Law Enforcement Division
PUBLIC RIGHTS ON
Note: This was written in 1997. A recent Michigan Supreme Court decision may affect some things.
The State of
The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.
The State is compelled to act to uphold and advance this constitutional provision.
INTRODUCTION
The State of
The following document is offered as a guide
to how water rights came to be and the current state of the law. This
information has been compiled for convenience in answering common questions
regarding water law in the State of
The field of water law is complex and
develops periodically through both legislative and judicial action. This manual
is not, nor is it meant to be, an exhaustive or conclusive evaluation of the
issue. This material is designed to provide the reader with a working knowledge
and understanding of this complicated yet interesting area of
This material was first compiled as Law
Enforcement Division Report No. 9. The authors were Mr. Frank Opolka of the Law
Enforcement Division and Mr. John F. Leone, a student intern from the
The material in this report related to the
status of water law in
THE BIRTH AND HISTORICAL DEVELOPMENT OF WATER RIGHTS
Primitive man's existence was primarily dependent upon game and fish. From the beginning of recorded history, kings and sovereigns, being the strongest power in the land, owned the game and fish as they owned all property. They were their own enforcement agents in protecting their rights.
When William the Conqueror imposed his rule
upon
With the American Revolution, the colonies
confiscated the English crown property and many crown grants. By the Acts of
Confederation, the ownership of land was ceded to the Federal Government.
At the close of the Revolutionary War,
certain crown grants, including a few from the King of France, were recognized
and patents were issued by the Federal Government. Grants of land were made as
military bounty warrants to soldiers and sailors. The
Game and fish, being migratory in their habits, disregard property boundaries and pass over the lands of many owners. If all land were owned by the state, the problem would be simple.
The landowner is conceded to have exclusive rights in the taking of game, either by hunting or trapping, upon his or her own property and in open seasons. This right, being a property right originating in ownership of land, may be sold or transferred. Thus, one may own the land but sell the right to take game. A parallel is the sale of mineral rights by the landowner who may continue to occupy and use the land, while mining by others is in progress.
In
Under the English system, fishing rights
could be a common right of all and also limited or restricted, as the privilege
was acquired by prescription, grant or land ownership. Thus, the English common
law does not govern the taking of fish as it governs the taking of game. Water
is like air, owned by no one and yet owned by all. Therefore, no one can claim
an exclusive right to take fish on the basis of water ownership. In
Under the law of this state, although the riparian owner on an inland lake or stream owns the soil under the water, he does not own the navigable water, and he does not own the fish. So far as they are capable of ownership, they belong to the state for the benefit of the people.
By judicial decision in 1860, the title to
the beds of inland navigable waters, both lakes and streams, was declared to be
in the riparian owners. The title, allowed to be taken by the riparian owners,
was subordinate to public rights, including the public right of fishing. In
contrast, the title to bottomlands of the
For purpose of clarification, a riparian owner is simply one who owns land or property abutting water. Actually, a riparian is one who owns land contiguous to a river or stream, and one who owns lands contiguous to a lake is properly called a littoral owner. But in common practice, both are referred to as riparians.
The question is often asked: How did the
State of
WHAT ARE PUBLIC WATERS?
THE "FLOATING LOG" TEST AND KEY DEFINITIONS
It should be emphasized here that the terms "public" and "navigable" are synonymous; likewise are the terms "private" and "non-navigable." This is due to the fact that since 1787, prior to Michigan's admission to the Union, applicable law has stated as "public" all waters that are navigable and, as "private" all waters that are "non-navigable." Accordingly, the legal test used to determine "navigability" is the crux of the matter. The fact that a water is boatable, does not necessarily, in the opinion of the courts, make it navigable.
Public and private rights are controversial
issues that have historically been determined by the courts.
Pursuant to the language of judicial decisions are the following key definitions:
A. Navigable
A navigable inland lake is any lake which is
accessible to the public via publicly-owned lands, waters or highways contiguous
thereto, or via the bed of a navigable stream, and which is reasonably capable
of supporting a beneficial public interest, such as navigation, fishing,
hunting, swimming or other lawful purposes inherently belonging to the people. Bauman
v Barendregt, 251
In this state, natural waters have been
divided into two classes: (1) the
B. Navigable Inland Stream:
A navigable inland stream is (1) any stream
declared navigable by the Michigan Supreme Court; (2) any stream included within
the navigable waters of the United States by the U.S. Army Engineers for
administration of the laws enacted by Congress for the protection and
preservation of the navigable waters of the United States; (3) any stream which
floated logs during the lumbering days, or a stream of sufficient capacity for
the floating of logs in the condition which it generally appears by nature,
notwithstanding there may be times when it becomes too dry or shallow for that
purpose; (4) any stream having an average flow of approximately 41 cubic feet
per second, an average width of some 30 feet, an average depth of about one
foot, capacity of floatage during spring seasonal periods of high water limited
to loose logs, ties and similar products, used for fishing by the public for an
extended period of time, and stocked with fish by the state; (5) any stream
which has been or is susceptible to navigation by boats for purposes of commerce
or travel; (6) all streams meandered by the General Land Office Survey in the
mid 1800's. Moore v Sanborne, 2 Mich. 520 (1853); Thunder Bay
River Booming Co. v Speechly, 31 Mich. 335 (1875); Stofflet v Estes,
104 Mich. 208; 62 NW 347 (1895); Cole v Dooley, 137 Mich. 419;100
NW 561 (1904); Sterling v Jackson, 69 Mich. 488; 37 NW 845 (1888);
Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Rushton ex
rel Hoffmaster v Taggart, 306 Mich. 432; 11 NW2d 193 (1943); Diana
Shooting Club v Husting, 156 Wis. 261; 145 NW 816 (1914); Muench
v Public
The right to public use of navigable lakes and streams includes the right of trespass upon the submerged soil, but does not extend to the uplands of riparian owners while in such waters, or in entering or departing from them.
It follows, therefore, that the numerous citations supporting the test of navigability on rivers is also applicable to lakes. The determination of navigability and non-navigability is a civil process.
In a 1968 expression of the Michigan Supreme Court on the question of navigability, In re Martiny Lakes Project, 381 Mich. 180; 160 NW2d 909 (1968), the import of Justice Black's majority opinion stated that navigable waters are divided into two distinct classes; namely those navigable in a qualified sense and those unqualifiedly navigable. The court held that streams navigable in a qualified sense were "small streams which by common law belong to the public for the purpose of floatation and fishing" as compared to larger streams which are navigable in the more enlarged meaning of the term, unqualifiedly navigable, i.e., streams which in their natural condition are adapted to valuable boat or vessel navigation (vessels of 10 or more gross tons).
Many are confused concerning the true interpretation of this decision. Justice Black was subjected to considerable unjustified abuse and criticism, but his rationale is deemed correct and in keeping with earlier court decisions, viz., Moore v Sanborne, Rushton ex rel Hoffmaster v Taggart, Collins v Gerhardt supra, and Giddings v Rogalewski, 192 Mich. 319; 158 NW 951 (1916).
