It’s important to know where to drop lines (legally)

August 24, 2009
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After growing up a die-hard Ohio State fan in the middle of Ohio, I must confess that admitting any of Michigan's virtues is a tall task. However, one thing Michigan has going for it is an abundance of fantastic rivers, streams, lakes and beaches.

Most of my experiences on the water have been enjoyable, but occasionally I run into "the rowdy group." Anyone who has kayaked the Muskegon River has met this group: loud, annoying and drinking what are probably the first 20 beers of their lives.

I have no problem with that, but when trash starts getting thrown into the river, I get upset. One of my friend's favorite lecturing points when he catches someone littering or otherwise disrespecting the water is: "This is your river, this is my river, this is his river, so let's keep it clean."

A recent trip down the Muskegon, with my experience in law school and working for a law firm as a backdrop, made me wonder: Whose river is this, legally? More specifically, who owns the bottomland under the water?  How much do they own? What if it was an inland lake? Or even Lake Michigan?

As it turns out, like everything else with regard to the law: "It just depends."

Who owns river bottomlands?

Navigable rivers in Michigan are governed by federal law. For a river to be considered navigable, it must be usable as a route by the public. This is not a demanding standard. Even rivers that can only support small canoes are probably considered navigable. The river's depth, flow and width are not considered when determining navigability, and neither is the presence of waterfalls or rapids.

If a river is navigable, the state owns — in public trust — the water and all of the bottomland underneath. Bottomland means the land area of an inland lake or stream that lies below the ordinary high-water mark, which may or may not be covered by water. The state only owns the bottomland up to the high-water mark. The land on the opposite side is owned by the landowner whose property touches the river.

The exact location of a high-water mark is a bit of a mystery. Courts across the country have spent years and millions of dollars litigating how to determine the exact location of the high-water mark. These efforts have yielded the conclusion that it's impossible to determine on a per se basis.

So if you are floating down the river and wondering where you can stop legally without trespassing, a good rule of thumb is anywhere along the bank where water is flowing, has flowed or probably will flow, absent flooding or unusual circumstances.

Like everything else on the water, just use your head.

Who owns inland lake bottomlands?

The rules surrounding inland lakes are a lot different. The bottomlands are owned by the adjacent property owners all the way to the center of the lake. This is true regardless of the lake's size.

An adjacent property owner or "riparian" owner has certain rights and privileges to the bottomlands subject only to a reasonableness standard. What is reasonable is a bit cloudy but it is likely somewhere between building a normal-sized dock and constructing a fake nuclear missile silo underneath the lake, James Bond style.

With the exception of completely private lakes that are unconnected to other bodies of water, the water on an inland lake is available to the public.

The public's right of navigability supersedes any riparian ownership of the bottomlands. They can fish, water ski, boat and generally do whatever they wish as long as it is otherwise legal. They may even temporarily anchor their boats to or temporarily wade across the bottomlands of another. The public may not, however, anchor permanently or indefinitely to the bottom lands of another or otherwise wade or hangout indefinitely in the bottomlands without permission.

Who owns Great Lakes bottomlands?

In a continuing demonstration of predictable unpredictability, Lake Michigan and the other Great Lakes are governed by yet another set of rules. The bottomlands of Lake Michigan are owned by the state, and the public is free to use the water and the bottomlands for whatever non-destructive activity they wish.

The adjacent landowners' property extends all the way to the high-water mark. The exact location of the high-water mark is not really any better defined for Lake Michigan than it is for rivers.

The ownership rights to the land between the water's edge and the high-water mark have been the topic of much discussion in Michigan for years. A recent Supreme Court decision has caused landowners from St. Joseph to Mackinac City to dread the inevitable appearance of low tide.

The Michigan Supreme Court in 2005 decided that the public has an easement to anything lakeward of the high-water mark. The court gave the go-ahead for the public to walk anywhere they wish as long as they remain on the lake side of the mark.

The Court did not extend the rights of the public in this area to any activity other than walking. Thus, it is assumed that the Court is waiting for the paths of the ever-watchful lakefront homeowner and the vigilante four-wheeler to cross before they adjudicate exactly what rights to this land the public has.

Ironically, the majority of the law regarding riparian ownership of the water and the bottomlands is in line with the ideas of common sense and respect. Thus, a small helping of common sense on the water will probably go just as far as two years of law school in determining what is legal and what is not legal.

Jake Lombardo, who attends Notre Dame Law School, is a summer associate with the law firm of Varnum LLP.

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