Know your waterfront property rights
Summer is on the horizon. In Michigan, thoughts may soon turn to spending time at your waterfront cottage, ready to enjoy a season on the beach and water.
Often, you will find yourself sharing that beach, and the adjacent lake, stream or river, with your neighbors or the public. So, it’s important to know what your rights are as the owner of waterfront property and what rights your neighbors and the public might have to share use of “your” beach or shore and the neighboring body of water.
In Michigan, different rules apply depending upon whether your waterfront property is located on the Great Lakes — Michigan, Huron, Superior and Erie — or on an inland lake, stream or river. The state of Michigan owns and controls the Great Lakes “bottomlands,” the land beneath the water to the water’s edge. A private Great Lakes waterfront owner only owns to the water’s edge, and that ownership is subject to the public’s right to walk along the beach between the water’s edge and the ordinary high water mark on the owner’s property.
While a private Great Lakes waterfront owner has full use of the beach to the water’s edge, because the state owns the bottomlands, the owner would need to obtain a lease from the state to build a permanent boathouse, dock or other structure on the bottomlands. In addition, the owner may use the lake to the same extent as any member of the public for recreational activities, such as swimming, boating and fishing.
Much different rules apply to privately owned waterfront property located on natural inland lakes, streams or rivers. An owner deeded inland waterfront land owns the exclusive use of the beach or shore included in the deed. Absent a recorded easement or other permission, neighbors and the public cannot walk along the beach. The owner can fence off the beach or shore and bar others from entering.
The inland waterfront property owner also is presumed to own any additions to the shore caused by accretion, as well as the adjacent submerged bottomlands to the center of the lake or centerline of the stream or river.
Visualize a round lake, with lines drawn from the two points where the property boundaries adjoin the lake, to the center of the lake, creating a pie-shaped wedge of owned bottomlands. This presumption can be overcome if the owners of all the lands surrounding the body of water agree to establish different boundaries for ownership of the bottomlands. Ownership of the bottomlands carries with it the right to place a boathouse or dock, permanently anchor a boat or raft, remove sand or gravel, and explore for and mine oil, gas and minerals.
On inland lakes, streams and rivers, the neighboring property owners have common rights to use the entire surface of the body of water itself. They can swim, wade, fish, hunt, trap, ice skate or gather ice on the entire surface of the lake, stream or river, as long as they don’t unreasonably interfere with the same rights of other adjacent property owners to do the same. They also can make reasonable use of the water itself on their adjacent property, for such purposes as irrigating a lawn or garden.
If the inland lake, stream or river is “navigable,” then a private waterfront owner’s right is subject to the right of the public to use it for fishing and passage by boats, waders, ice skaters and floating logs. In fact, in a relic from Michigan’s historical timber industry, courts determine whether a body of water is navigable by asking whether it is capable of floating logs to market. This means that a body of water normally too shallow to float logs is not navigable, and neither is a “dead end” lake without navigable inlets and outlets. If the lake, stream or river is navigable, then the neighboring property owners must exercise their rights to use its bottomlands and surface in a way that doesn’t impede navigation. For example, any docks may not extend so far out that they block the passage of boats.
Waterfront property rights can be confusing and complex. Know your rights, so you can enjoy them and be a good neighbor.
Bill Hall is a partner with the law firm of Warner Norcross & Judd, where he often assists in the planning, acquisition and development of waterfront commercial and residential properties. He can be reached at email@example.com.