Some years ago, the United States District Court in Grand Rapids, in the celebrated Pine River, Osceola County case Ne-Bo-Shone Association, Inc. v Hogarth, 7 F. Supp. 885 (W.D. Mich. 1934), established a new precedent. Judge Raymond stated:
It is difficult to see why the right to navigate should include, as an incident thereto, the right to take fish. It is the view of this court that the right to take fish is not an incident of navigation, but a right arising from the fact that the waters, in which the right is claimed, are public waters. Both rights arise from the fact that the waters are public, not private. The rights coexist. Neither finds its source in the other.
This opinion may have forestalled many cases of dispute which otherwise would later have reached the courts. However, until this precedent is more firmly established, the rule requiring navigability, which has long been accepted, would seem to be the surest determination of the public or private character of a lake or stream.
Those watercourses located within
THE BLURRED DEFINITION OF NAVIGABILITY
THE RISE AND FALL OF THE RECREATIONAL USE TEST
The greatest controversy today in defining
"navigability" is whether recreational uses should be a determining
factor. Unfortunately,
The Michigan Court of Appeals in Kelley
v Hallden, supra, concluded that recreational uses alone could
support a finding of navigability. The Court affirmed a trial court's judgment
enjoining landowners from interfering with the passage of boaters and waders on
the
The question before the court was whether the
The court in their deliberations rejected the
former definitions of navigability fixed by reference to activities, such as log
floating, which no longer play a significant role in the utilization of
Michigan's waterways, in favor of a concept that the navigability of a stream or
river should depend upon the uses to which waterways are currently susceptible.
This latter concept is supported by
The court did not dwell on the distinction
between strictly navigable and floatable streams, recognized in
The broad underlying principle of
The Michigan Court of Appeals concluded by stating: "We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft." Hallden at 181. "Capable of being navigated by oar" is deemed to include navigation by canoe as well as by rowboat.
Had it not been subsequently overruled, Kelley
v Hallden would have established a landmark decision in the annals of
navigability litigation in
Bott v Natural Resources Commission, Nicholas v McDaniel,
and Attorney General ex rel Department of Natural Resources v Nicholas,
415 Mich. 45 (1982) were heard together and argued before the Supreme Court in
January of 1980. It was almost three years before an opinion was issued on
In the Bott case, the Supreme Court forwarded three main premises:
1. Changes in property law should be avoided whenever possible. Countless acres have been purchased and great expenditures have gone to improve properties in reliance upon property rules of law "fully established" and maintained for over sixty years.
2. Adopting a recreational use test would result in no "significant" addition of waterways subject to public use but would subject certain otherwise private waters not only to the "quiet" sport of fishing but also the "intrusive and jarring" activity of boating and water recreation. Bott at 66. These activities may render the property unfit for the private landowners use as a refuge and retreat as well as decrease the private character of the property and thus its commercial value. Such an imbalance of public benefit and private burden amounts to a taking by the State without just compensation, especially in light of the long enforced property laws that have induced the extensive reliance of these otherwise private riparian landowners.
3. "The importance that society attaches
to the various public values, like the importance society attaches to the need
for expanded recreational uses, cannot be gauged by this court with
accuracy."
Thus, the recreational use test adopted in Kelley v Hallden has been overruled by the Bott cases and the commercial use/log floatation test continues as the controlling legal test of navigability.
THE PROBLEM (AND SOLUTION) AS VIEWED BY THE DEPARTMENT OF NATURAL RESOURCES
There is presently a great deal of uncertainty regarding the public or private character of most of the State's streams, particularly the smaller streams. This is due to the fact that the old, but current, test by which streams are established as public (the floatability of logs) is fast becoming unprovable. The old rivermen are gone and can no longer testify that these streams were so used. Although the public need that created this public right may have been floatation of logs, a different need has arisen over the past sixty years. There should now be written into the law a means of determining the public/private character of a stream without need for judicial determination every time a dispute or the need to make an administrative ruling arises.
A statutory determination of a
"navigable stream" is urgently needed to clarify the fishing, boating
and recreational rights of the public, as well as provide criteria of
navigability, and direction to state agencies in the implementation of existing
laws and regulations. The State and the
The public or private status of a stream to date has been determined only by judicial action. Streams where such determinations have been made represent only an infinitesimal number of the state's total streams. No state agency can, under present conditions, satisfactorily respond to public inquiry as to their rights pertaining to streams, except in the limited instances where litigation has resulted in Supreme Court decisions declaring the stream public or private. Most of this problem could be resolved through legislative actions.
Enactment of a statutory definition would augment both 1994 PA 451, Part 315, Dam Safety, MCL 324.31501 et seq; and 1994 PA 451, Part 301, Inland Lakes and Streams, MCL 324.30101 et seq; and: (1) preclude costly and time-consuming litigation to ascertain the public or private character of streams; (2) expedite control of unauthorized dams, dredgings and diversions which (a) despoil stream habitat and fishing by raising water temperatures and siltation, (b) block migration of spawning fish, (c) deny lawful passage to wading and boating fishermen, and (d) diminish the quality and quantity of water delivered to downstream riparians; (3) permit ready removal of fences across navigable streams intended to prevent fishing access; (4) clarify and permit dissemination to the public, upon inquiry, a listing of those streams in which they have the right of fishing and boating; and (5) last, but not least, clarify, and thus protect, the vested property rights of landowners in non-navigable streams of which their control is now uncertain due to absence of adequate standards.
WHAT HAS BEEN DONE BY THE DEPARTMENT OF NATURAL RESOURCES?
In 1969, the DNR proposed legislation to statutorily define a navigable stream. The bill, H.B. 2377, was introduced by Representatives Snyder, Anderson, Smit, et al. The bill as amended in the Committee on Marine Affairs read:
WHENEVER THE PHRASE "NAVIGABLE STREAM" OR "PUBLIC STREAM" IS USED IN ANY EXISTING OR FUTURE STATUTE, THE TERM SHALL MEAN ANY WATERCOURSE WHICH IS NOW OR HAS IN THE PAST PROVIDED, OR IS CAPABLE OF EITHER OF THE FOLLOWING:
(A) TRANSPORTING ANY BOAT, CANOE OR CRAFT OF ANY KIND FOR ANY PURPOSE WITH 1 OR MORE PERSONS ABOARD,
(B) FLOATING OR TRANSPORTING LOGS,
(C) PROVIDING A PUBLIC FISHERY WHEN THE EXERCISE OF SUCH IS ACCOMPLISHED WITHOUT TRESPASS UPON THE UPLANDS OR RIPARIAN OWNERS.
A WATERCOURSE, OTHERWISE NAVIGABLE OR PUBLIC, SHALL NOT BE BARRED FROM THIS CLASSIFICATION NOTWITHSTANDING THERE MAY BE NATURAL OR ARTIFICIAL OBSTRUCTIONS WITHIN ITS REACHES WHICH NECESSITATE PORTAGES AROUND SUCH OBSTRUCTIONS.
The bill passed the House on
Our reasons for deeming the DNR proposed definition as reasonable, constitutional and not offensive to those vested rights which riparians have in non-navigable streams:
The following arguments support definitions (A), (B) and (C), respectively, of our proposed definition.
(A) The Ordinance of 1787 is part of the law of the state because it was specifically incorporated into the laws of the state when the state was established and because it constituted a compact between the territory and outside jurisdictions that even statehood could not destroy.
Article IV of the Ordinance of 1787 provides:
"The navigable waters leading into the
It was framed without regard to the common
law rule as to what constituted navigable waters and designed to extend over all
streams capable of being used for any purpose of public utility.
