Where to fish legally Common sense goes a long way

June 18, 2012
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Summer in Michigan brings two of my favorite pastimes: baseball and golf. Unfortunately, with the Tigers slumping their way into the cellar of the AL Central, and my golf game continuing a 20-year slump of its own, this summer has been less than stellar thus far. 

Accordingly, I have decided to focus more on an activity I do not have to be good at to enjoy: fishing.

Fishing has become much more enjoyable as I have gotten a little older. I suspect this is because, as I have aged, my friends have become more successful. As such, they now own things like "boats" and live on "lakes."

A recent trip out to Bostwick Lake in search of bass and pike, together with my experience as a practicing attorney in a state full of great and not-so-great lakes, got me thinking: Who actually owns all of this?

More specifically, who owns the bottomland under the water? How much do they own? What rights does the public have here?

What if this were the Grand River? Or even Lake Michigan? Does that matter, and why?

As it turns out, like most legal topics, "it just depends."

Who owns inland lake bottomlands?

The rules surrounding inland lakes are a lot different than those governing rivers and Lake Michigan. The "bottomlands," meaning lands below the high water mark, are owned by the adjacent property owners all the way to the center of the lake. 

An adjacent property owner or "riparian" owner has certain rights and privileges to the bottomlands, as long as the use of the bottomlands is reasonable. 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 beneath the lake, James Bond style.

The public's right of navigability supersedes any riparian ownership of the bottomlands. We can fish, water ski, boat, and generally do whatever we wish as long as it is otherwise legal.

The public may even temporarily anchor boats to, or temporarily wade across, the bottomlands of another. They may not, however, anchor permanently or indefinitely to the bottomlands of another, or otherwise wade or hang out indefinitely in the bottomlands without permission.

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.

If a river is navigable, the state owns, in public trust, the water and all of the bottomland underneath, 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 also a bit of a mystery. Courts nationwide have spent years and millions of dollars litigating how to determine the exact location of the high water mark. These countless efforts have yielded the conclusion that it's just 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.

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 discussed above.

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 2005 Supreme Court decision has caused landowners to dread the 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 high water mark, regardless of whether the tide was in or out.

Ironically enough, the Supreme Court's decision, along with 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 dose of common sense on the water will probably go just as far as a formal legal education in determining what is legal and what is not legal.

Jake Lombardo is an attorney with the law firm of Varnum LLP.

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