McCardel v. Smolen

250 N.W.2d 496, 71 Mich. App. 560, 1976 Mich. App. LEXIS 985
CourtMichigan Court of Appeals
DecidedOctober 18, 1976
DocketDocket 22696
StatusPublished
Cited by6 cases

This text of 250 N.W.2d 496 (McCardel v. Smolen) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCardel v. Smolen, 250 N.W.2d 496, 71 Mich. App. 560, 1976 Mich. App. LEXIS 985 (Mich. Ct. App. 1976).

Opinion

Allen, P. J.

This appeal brings to the Court for the fourth time a dispute over beach access rights in platted Higgins Lake subdivisions. All of the litigants own property in the "First Addition” to Michigan Central Park Subdivision. 1 Lots in the subdivision are separated from the waters of Higgins Lake by a strip of land designated on the plat as Michigan Central Park Boulevard. The boulevard was dedicated to the county, ostensibly as a public street. But the "boulevard” is actually nothing more than undeveloped beach property. We are asked to decide who owns the riparian rights in the boulevard frontage and to define those rights.

The plaintiffs all own "front lots”, i.e., lots in the first row of lots on the landward side of the disputed strip. The defendants own "back lots”, i.e., lots which are one or more rows removed from the beach. The trial judge ruled that the plaintiff front lot owners also owned the riparian rights incident to the boulevard property because no private property lies between their lots and the *563 lake. The judge rejected the defendants’ theory that the riparian rights belong to the public because the boulevard is owned by the county. 2 The lower court’s injunctive order barred the defendants from:

" * * * trespassing upon the riparian rights of the Plaintiffs and, more specifically, from lounging, picnicking, bathing, swimming, launching boats, erecting or maintaining docks and boat hoists, anchoring boats or similar activities, in front of the premises owned by the Plaintiffs * * *

The injunctive order was directed only against defendants and others acting in concert with them. But the rejection of their defense based on rights held as members of the general public has led the Attorney General to intervene on appeal as an amicus curiae in order to protect what he describes as the public’s "right of navigation upon or over the waters of Higgins Lake and the lands lying beneath such waters”. 3

The plaintiffs have long treated the disputed strip as an extension of their own lots, thereby creating the false impression that their property descriptions included the frontage. At the same time, the defendants have always used the property as a beach and, like the plaintiffs, have in *564 stalled docks and boat hoists along the shore. The parties and their predecessors coexisted peacefully until a personal quarrel led to the present lawsuit.

Who owns the riparian rights?

The plaintiff front lot owners also own the riparian rights in the boulevard frontage. That issue was resolved in their favor by three previous decisions of this Court, all of which involved Higgins Lake property. Michigan Central Park Association 4 v Roscommon County Road Commission, 2 Mich App 192; 139 NW2d 333 (1966), Sheridan Drive Association v Woodlawn Backproperty Owners Association, 29 Mich App 64; 185 NW2d 107 (1970), and Kempf v Ellixson, 69 Mich App 339; 244 NW2d 476 (1976). Each of those cases relied on Croucher v Wooster, 271 Mich 337; 260 NW 739 (1935). The cited cases support the trial judge’s ruling that only the plaintiffs have riparian rights in the boulevard frontage.

The defendants ask us to distinguish Croucher because the government in that case had only a highway easement, whereas Roscommon County is said to have a fee simple title to the boulevard property involved in this case under the terms of the plat act in effect when the subdivision plat was recorded. 5 1887 PA 309. Actually, that statute provided that the government would take a fee "in trust to and for the uses and purposes therein [the plat] designated, and for no other use or purpose whatever”. Even if a distinction is possible we will not adopt it. There are problems with the *565 Croucher rule, but an exception vesting the riparian rights in the public would create problems of its own — including the need to precisely define the underlying title in every case. Croucher at least offers uniformity, a more attractive feature than any offered by the defendants’ proposed distinction.

Consequences of riparian ownership

In the preceding section, we rejected the defendants’ proposed title-based distinction in favor of a uniform rule for determining ownership of the riparian rights. But we are favorably impressed by their related argument that the earlier opinions have failed to explore the consequences of a finding that one party or the other owns the riparian rights. Ownership of those rights has usually been equated with outright ownership of the lake frontage; witness the injunctive order in the present case which effectively gives the plaintiffs full control over land which even they concede is public property. That equation oversimplifies the problem. Riparian rights are only a small piece of the collection of rights which constitute outright ownership of land. They generally involve direct use of the water or uses of the land which facilitate use of the water. 7 Clark, Waters & Water Rights, Glossary, pp 309-310; National Water Commission, A Summary-Digest of State Water Laws, Michigan, § 3.2, pp 401-403. The present case is unusual because the owner of the riparian rights does not own the land to which those rights would normally attach. Blurring the distinction between riparian rights and other ownership rights ordinarily will not affect the outcome of a dispute because the same person owns both. But here the plaintiffs own the riparian rights and nothing *566 more. The trial court’s injunctive order must be examined with that limitation in mind.

The trial judge ruled that the plaintiffs’ riparian rights included the right to effectively bar the defendants from the boulevard and the water in front of the boulevard. On appeal, the defendants and the Attorney General have launched a two-pronged attack designed to reduce the scope of the injunctive order. To paraphrase Paul Revere, one comes by land, the other by sea.

Assuming that Higgins Lake is navigable, 6 the Attorney General argues that the trial judge’s injunction improperly restricted the public’s navigation rights. The riparian owner of the shore of a navigable inland lake owns the bottom of the lake to the center. Hall v Wantz, 336 Mich 112; 57 NW2d 462 (1953). But that title is subordinate to the public’s navigation rights if the public has lawful means of access to the lake. Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926). Recognized incidents of the navigational servitude include boating, fishing, wading and swimming. Collins v Gerhardt, supra, 23 Michigan Law & Practice, Waters & Water Courses, § 53, p 315.

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Bluebook (online)
250 N.W.2d 496, 71 Mich. App. 560, 1976 Mich. App. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccardel-v-smolen-michctapp-1976.