It applied not only to ship and vessel
navigation, but more generally to the passage of canoes and bateaux, which were
then the chief means of conveyance.
The Ordinance of 1787 included with
"navigable waters," portages or carrying places connecting navigable
waters that were used by parties making long voyages in small boats by passing
from river to river. Lorman v Benson, supra. But it did not
dignify as a navigable water every little rill or brook whose waters finally
reached the
(B) The
The question of whether the public should be entitled to travel upon any given stream should consider relevant the question of whether the stream in its natural condition is able to transport a log, or is capable of sustaining travel by a customary mode of water transportation. The ability of a stream to transport a log was and should now be one of the yardsticks by which the character of a stream, whether public or private, is measured. Such streams were essentially our major highways, which no one had a right to block. They were streams that the people normally regarded as public and expected to be open to travel and other uses. This public expectation is still valid today and should be protected.
(C) In Rushton ex rel Hoffmaster v Taggart,
supra, the Supreme Court ruled the South Branch of the
[T]his stream is concededly not navigable in the sense of commercial travel by any boat. There is a difference of opinion among the witnesses as to whether it is practical to use a boat on it in fishing. Many portions of it would carry a boat occupied by a fisherman, in others the occupant would have to get out, wade and push the boat, and in still others he would have to lift or carry it over obstructions or shallow places, at least during periods of normal water height.
It would appear from the foregoing that the proposed statutory definition is reasonable, within rules established by the Supreme Court, and in accord with the basic principles set forth in the Sanborne case that streams with a capacity for use "to meet the needs and necessities of the people" are public streams, thus allowing establishment of navigability by proof of use other than the historical commercial uses.
COMMON QUESTIONS FROM THE PUBLIC
A. Rights of Riparians on Lakes
It is not physically possible to fairly divide the surface area of a lake among the riparian owners in proportion to their land ownership, or by projection of their property boundaries which reach the water at varying angles. The courts have held, therefore, that all riparian owners share an equal right to a reasonable use of the entire surface area of the lake. Owners can build docks and make other improvements to facilitate the use of their property and the exercise of their rights, insofar as such improvements do not encroach upon the same rights of other owners. For instance, an owner could be restrained by legal action of other owners from fencing off a portion of the lake; making earth fills which encroach upon the water area; or by extending docks or buildings an unreasonable distance into the lake.
B. Fishing in Lakes - Rights and Regulations
1.
Non-navigable lakes and streams have generally been construed to be private waters.
There are two kinds of private lakes. Those with a connection to public waters and those with no such connection. The fish in lakes having a connection with public waters by which fish can migrate to or from for any length of time at any season of the year are the property of the state and may be taken only in accordance with law. The riparian owner(s) may determine who shall fish but the fishing is regulated by law. Fish in private lakes, having no connection with public waters, are considered private property and not subject to legislative regulation which prescribes methods of fishing, closed seasons, creel limits and minimum sizes. However, persons possessing such fish off the premises from which taken, if contrary to law, could be subject to sanctions. Riparian owners may determine who shall or shall not fish in such a private lake. Those permitted to fish in any private lake enjoy the same rights and privileges as the permittee. Thus, in most all cases, the right to fish extends to the whole lake.
It is apparent, then, that the public has the right to fish in navigable lakes and streams if access is gained without trespass upon privately-owned property. However, the public can fish in non-navigable waters, too, but only with permission of the riparian owner.
(i) A private lake of less than 250 acres with no inlet or outlet and not planted with public fish.
The riparian owners of private lakes not connected with other lakes or streams by flow of water in any season of the year so that fish may pass, may, by reason of their constitutional rights, take fish therefrom without restraint from legislative enactment. They may keep the public from fishing in said lake. Their lessees and licensees have equal rights.
(ii) A private lake of less than 250 acres with no inlet or outlet, but planted with public fish.
MCL 324.45101; MSA 13A.45101 applies in this scenario. This section reads as follows:
No person shall take any fish from any of the inland waters of this State, within which fish shall be planted at the expense of the people of this State or of the government of the United States, after the passage of this act, from which waters the public is excluded from taking fish: Provided, however, that this act shall not apply to any small inland lakes covering less than two hundred and fifty (250) acres in which fish may be so planted without the written consent of the persons who together own in fee simple the submerged acreage.
Under the provisions of this Act if the riparian owners of the private lake have not given written consent to the planting of the fish by State or national authorities, the riparian owners may take fish without restraint from any legislative enactment. If they have given written consent to such planting, the riparian owners cannot fish in this lake unless the public is also allowed to fish therein.
(iii) A private lake of less than 250 acres with either inlet or outlet not planted with public fish.
The right of the public to fish in this lake depends on whether the inlet or outlet and the lake is navigable. The true test as to whether an inland lake or the inlet or outlet to same is navigable or not, is whether the waters under consideration are capable of being used by the public as thoroughfares or highways for purposes of commerce, trade and travel by affording a common passage for transportation and travel by the usual and ordinary modes of navigation.
(iv) A private lake of less than 250 acres, with either inlet or outlet, but planted with public fish.
The public has a right to fish in such a lake if it is navigable. If it is not navigable and the riparian owners have not given written consent to the planting of fish, the public may be excluded. If it is not navigable and the owners have given written consent to the planting of such fish in this lake and still exclude the public, then under the statute MCL 324.45101; MSA 13A.45101, the riparian owners cannot take fish themselves.
(v) A private lake of more than 250 acres with no inlet or outlet and not planted with public fish.
The riparian owners, their lessees and licensees, have exclusive rights of fishing on such a lake.
(vi) A private lake of more than 250 acres with no inlet or outlet but planted with public fish.
Under the provisions of MCL 324.45101; MSA 13A.45101, the riparian owners of a lake planted with public fish are prohibited from taking fish from such a lake if the public are excluded. This is true even though the riparian owners have not consented to the planting of public fish.
(vii) A private lake of more than 250 acres with either inlet or outlet not planted with public fish.
If this lake, and either the inlet or outlet, are navigable the public has a right to fish therein. If this lake and neither the inlet nor outlet are navigable, the public can be excluded therefrom by the riparian owners.
(viii) A private lake of more than 250 acres with either inlet or outlet but planted with public fish.
If this lake and either the inlet or outlet are navigable the public has a right to fish. If the inlet or outlet are non-navigable, the provisions of MCL 324.45101; MSA 13A.45101, apply and the riparian owners are prohibited from fishing in said lake if the public is excluded.
b. If the planting of fish in inland lakes from state or government hatcheries or at a public expense has any bearing on the classification of a lake or a determination of the public rights, what effect would any of the following have on the matter?
(i) If fish were planted by persons other than the riparian owners without the consent of such owners?
The planting of fish by persons other than
the riparian owners would not affect the rights of the riparian owners in either
case unless the planting was done at the expense of the State or of the
(ii) If the fish were planted by any riparian owner?
This would not affect the rights of the riparians, and the public could still be excluded.
(iii) If the fish were planted by any riparian owner who later disposes of his property to one who desires to treat the lake as a private lake, excluding the public from fishing thereon?
The lake would still be a private lake and the public could be excluded therefrom.
