished decision by the Michigan Court of Appeals dated September 20, 2012; Case No. 305198).  The second situation involves the above-mentioned so-called “parallel” easements or lake access devices benefitting the public or other lot owners within the plat such as an easement, road right-of-way, park, walkway, or alley.  These items often run along the waterfront.  The parcel or lot may still be riparian or waterfront, but subject to the usage rights of others.

In Michigan, legal descriptions for waterfront properties almost never expressly extend beyond the water’s edge or shoreline and rarely describe the bottomlands of a body of water.[2]  In fact, legal descriptions for waterfront property in Michigan almost never expressly state that the property involved is riparian.  In almost all cases, however, where a bona fide legal description in the chain of title for a particular property describes the property as “extending to the water’s edge,” “ending at the water’s edge,” “going to the water’s edge,” “extending along the water’s edge,” “running along the shore,” “going to the lake (or river),” or similar language, it means that the property is riparian.  Furthermore, Michigan courts generally interpret that language on inland lakes as meaning that the bottomlands adjacent to that property are also included within the legal description, even though the legal description indicates or implies that the property “ends” at the water’s edge.  See Hilt v Weber, 252 Mich 198; 233 NW 159 (1930); Mumaugh v McCarley, 219 Mich App 641; 558 NW2d 433 (1996); Bauman v Barendregt, 251 Mich 67; 231 NW 70 (1930).  Of course, such language does not rule out the presence of an easement, road right-of-way, etc., along the waterfront that must be ferreted out by the due diligence of a prospective purchaser.

What is a “meander line”?  Despite popular misconceptions, it is generally not a boundary line or an indication of specifically where a lakefront lot ends or the water was located when the lot or parcel was created.  A meander line is often defined as a traverse of the margin of a permanent natural body of water.  The original government surveys for properties in Michigan (from 150 years ago or even earlier) often used meander lines to ascertain the amount of dry land remaining after separating out the water area.  Normally, the lake, river, or stream itself determines boundary lines, not meander lines.

What is a “traverse line”?  A traverse line is a technique used by surveyors to describe an area along a lake or shoreline, without having to actually survey every nook and cranny along an irregular shoreline.  Typically, a surveyor will legally describe a traverse line that is slightly landward of the body of water, and then indicate that the legal description for the lot or parcel also includes all property located between the traverse line and the body of water.

These are some of the basics of riparianism.

[1] Ponds and some artificial lakes may not have riparian rights.  See Holton v Ward, 303 Mich App 718 (2014), Persell v Wertz, 287 Mich App 576 (2010); In Re Martiny Lakes Project, 381 Mich 180; 160 NW2d 909 (1968); Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967).

[2] And, in fact, this can create a real problem regarding the apportionment of bottomlands—that is, which waterfront property owner owns which bottomlands.



Read the MLSA January 2015 Newsletter Here

January 28, 2015 08:51

The Michigan Lake and Stream Associations January 2015 Newsletter is available for

download by  clicking here



Mi Department of Natural Resources Launches Fishing Tournament Information System

January 15, 2015 12:26

bass tournamentsIn an effort to improve planning and coordination, and thus minimize increasingly common scheduling and boat launch facility use conflicts between various groups sponsoring fishing tournaments on Michigan inland lakes, the Michigan Department of Natural  Resources has launched an on-line program entitled Michigan Fishing Tournaments Information System. The system was initiated to assist tournament organizers and the fishing community to schedule a tournament or view scheduled tournaments for a particular lake, boat launch ramp or date. In addition, the new system will allow fishing tournament organizers to report their catch data which will ultimately assist MDNR Fisheries Division personnel in managing Michigan’s increasingly important inland fishery.

The on-line system may be viewed at  http://www.mcgi.state.mi.us/fishingtournaments

 



MI Certified Natural Shoreline Professional to be Offered in East Lansing in 2015

January 15, 2015 11:40

The Michigan Natural Shoreline Partnership is pleased to announce that registration is now open for its 2015 Certified Natural Shoreline Professional training course in East Lansing, Michigan on the campus of Michigan State University. This certification program, designed for marine and landscape contractors working on inland lake shorelines, will equip you to expand your business to better serve lakefront property owners looking for alternatives to turf grass and sea wall to the water’s edge. Through classroom and field sessions you will learn:

  • The relationship between lakes and their shorelines
  • Shoreline soils, plants and ecosystems (including native plant communities)
  • Michigan water law and how to complete a successful permit application
  • How to assess a shoreline property for problems and potential
  • Methods, techniques and designs for natural shoreline landscaping and bioengineered (plant-based) erosion control

Certification is through the Michigan Natural Shoreline Partnership. To receive certification, you must: 1) complete two full days of classroom instruction, 2) complete one full day of hands-on field instruction, and 3) pass the certification exam.

Please note that the East Lansing course is the only CNSP course being offered in 2015. Please see session dates and details on the registration form included in this issue of The Michigan Landscape. Register soon as seating is limited. If you have questions about the program please email Dr. Robert Schutzki at schutzki@msu.edu, phone 517-420-4041.

 



Shoreline and Shallows Conference Registration Now Open

January 11, 2015 11:19

Submitted by Lois Wolfson, MSU Institute of Water Research

The Michigan Natural Shoreline Partnership’s 2015 Shoreline and Shallows Conference will return to  Michigan State University’s Kellogg Center on Wednesday, March 11, in East Lansing, MI.  The title of this year’s conference is “Challenges and Successes” and will feature a natural shoreline research and policy presentation by the Vermont Department of Environmental Conservation.  This year’s conference will also include two presentations on design considerations when planning for river bank versus lakeshore restoration. Guidance on costing out natural shoreline projects will be offered and speakers will explore subtle siting details that may be affecting two of the Certified Natural Shoreline Partnership demonstration sites.

The agenda for the one-day conference, along with a link to online registration, is available at www.mishorelinepartnership.org and then clicking the MNSP Shoreline and Shallows Conference option on the menu bar.  Early bird registration is $35.00 and includes lunch. Regular registration after February 25 is $45.00, including lunch.  Walk-ins are accepted but lunch is not guaranteed. The conference is sponsored by the Michigan Natural Shoreline Partnership. Co-sponsors include: the Michigan Department of  Environmental Quality Water Resources Division; Institute of Water Research, Michigan State University; MSU Extension Greening Michigan Institute; Michigan Lake and Stream Associations, Inc.; and the Michigan Chapter, North American Lake Management Society. For further information, please contact: Lois Wolfson at wolfson1@msu.edu or 517-353-9222.

 

 



Great Lakes Conference Celebrates 25 Years

January 11, 2015 11:03

Submitted by Lois Wolfson, MSU Institute of Water Research

The Great Lakes are a valued resource to Michigan, providing water for recreation, consumption, and power; world-class fisheries, and multiple other uses. They are subject to a variety of challenges  including invasive species, conservation and restoration; tributary impacts, habitat loss, harmful algal blooms, and other water quality issues. Celebrating its 25th year, the conference will address many of these key topic areas and highlight some of the latest research and management efforts being developed for the Great Lakes and its surrounding watershed. The conference will be held at the Kellogg Center, Michigan State University, East Lansing on Tuesday, March 10.  It is free and open to the public; however, advanced registration by Thursday, March 5th is requested.

Please visit: www.iwr.msu.edu/events/ANRWeek to see a complete agenda and registration form. To register for the 25th annual Great Lakes Conference, click here .

For further information, contact: Lois Wolfson <wolfson1@msu.edu>, 517-353-9222.

 

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Apply Now for the 2015 Lake and Stream Leaders Institute!

December 11, 2014 14:30

Caring for Michigan’s lakes and streams through education, leadership and citizen action.

Dr. Jo Latimore, Michigan State University

Each of us has a role to play in protecting Michigan’s magnificent lakes and streams. Are you ready to play your part?  If so, the Michigan Lake and Stream Leaders Institute is looking for you!  The Institute is an outstanding experience for people who are willing to step up in their communities and within their organizations as volunteers, leaders,  or professionals. We invite you to apply for the Class of 2015!

Since 2002, the Institute has developed local water resource leaders who are familiar with current lake and stream science and management practices, and have the leadership skills to work through challenging issues with their communities.  Participants gain an understanding of the regulatory landscape, organizations, and agencies that guide water resource protection and management in Michigan, and learn how to develop productive partnerships. The Institute is a partnership program of Michigan State University Extension, Michigan Lake and Stream Associations, Inc., and the MSU Department of Fisheries and Wildlife.

 “I feel far more confident taking proactive steps in my lake community and providing information to persuade or motivate others,” wrote a 2013 Institute graduate who is a Lake Association Board Member. “I am more prone to speak up, even to a less than receptive audience.  I feel more connected and vested in my own lake.”