(iv) If fish were planted by a riparian owner which were supplied from State hatcheries upon application filed by such owner on which was stated the waters were open to public fishing but after building up the stock of fish in such lake, determined to treat the lake as a private lake and excluded the public therefrom?
In such case, the prohibitions of MCL 324.45101; MSA 13A.45101 would apply. The owner could exclude the public if the lake was less than 250 acres in extent, but if he did so, he would not be permitted to take fish therefrom himself.
c. Assuming that a lake has been meandered or is touched or bordered by a public highway, is this situation any different where property is acquired by the state or local government for highway purposes by deed through purchase, gift or exchange but not established by public usage? Would the public have the right to enter upon the bordering waters as one of the riparian owners?
In the case of Bawd v Willetts, 197 Mich. 512; 163 NW 993 (1917), a lake of 100 acres was entirely surrounded by a public highway so that the public could step into the waters of the lake or into a boat upon the surface of the lake from the highway, but inasmuch as the lake was not a public, navigable body of water, it was held that the public could be excluded therefrom. The court said:
"They can no more enter without permission the portions of the premises covered by water than they can invade the uplands of the riparian owners."
This doctrine was approved in Putnam v
Kinney, 248
d. Referring to MCL 324.45301 et seq.; MSA 13A.45301et seq. (ACT 451, PA 1994) [Fishing With Hook and Line] is the test of navigability as applied in Putnam v Kinney, supra, applicable to all the lakes of the state where the only navigation is solely by small boats engaged in fishing or other pleasure on such waters?
The test of navigability is the same in all
cases. The definition followed in Putnam v Kinney, Collins
v Gerhardt, Giddings v Rogalewski,
e. Has the public a right to enter upon inland lakes from tributary streams against the wishes of the riparian owner or owners, if such a stream is navigable as applied in the Collins v Gerhardt case?
The public would have the right to enter the inland lake if the tributary and lake are navigable under this decision.
(i) What are the publics' rights if the stream is not navigable as applied in Collins v Gerhardt, but is navigable for row boat or canoe?
Then the public would not have the right to enter an inland lake if only navigable by row boat or canoe. It would have to be navigable in fact and law under the definitions and decisions heretofore cited.
(ii) By wading either side of the stream?
If the stream is navigable, the public may wade up the stream and fish but cannot trespass on the uplands. The Recreational Trespass Act does allow access to the upland in the event passage in the stream is obstructed. If the stream is not navigable, the public can not wade up the stream, nor may they access by boat.
f. Do riparian owners hold rights to the subsoil of the center of the lake, to water's edge at established or high water level, or within their property lines?
In Bauman v Barendregt, 251
"A grant of land 'along the shore of' or by equivalent words or other description, bounded by a natural water course carries title to the middle line of the lake or stream . . . ." (citing Hartz v Railway, 153 Mich. 337 (1908)).
In Hardin v
When land is bounded by lake or pond, the water, equally as in the case of a river, is appurtenant to it; it constitutes one of the advantages of its situation, and a material part of its value, and enters largely into the consideration for acquiring it. Hence the presumption is that a grant of land thus bounded is intended to include the contiguous land covered by water. Besides, a lake or pond, like a river, is a concrete object, a unit, and when named as a boundary, the natural inference is that the middle line of it is intended, that is, the line equidistant from the land on either side.
Under these decisions, the riparian owners own the subsoil of an inland lake to the center of the lake.
g. Can a riparian owner fence off his property lines even tending into the lake or do all parties share equal rights to the entire surface area of such lake regardless of the size of their land holdings?
All riparian owners share equal rights to the entire surface area of a private inland lake, and may fish or boat upon any part of it. It would be inconsistent with the long line of case law for a riparian owner to fence off his portion of the lake. A riparian may, however, build docks or wharfs that do not interfere with the reasonable use of the lake for boating and fishing. This rule applies to all lakes, whether meandered or not. It also applies if the surface of the lake were frozen.
2. Public Lakes
If public access to navigable water has been established, the public user enjoys the same use rights and privileges of the private littoral owners. Thus, the right to fish a public lake extends to the whole lake. In fact, a lawful user of any lake, be it by public access or permission, has the right to any reasonable use of the lake.
It is the enforcement rule of the DNR, based
on many Michigan Supreme Court opinions, that state regulations regarding the
taking of fish apply to both navigable (public) and non-navigable (private)
waters. People v Collision, 85
It is only where a private body of water is entirely unconnected with other bodies of water that the fishing regulations do not apply. People v Conrad, 125 Mich. 1; 83 NW 1012 (1900). The theory behind this rule is that where fish are free to swim from place to place and to and from public waters, publicly stocked waters also, the public through the State has a substantial interest in the fish.
In People v Collision, supra,
the theory was advanced that ownership of fish is in the public before they are
caught, and that fishing is a privilege accorded by the state rather than a
private right. In this case, defendant took fish in Gun Lake through the means
of spears and jacks contrary to statute. Gun Lake is located in Barry and
Allegan counties and connects through other waters to Lake Michigan. It was held
that the fish in the lake were migratory and the property of the state, and as
such the state could regulate the mode of catching. But where the fish are
confined to a privately-owned lake or pond unconnected with other waters and
whose owner has the exclusive right of taking them, this public interest does
not exist. Marsh v Colby, 39 Mich. 626 (1878); Giddings v Rogalewski,
192
The following are excerpts from American Law Reports, Annotated, 15 ALR (2d) 754, in which applicability of state fishing license laws or other public regulations to fishing in private lakes or ponds is discussed.
Generally speaking, private lakes or ponds are not subject to the regulatory power of the state wherein they are situated. Such a naked proposition, however, is hardly adequate to indicate exactly what lakes or ponds are included or not in the statutes designed to regulate the time and manner of fishing in waters within the state. The term 'private waters' for the purpose of application of the statutes presents the main problem to be considered.
The courts generally recognize that a lake or pond is not private so as to be exempt from regulation merely because the soil underneath the water is privately-owned. The main test appears to be whether the lake or pond involved is connected, either continuously or at intervals with other bodies of water, so as to permit fish to move to and from the two places, or whether the lake or pond is entirely isolated. Some statutes expressly provide that private waters are to be exempt from regulation, thus establishing by legislative fiat a result reached by the courts by construction of statutes not expressing such an exemption. But specifically exempt or not, it must be determined in each special instance whether the physical attributes of the lake or pond are such as to be deemed 'private' and thus beyond the scope of regulation.
In accordance with the above discussion, the view has been generally taken by most jurisdictions that fishing statutes do not apply to lakes or ponds privately owned and not connected with any stream or other waters of the state, and this is so even though the particular statute involved does not specifically exempt private lakes or ponds. In People v Conrad, supra, a conviction for violating the fish law was reversed, and a statute making it unlawful to take fish by certain means in any inland lake in the state was held inapplicable to a private lake having no inlet or outlet with other waters.
The Court stated: "If it were connected with other lakes and streams, so that fish might pass in and out of it, others than the owners would then have an interest in protection of the fish in the lake." On the other hand, where a lake or pond, although privately owned, is connected with other waters, either at all times of the year or at substantially regular intervals, most courts, including Michigan courts, have maintained that the public has an interest in the fish therein and that state statutes regulating the time and manner of fishing should apply to such lake or pond. People v Horling, 137 Mich. 406; 100 NW 691 (1904) (holding that the owner of a private lake containing fish which migrate to and from it at different periods of the year may not take fish therefrom contrary to statute); People v Lewis, 227 Mich. 343; 198 NW 957 (1924); People v Bridges 142 Ill 30; 31 NE 115 (1982); People v Doxtater, 27 NYS 481, Aff'd 147 NY 723 (1894).