The Institute combines PlantRaking_LSLI2013_jhclassroom and small group learning, field experiences, and independent work.  Instructors are leaders and experts in their fields including university faculty, extension educators, state and local agency professionals, leaders from non-profit organizations, and Institute Alumni. Participants attend Institute sessions, complete homework assignments, and conduct an independent project which is shared with their peers and Institute alumni during a Poster Symposium on graduation day. After graduation, participants can engage in an Institute Alumni Program that promotes continued opportunities for learning and service.

 “You will meet enjoyable, good spirited people who are kindred to your own care and concern for our lakes and streams,” says a 2013 Institute graduate. “Spending time with such kindred spirits is energizing, motivating, and promotes hope and courage and stamina to keep trying to be a positive force for our beautiful Michigan Water-Wonderland. And an added bonus is spending time at the delightful locations of the meetings. It is balm to a nature lover’s soul and a true educational retreat.”

Past participants have included natural resource agency staff, lake association and non-profit orBindu and Studentganization leaders, natural resources students, drain commissioners, educators, and interested citizens.  Today, nearly 100 Institute alumni are hard at work for Michigan’s lakes and streams in a variety of ways, such as leading lake associations, working within state and local natural resource agencies, serving on planning commissions, and monitoring water quality.

Make plans to be a part of the Class of 2015!  The first session will take place May 15-16 at the DNR’s Ralph A. MacMullan (RAM) Conference Center on Higgins Lake.  The second session will be held July 31 – August 1 at Kellogg Biological Station (KBS) near Kalamazoo. The final one-day session, including the Poster Symposium and Graduation, will take place in October in the Lansing area. The application deadline is March 30, 2015. Tuition for the 2015 Institute is $375, and includes all instruction, materials, meals, field trips, boats, and overnight lodging at the RAM Center and KBS. Limited scholarships are available.

For application forms and more information about the 2015 Institute, visit the website: http://goo.gl/zec62q, or visit MSU Extension (http://msue.anr.msu.edu) and search for “LSLI”. You can also contact  the Institute Director, Dr. Jo Latimore, at MSU (latimor1@msu.edu or 517-432-1491).

To download a 2015 Lake and Stream Leaders Institute event flyer, click here



Proposed Legislation Would Allow Local Units of Government to Collect Fees at Some Boat Launch Facilities

December 8, 2014 20:13

In an effort to authorize local units of government to impose “fees for activities such as prevention, control or eradication of aquatic invasive species, using a boat launch or a boat washing station, or parking a motor vehicle and trailer used to haul a boat”, Michigan State Senator Tom Casperson (Escanaba) will re-introduce Senate Bill 1091 in the new session of the state legislature which will begin in early January 2015.

The proposed legislation would authorize local units of government to pass ordinances to collect boat launching fees at municipality and township owned public boat launch facilities. Launch fees under the new law could not exceed $10.00 per day for each boat or $45.00 per boat annually.  Fees collected under local ordinances would be restricted to funding activities associated with the prevention, control or eradication of aquatic invasive species. Lake managers, pesticide applicators or others engaged in aquatic invasive species management would be exempt from paying the local launch fees. The proposed legislation would not allow local governments to impose fees at Michigan Department of Natural Resources owned public boat launch facilities.

To download and read Senate Bill 1091 as it was originally introduced in the State Senate, click here….



Marrone Bio-Innovations Receives EPA Approval for Zequanox Use in Open Waters

December 4, 2014 20:01

Michigan Department of Environmental Quality Approval Pending Final Review Outcome

After many years of intensive research and field testing, Marrone Bio-Innovations has gained United States Environmental Protection Agency (EPA) approval for the use of Zequanox, a bacteria-based molluscicide, in open waters to combat infestations of invasive zebra and quagga mussels in lakes, rivers, and other open bodies of water.

Zequanox, the only selective and aquatic ecosystem compatible molluscicide in existence, was first approved by the EPA in 2012 for invasive mussel control in enclosed hydro-systems and infrastructure for energy producers and manufacturing companies. Final EPA approval allows Marrone Bio-Innovations, pending Michigan Department of Environmental Quality authorization, to offer Zequanox to lake managers in Michigan as a potentially effective solution to control existing populations of invasive mussels. Zequanox is formulated from a strain of the bacteria know as Pseudomonas fluorescens.  The naturally occurring bacteria has been utilized by the agricultural community for decades to help prevent fruit crops from freezing.

Invasive mussel populations are now prevalent in major waterways throughout the United States, including the Great Lakes Region as well as the Mississippi, Arkansas, Tennessee and Colorado rivers. Lake Huron and Lake Michigan are known to host astronomical populations of quagga mussels which are capable of surviving and reproducing in depths of up to 100 meters. The rapidly reproducing mussels have had a significant economic and environmental impact on recreational water use throughout the Great Lakes region. Colonies of invasive zebra and quagga mussels are known to negatively impact native mussel populations and disrupt aquatic food chains.  Invasive zebra and quagga mussels first appeared in Michigan waters in the late 1980’s and have since caused hundreds of millions of dollars in damage to water related infrastructure.

A successful test of Zequanox involving an early stage infestation of zebra mussels was conducted earlier this fall by Marrone Bio-Innovations and the Minnesota Department of Natural Resources in Christmas Lake near Shorewood, Minnesota. The Michigan Department of Environmental Quality is expected to finish its review of Zequanox during the spring of 2015, pending the completion of a pilot study in Lake Erie by Marrone Bio-Innovations as well as the results of a U.S. Geological Survey (USGS) study “Evaluating the Safety and Efficacy of Pseudomonas fluorescens Strain CL145A to Control Dreissenid Mussels”.

For more information regarding the product, visit the company’s product dedicated web page at http://www.marronebioinnovations.com/products/brand/zequanox/ .

To view the USGS study information go to http://cida.usgs.gov/glri/projects/invasive_species/zm_control.html

 



You Cannot Give It Away…

November 20, 2014 14:37

Clifford H. Bloom, Esq.
Bloom Sluggett Morgan, PC
Grand Rapids, Michigan
www.bsmlawpc.com

Riparians are often troubled by lake access easements on their property or adjacent waterfront dedicated road ends, parks, walks, and alleys (whether dedicated to the public or just the owners of lots within the plat involved).  Naturally, many riparians would like to rid themselves of those pesky lake access properties, as they often cause huge headaches for adjoining and nearby riparian landowners.

I have often heard riparians say that they can get rid of an easement or dedicated lake access site by simply obtaining a quit-claim deed from the local municipality (either a city, village or township), the county or the local county road commission.  And, in almost all cases, that is incorrect.

Some lakefront riparian properties are bound by lake access easements that allow either members of the public, the owners of backlots within the plat or the owners of other properties to use the riparian land to access the lake.  Unfortunately, in almost all cases, it is not possible to extinguish or terminate such easements.  Such easements are almost never extinguished or abandoned due to mere nonuse.  See Feldman v Monroe Twp Bd, 51 Mich App 752 (1974) and Choals v Plummer, 353 Mich 64 (1958).  And, in general, courts will not extinguish such easements.  In a few cases, the riparian property owner can extinguish an easement by adverse possession if it is a private easement and the easement has been fully blocked by fencing, a building or other obstruction for more than fifteen years.  However, if the easement benefits a governmental unit or the public, adverse possession does not apply, so blocking the easement cannot extinguish it, even after fifteen years.  If the riparian landowner believes that the easement is being misused, court action can definitively determine what uses the easement beneficiary or beneficiaries can make of the easement, but the court will not terminate the easement absent highly unusual circumstances.

Many lots on or adjacent to lakes in Michigan are located in plats.  A plat is a formal process for the creation of lots and development of property.  Please see my earlier article that discusses plats in detail in the Winter 2013 issue of The Michigan Riparian Magazine.  Quite often, plats contain road ends, parks, alleys or walkways at or along the lakefront that are either dedicated to the use of all lot owners within the plat or the public.  As with non-plat easements, such lake access sites almost never go away due to non-use.  As with private easements, a lot owner can potentially extinguish some or all of a dedicated lake access site by blockage under adverse possession, but not if the site was dedicated to the public.

Governmental units cannot extinguish dedicated properties (and transfer title thereto to adjoining property owners) simply via quit-claim deeds to adjoining landowners.  The only way in Michigan to extinguish a dedicated property (and have the title thereto go unencumbered to the adjoining lot owners) is pursuant to a formal circuit court plat vacation lawsuit under MCL 560.221 et seq.  Such lawsuits tend to be expensive and complex as the requesting party must join in the lawsuit not only the local unit of government, but also the State of Michigan, the local road commission or authority, the country drain commissioner, and every property owner within the plat.  Finally, the court has the discretion of whether to vacate (i.e., extinguish) the plat-dedicated item.  Even if the property owner who brought the lawsuit to extinguish the dedicated site is successful, that landowner must then pay for a sometimes expensive replat of the area at issue.

As with so many myths associated with riparian rights or the waterfront, the old canard that easements and platted sites can be extinguished simply by a local government deeding the property to an adjoining property owner or owners is a falsehood.



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