Pertinent Attorney General Opinions:
Where a private lake and either its inlet or outlet is navigable in fact, the public could not be excluded from fishing thereon; however, if the waters were non-navigable, the public could be excluded, and in both circumstances a riparian owner is bound by the fishing laws. OAG, 1931-1932, p. 295 (August 19,1931)
The general fishing laws of this state would govern fishing in a lake entirely enclosed by private lands, and which has neither inlet nor outlet connected with other bodies of public waters, where the public is permitted access via a boat livery or with permission of one or more of the riparian owners. OAG, 1959-1960, No 2553, p. 152 (August 5, 1959)
As indicated, whether a lake comes within the purview of the statute regulating fishing depends on whether the lake is connected with other waters so that fish can migrate to and from the lake for any length of time during any season of the year.
C. Indian Treaties and Fishing Rights
Recreational boat owners are advised that certain Indian Tribes, by virtue of Treaty rights, have the right to subsistence and commercially fish in Michigan waters. This right is recognized and enforced by the State of Michigan and must be recognized and, not disturbed, by all persons.
The sovereign status of Indian tribes was acknowledged in the Constitution of the United States and has guided application of Indian treaty law ever since. Now known as the Supremacy clause, Article VI, clause 2, states that "all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . ."
In Michigan, the Supremacy clause has been invoked by state and federal courts to uphold Indians' rights to fish--a prerogative retained in the treaty of 1836 with the Ottawa and Chippewa in Washington, DC.
The extent of treaty rights has been thoroughly examined by the courts. In the case of People v LeBlanc, 399 Mich. 31 (1976), the Michigan Supreme Court ruled that a Bay Mills Indian Community fisher needed no state license to fish commercially. In a similar case, United States v Michigan, 471 F. Supp. 192 (1979), United States District Court Judge Noel Fox further defined the treaty rights by ruling that the tribes and federal government had the exclusive right to regulate the treaty fisher and that the interest of State of Michigan was subordinate to that of the federal government. The dispute over these fishing rights worked a monkey wrench of sorts into the legal system. The case was then argued before the United States Circuit Court of Appeals in Cincinnati, United States v Michigan, 623 F.2d 448 (6th. Cit 1980), only to be remanded back to the District Court.
Eventually, in 1985, after several years of discussion and litigation, the tribes, states and federal governments successfully negotiated a 15-year settlement that was signed by all parties and upheld by United States District Court Judge Richard Enslen. This agreement defined exclusive commercial fishing zones in the Great Lakes for state and tribal fishers that are jointly managed by the tribes and state. Upon expiration of the 15-year agreement, a new settlement ("The 2000 Consent Decree") was negotiated between 5 Michigan Tribes, the federal government and the state and was issued as an order by Judge Enslen in August of 2000. This Consent Decree defines the allocation and management of the fisheries within the 1836 treaty-ceded waters if the Great Lakes for the period 2002-2020. Implementation of the settlement is overseen by an Executive Council of three tribal chairpersons, the Director of the DNR, and the Deputy Under Secretary of the Interior. The Code of Federal Regulations also contains a formalized approach to dealing with off-reservation Indian fishing rights that were granted by treaty. 25 C.F.R. §249 (1993).
The issue of fishing on the Great Lakes is not only a legal question, but an ethical one as well. Ottawa and Chippewa bands have depended on Great Lakes fisheries since long before the coming of the Europeans. Their fishing rights were retained in 1820, 1836, and 1855, the years of the principal treaties with the federal government.
It has been 155 years since the crucial Treaty of 1836 was signed. As Judge Fox reminds us, "[t]he mere passage of time has not eroded and cannot erode the rights guaranteed by solemn treaties that both sides pledge on their honor to uphold." The State of Michigan upholds the treaty and recognizes the tribal rights declared in United States v Michigan, 471 F. Supp. 192 (1979). The DNR is committed to reducing conflicts between sports, tribal, and commercial fishers.
D. Public Rights in Streams
DNR field personnel receive many inquiries about the public's rights to fish in given streams. Typical questions include:
"May I wade in a stream while fishing without being in trespass?"
"What may or should I do when floating or wading down a stream and I encounter a dam or log jam or a fence that I can't cross while in the water?"
On a navigable (public) stream, the public has the right to float the stream, to wade on the submerged soil and to fish therein, but this right does not extend to trespass upon the private uplands of abutting landowners. Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., provides an exception to this general rule; a wading fisherman may enter upon the upland to avoid a hazard or other impediment obstructing passage within the stream. On a non-navigable (private) stream, the public can neither wade nor float. They should, as a matter of right, feel secure in making a portage around any dam or other obstruction in a navigable (public) stream unless physically prevented from doing so by the riparian owner. The banks of such a stream so far as they are necessary to the exercise of the right of passage and navigation are subject to the public easement.
Also, while it is beyond question that the riparian owner is entitled to be protected from any unnecessary intrusion upon his premises, it is equally certain that he cannot solely for the maintenance of an abstract right or even an exclusive possession, deny any member of the public navigating a stream the right to land on or cross his upland for emergency purposes. This does not apply to the use of the banks of streams in private ownership for rest purposes, however.
Trespass for emergency purposes to protect life and limb also will incur liability to the property owner for any damage that is done to the property under common law trespass.
Still another question remains for decision. Where does the stream end and the bank begin? What is the bed of the stream or the submerged land? Is it the land under the stream at flood stage? Normal high-water mark? Normal low-water mark?
Part 301,
Ordinary high water mark means the line between upland and bottomland which persists through successive changes in water levels, below which the presence and the action of the water is so common or recurrent that the character of the land is marked distinctly from the upland and is apparent in the soil itself, the configuration of the soil and the vegetation. [MCL 324.30101(h)].
In Opinion No. 90, dated April 27, 1964; by Circuit Judge Allen C. Miller, for the County of Iosco, in Constan v Richter, the court discussed that testimony in this case disclosed the river varied as much as three feet, and stated that a decision on the foregoing points would seem to require evidence on the status of the vegetation; the angle of the river bank, whether gradual or sheer; the periods of time in which the adjacent uplands are submerged, and the like.
Judge Miller stated:
But it is clear that insofar as the clear riverbank extends, and within the banks of the river, a fisherman has the right to boat, to portage, wade and walk, even though at the particular minute there may not be water over the bed of the stream. The bed of the stream, of course, does not refer to the situation at flood stage, but to the definite bed of the stream as may be physically determined at the particular location by the vegetation and soil conditions then and there existing.
Judge Miller further stated:
Where an improvement has been artificially made, inhibiting fishing by wading where this was feasible in the natural state, such as digging of a deep hole in the river, the placing of a fence across it, or some other exercise of ownership by the riparian owner, some adjustment must be made to recognize and accommodate the public right. In other words, there should be some walkway provided so that the right to fish shall not be prohibited by indirection.
In brief, the court said that on a navigable (public) stream: (1) a fisherman or boater may float or wade in the stream or, if necessary upon the upland within the clearly defined banks of a stream without trespass; and (2) when an artificial obstruction prohibits wading or floating, an alternative route--a walkway--must be provided for the fisherman or boater.
It is presumed that where such a walkway is not provided by the riparian, the public may seek their own route provided it is subject to the principle of reasonableness.
It is quite clear that although a riparian owns the fee to the bed of a navigable (public) stream, his ownership is subordinate to the right of the public to the free and unobstructed use of the stream for navigation, fishing, swimming and other uses inherently belonging to the public. The riparian owner may not erect a fence or place a wire or other restraining feature so as to interfere with aforesaid uses by the public. Such placement is not only a restriction of and a hazard to navigation, but is a nuisance, as well as a deprivation of an inherent right of the public. Any member of the public who considers such interference as an invasion of his rights may initiate action in equity (civil suit) to abate the nuisance.
A trespass is the unlawful interference with one's person, property, or rights. (Black's law Dictionary, 5th ed., 1979). Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., provides that an individual must first obtain consent from the landowner of a farm or farm area before entering the land, and a trespasser shall not enter other lands when those lands are either posted or fenced. Specifically, the Part states:
[A] person shall not enter or remain upon the property of another person, other than farm property or a wooded area connected to farm property, to engage in any recreational activity or trapping on that property without the consent of the owner, or his or her lessee or agent, if either of the following circumstances exists:
(a) The property is fenced or enclosed and the property is maintained in such a manner as to exclude intruders.
(b) The property is posted in a conspicuous manner against entry. The minimum letter height on the posting signs shall be 1 inch. Each posting sign shall not be less that 50 square inches and the signs shall be spaced to enable a person to observe not less that 1 sign at any point of entry upon the property.
(2) [A] person shall not enter or remain upon farm property or a wooded area connected to farm property for any recreational activity or trapping without the consent of the owner, his or her lessee or agent, whether or not farm property or wooded area connected to farm property is fenced, enclosed, or posted.
Ostensibly, farm land is treated differently within the statute because there is a presumption that farmland is privately owned. The boundary line of other lands may not be clearly distinguishable to a casual trespasser. Therefore, the Act mandates the posting or fencing of the property to serve as notice to would-be trespassers. The boundary line of a farm, on the other hand, is usually quite obvious. Consequently, consent of the owner or the lessee of the farm is required before the trespasser may enter upon the farm land. Part 731, Recreational Trespass, provides for two limited exceptions which allow a technical trespasser access to farm, fenced, or posted property. The first exception pertains to navigable watercourses flowing through or adjacent to private property and is contained in MCL 324.73102(3); MSA 13A.73102(3) as follows:
(3) On fenced or posted property or farm property, a fisherman wading or floating a navigable, public stream may, without written or oral consent, enter upon property within the clearly defined banks of the stream or walk a route as closely proximate to the clearly defined bank as possible when necessary to avoid a natural or artificial hazard or obstruction, including, but not limited to, a dam, fence, or other exercise of ownership by the riparian owner.
Also, whenever such restraints are brought to the attention of the appropriate DNR Field Deputy, and following a confirming investigation, the DNR Deputy will notify the offending party that the barrier contravenes the public trust and must be removed, or a walking and portage route afforded the public. If cooperation is not secured, the Deputy will request the Attorney General to initiate injunctive proceedings or such other action as seen fit.
The same rationale cited for navigable streams should be applied to fences, wire, or other barriers placed in inland lakes. A private landowner may, however, place a fence or wire across a non-navigable (private) stream.
The second exception of Part 731, Recreational Trespass, does provide for access to private property under certain circumstances. The Part provides at MCL 324.731002, that:
(4) A person other than a person possessing a firearm may, unless previously prohibited in writing or orally by the property owner or his or her lessee or agent, enter on foot upon the property of another person for the sole purpose of retrieving a hunting dog. The person shall not remain on the property beyond the reasonable time necessary to retrieve the dog.
(5) Consent to enter or remain upon the property of another person pursuant to this section may be given orally or in writing. The consent may establish conditions for entering or remaining upon that property. Unless prohibited in the written consent, a written consent may be amended or revoked orally. If the owner or his or her lessee or agent requires all persons entering or remaining upon the property to have written consent, the presence of the person on the property without written consent is prima facie evidence of unlawful entry.
E. Trespass by Fishermen and Landowner Remedies
Unlike a private lake where the right to fish, once granted, extends to the entire surface of the lake, the right to fish a non-navigable stream extends only along those bottomlands on which the angler has riparian rights or permission of the riparian. The right to fish also extends to all non-navigable streams where the State is riparian. Several remedies are available to the riparian owners of private streams when trespass occurs by fishermen.
1. Recreational Trespass
Criminal trespass for fishing without consent on a private lake or stream, whether wading, floating or fishing from the bank or shore, can be sustained under Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., while on farm property, wooded area connected to a farm, or fenced or posted lands. Due to a loophole in the original act, this prohibition did not apply to the stream bank or shoreline along a public watercourse; however, a recent amendment to this Part eliminated this loophole. An additional ambiguity in the Part appeared to relieve trappers from compliance with the Part. It had been previously convincingly argued that the activity of trapping did not fall within the Part's language of precluded activities. The Part is applicable to "any recreational activity or trapping on that property without the consent of the owner.
The penalties for an infraction of Part 731, Recreational Trespass, are quite severe. First-time offenders of the Part are charged with a misdemeanor. Subsequent offenders are subject to having any hunting or fishing privileges within the state revoked. Any property, which the subsequent offender brings onto the property of another, is subject to seizure by a peace officer. This property may consist of the "instrumentality of the crime" which means "any property other than real property, the use of which contributes directly and materially to the commission of the crime." MCL 600.4701(b); MSA 27A.4701. The power of prosecution under the Part is vested in both the County prosecutor and the local city, village or township prosecutor. The court may order that the trespasser pay the costs associated with his or her own prosecution. Additionally, the trespasser is liable for restitution to the property owner for any damage to the property arising out of the trespass. These enforcement mechanisms apply equally to the angler as they would to the hunter, snowmobile or off-road vehicle operator.
2. General Criminal Trespass
Under certain circumstances, criminal trespass for fishing from the upland of a navigable stream or the shore of a public lake while on private property, or in other instances, can also be sustained in accordance with the General Trespass Act, MCL 750.552; MSA 28.820(1). This statute provides that:
[a]ny person who shall willfully enter, upon the lands or premises of another without lawful authority, after having been forbidden so to do by the owner or occupant, agent or servant of the owner or occupant, or any person being upon the land or premises of another, upon being notified to depart therefrom by the owner or occupant, the agent or service of either, who without lawful authority neglects or refuses to depart therefrom, shall be guilty of a misdemeanor and upon conviction therefrom shall be punishable by imprisonment in the county jail for not more than 30 days or by a fine of not more that $50.00, or both, in the discretion of the court.
It is obvious, therefore, that criminal trespass under MCL 750.552; MSA 28.820(1) must be other than casual. In other words, prosecution cannot commence until (1) the landowner orders the trespasser off his land and the trespasser refuses, or (2) after having been earlier ordered to depart, the trespasser returns.
One of the foregoing conditions must be met to sustain conviction of an alleged fishing trespasser under MCL 750.552. Further, the aggrieved landowner must sign a complaint before a judge, and sanction of the prosecuting attorney obtained before a warrant can be issued.
3. Common Law Trespass
A landowner may initiate civil action in a court of the county having jurisdiction against any person who enters his premises or lands without permission under common law trespass. This action is possible whether or not the lands are enclosed or posted. Common law trespass differs from the earlier mentioned statutory criminal trespass in a number of ways: it is not a statutory offense; it is a civil, rather than criminal, offense, and; refusal to depart, or returning after being ordered off is not an element of the offense. Mere entry without prior authorization constitutes grounds for a common law trespass. Specifically, the common law trespass may be used against a first-time trespasser who has never been forbidden by the landowner.
Where no actual damage can be shown by such trespass, only nominal damage can be recovered against a person charged with common law trespass. Nominal damage are those which are awarded to a plaintiff whose interests are recognized and protected by the law, but who has suffered no consequential or pecuniary loss or damage, or a loss which is too difficult to measure. The court may award nominal damages of only 1 cent ($.01) or it may be fifty dollars ($50.00). However, the defendant-trespasser would probably have to engage an attorney to defend himself in court, which would prove costly, and thereby provide some vindication to the person whose property was invaded, notwithstanding the awarding of only nominal damages.
4. Liability of Property Owner
A landowner whose lands are trespassed upon has limited liability in the event a trespasser is injured upon the property. Part 733, Liability of landowners, 1994 PA 451, MCL 324.73301 et seq., MSA 13A.73301 et seq., deals with the liability of landowners for the injuries to others. The statute states that:
[a] cause of action will not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission , against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.
Consequently, if the trespasser is injured upon the property of another, the landowner is not liable for the injuries sustained by the trespasser unless the landowner was grossly negligent or engaged in wanton and willful conduct.
F. The Public's Remedy for the Deliberate Felling of Trees or Other Purposeful Impediments to Public Water Travel
Occasionally, complaints are received about deliberate felling of trees, or placement of other waste materials in rivers that impede travel by boat or canoe. The following relief is possible.
MCL 230.4; MSA 9.334, provides in part:
Whoever shall willfully obstruct the navigation of any river or stream, which is now or may hereafter be declared a public highway, by felling any tree therein or putting into such river or stream any . . . other waste materials . . . shall forfeit for every such offense a sum not exceeding twenty-five (25) dollars.
This is not a "strict liability offense," but one of "mental culpability," which imposes upon the state the burden to prove that the offender did in fact intentionally fell the tree(s) or place other impediment in the waterway. Since a term of imprisonment is not provided as a penalty for this offense, prosecution is properly brought to court by service of a summons together with the copy of a complaint, the same as though it were a civil case.
Also, obstructions of navigable streams may be removed by county road commissioners, pursuant to MCL 247.171-.190; MSA 9.251-.270. OAG, 1930-32, p. 264 (July 13, 1931). Briefly, this act, MCL 247.172, in part, provides that encroachments, not removed within 30 days after service of an order by the road commissioner, shall subject offenders to a forfeiture of $1.00 for each day after expiration of the order that the encroachment is not removed in an action of trespass, or the road commissioner may remove such encroachment at the expense of the person at fault.
Navigable canals through state-owned property leased to various individuals are a public highway and an obstruction thereon may be removed by county road commissioners or enjoined at the suit of lessees adversely affected by obstruction. OAG, 1941-42, No 21879, p. 548 (March 16, 1942).
Michigan statutes do not authorize the DNR to remove obstructions from navigable streams.
G. Right to Take Game - Generally
The right to take game is a private property right vested solely in the property owner. This is unlike the right to fish which arises by the establishment of public water through its use, as well as the waters capacity for use in transportation and travel, and from the fact that there is no private ownership in the fish or in the right to take fish from public waters. Being a private property right, the taking of game is lawful only with the permission of the property owner.
The picture is best summed up by example. The public has a legal right to fish from a boat during open season on public waters, but this right would not include the shooting of ducks from the same boat without permission of the riparian owner, even though the shooting season was open. This violates a property right.
H. Hunting and Trapping on Submerged Lands - Riparian Rights
It has been well established in Michigan, that the owner of lands bordering on a navigable stream or lake, with the exception of the Great Lakes, owns the submerged lands to the thread of the stream, subject only to the easement of navigation which the public may have thereon, and that he also owns the ice covering the surface of the water over the submerged lands and any interference with these rights constitutes a trespass.
The right of trapping is a property interest and the riparian owner of lands has the exclusive right to trap. In an enforcement action against a trespasser the landowner is entitled to the remedies available under Part 731, Recreational Trespass.
I. Duck Hunting Rights in Public Waters
The following information has been compiled to clarify several common misunderstandings and for convenience in answering frequently asked questions regarding waterfowl hunting rights and erection of duck blinds on public waters. Be aware that duck hunting is not only subject to the general laws of taking game but also the need for permission from any private landowner whose land is used for hunting.
1. Duck Blinds - Name and Address - Removal from the Water
Wildlife Conservation Act Order 3.401 provides:
No person shall erect on, anchor or attach to the bottomlands of the great lakes, lake St. Clair and the bays thereof or the connecting waters between the lakes, or any public inland lake or river, or in any lake which is not wholly owned by himself, his lessor or licensor, a blind or any other structure used or to be used in the hunting of migratory waterfowl, unless there shall first be affixed permanently to the exterior thereof the name and address of such person in legible letters of water insoluble material not less than 3 inches in height. No person shall affix a fictitious name or address or both to a blind or structure or remove or cause to be removed a name and address prior until the blind or structure is removed from the water.
(1) Any person who shall erect, anchor or attach such blind or structure on the bottomlands hereinafter described shall remove the entire blind including submerged supporting members within 15 days after the close of the waterfowl hunting season in each year. If not removed within that time the director may cause its removal or destruction and assess the costs of removal and storage, or destruction, against the person whose name is affixed to the blind or other structure, in addition to any other penalty provided.
(2) Nothing contained in this section shall be construed to deprive a riparian owner or his lessee or permittee on inland waters of his exclusive right to hunt over his subaqueous lands, nor shall the posting of the name and address of the person erecting a blind or other structure attached to bottomlands of the great lakes and lake St. Clair, used or to be used in the hunting of waterfowl, be deemed to constitute the exclusive privilege of hunting therefrom, or to reserve or preempt a shooting location for such person. An unoccupied blind attached to the bottomlands of the great lakes or lake St. Clair may be used by the first person to occupy the same.
The foregoing does not apply to any blind which, in its entirety, is erected landward of the water's edge.
2. Rights of Hunting
(i) Inland Waters - A riparian owner (owner of land abutting water) on an inland lake or a stream also owns the submerged soil fronting the upland to the center of the lake or to the "thread" of the stream.
In some instances, however, where fee title to submerged lands may have been conveyed separately from riparian rights, a riparian may not have the exclusive right of fowling. The courts have held that when such fee title is conveyed separately from riparian rights, it must be specifically spelled out in the deed. In other words, the deed should indicate that "the party of the first part withholds from the party of the second part, and reserves to itself, the riparian rights attached to the submerged soil being conveyed."
MCL 311.1; MSA 13.1321, as amended, reaffirms the common law and supporting Supreme Court ruling, St. Helen Shooting Club v Carter, 248 Mich. 376; 227 NW 746 (1929) that the owners of land and their lessees or licensees have the exclusive right of hunting waterfowl over the land. This right is vested solely in the landowner whether the land be upland or covered with water, or whether on navigable (public) or non-navigable (private) water.
(ii) Great Lakes and Lake St. Clair - The boundary line of riparian owners along the Great Lakes and Lake St. Clair is the ordinary high water mark as established pursuant to Part 325, Great Lakes Submerged Lands, 1994 PA 451, MCL 324.32501 et seq; MSA 13A.32501 et seq.
The Wildlife Conservation Order has declared that the requirement of posting blinds erected on the Great Lakes and Lake St. Clair does not give exclusive hunting privileges to any person or preempt a shooting location for such person. This is intended to deter commercialization of such blinds. The Order also provides that an occupied blind, attached to the bottomland of the Great Lakes or Lake St. Clair, may be used for hunting by the first person to occupy the blind.
The authority for this is that title to the submerged lands beneath the Great Lakes and Lake St. Clair is in the state, and the State of Michigan has a duty to make use of its proprietorship to the best interest of the public. Therefore, the provision of the statute that any person may make use of any blind erected on the Great Lakes or Lake St. Clair on a first-come basis is entirely valid. This provision is supported by Part 415, Public Shooting and Hunting Grounds, 1994 PA 451, MCL 324.41501; MSA 13A.41501, which sets aside the unpatented submerged lands on the Great Lakes and Lake St. Clair and the submerged lands belonging to the state on the Kalamazoo, Grand and Muskegon Rivers as a public hunting ground for all of the people, and provided, further that any person who shall occupy same in such manner as to deny this privilege shall be deemed a trespasser against the State of Michigan. Privately-owned lands on the Kalamazoo, Grand and Muskegon Rivers are not affected.
3. Locking of Blinds
Any person who erects a blind on the bottomland of inland waters owned by him, or on such bottomland of another with his permission, may lawfully lock the blind.
A person erecting a blind on the unpatented bottomlands of the Great Lakes or Lake St. Clair, which are owned by the State of Michigan in trust for all the people, may not lawfully lock such blind as ownership of the blind is not vested in the person who erects or occupies it. This is the only stand the State of Michigan can take, as it has an undoubted right and duty to make use of its ownership in the best interest of the public. If the state condoned any other usage, it would be reserving shooting locations for the exclusive use of a few individuals, as well as, possibly, aid and abet commercialization on state lands in that many such blinds would be rented to other hunters, which is contrary to the statutes of Michigan.
No person has a right to force or order a hunter to surrender a duck blind he is lawfully occupying. This applies regardless of where the blind is located.
The erection or occupying of a blind attached to the bottomlands of another on inland waters is unlawful when expressly forbidden by the owner; or if requested to depart by the owner, the hunter erecting or occupying the blind refuses. Failure to so comply constitutes trespass within the purview of MCL 750.552; MSA 28.820(1). To effect issuance of a warrant for such trespass, the riparian owner or his agent must file a formal signed complaint before a magistrate.
4. Driving Ducks Away From Hunters
The Legislature, through passage of Part 415, Public Shooting and Hunting Grounds, 1994 PA 451, MCL 324.41501 et seq.; MSA 13A.41501 et seq., set aside the submerged and swamp lands belonging to the state for a public shooting and hunting ground. The Part provides that:
It shall be unlawful for any person or persons to willfully scare or drive wild ducks or other wild water fowl, or cause the same to be done, from or away from any person lawfully hunting the same within said park, for the purposes of depriving or attempting to deprive such person of any or all of his opportunities of shooting or hunting such wild duck or other wild water fowl . . . .
Specifically, this section applies to all swamp and submerged lands lying along the borders of Lakes Erie, Michigan, Superior, Huron and St. Clair, and along the shores of the Kalamazoo, Grand and Muskegon Rivers.
More recently, the Legislature has enacted MCL 324.40112; MSA 13A.40112, commonly referred to as the Hunter Harassment Law. This statute states that, with the exception of a peace officer in performance of legal duties, "[a] person shall not obstruct or interfere in the lawful taking of animals by another person." A person who violates this section is guilty of a misdemeanor and a court, based upon the principles of equity, may enjoin the conduct of the offending person.
J. Boating and Boat Hoist Regulations
1. General Boating Regulations
The general boating regulations for
2. Anchoring Boat on Riparian Owner's Subaqueous Land
Under the law of Michigan, the riparian proprietors who own to the middle of the lake are subject to the right of other riparian owners to use the surface of the whole lake for boating and fishing.
In Paterson v Dust, 190 Mich. 679; 157 NW 353 (1916), it was held that, while a riparian owner's property rights to subaqueous lands are subject to an easement in the public for navigation purposes and are subject to the right to anchor as an incident to the right of navigation, nevertheless the right of navigation does not include, as an incident thereto, the right to anchor indefinitely off the riparian owner's premises and consequent impairment of the riparian owner's use and enjoyment of his property rights.
3. Submerged Lands of Great Lakes - Signs
May signs be placed on submerged lands of the Great Lakes lying adjacent to swamp land grants?
Circuit Judge P. J. Glennie, in opinion No. 5273 rendered January 6, 1966, in the Circuit Court for the County of Alpena, held that it would be unlawful for any person to place signs beyond the meander line delineated by the General Land Office survey, as swamp land grants are not grants of riparian rights and the meander line of such land grants is the lakeward boundary.
Through its holding in Brown v Parker, 127 Mich. 390; 86 NW 989 (1901), Michigan has construed the lakeward boundary of swamp patents as being the meander line, and the courts have further held that any conveyance to another by the State of Michigan of these lands, originally received from the Federal Government, must be so limited.
In no event shall any sign be placed lakeward of the ordinary high water mark.
4. Boat Hoists Along
The title to the submerged lands beneath the Michigan waters of the Great Lakes is in the State of Michigan, and it is unlawful to place permanent structures on this submerged soil or the exposed soil between the ordinary high water mark and the water's edge without a permit.
The following generally prevails: A boat hoist placed in the water by a riparian in front of his upland is a permissible act if removed each fall, as a riparian has a right of access to navigable waters subject to the general public's right of navigation. However, a non-riparian, who contemplates doing so, should obtain permission of the riparian notwithstanding that fee title of the bottomland is in the state because, if the riparian's inherent rights to use of the water for bathing, wharfing to navigability, access to the water, etc., is interfered with by placement of a boat hoist, the riparian may initiate civil action to cause its removal.
K. Access to Public Waters
1. Public Access Sites - Boat Liveries
A private inland lake, which is capable of supporting a beneficial public interest, automatically becomes a public inland lake, when the State of Michigan becomes a riparian owner of land on the lake for the purpose of providing a public fishing site. The general fishing laws of this State govern all fishing in a private lake as long as public access thereto is permitted by one or more of the riparian owners. OAG, 1959-60, No. 2553, p. 152 (August 5, 1959). Access to a private lake via a boat livery makes it a public lake subject to the fishing laws of Michigan.
2. The Mooring of Houseboats on the Inland Waters
From time-to-time the mooring of houseboats on inland waters becomes a controversial problem.
The Legislature, through enactment of MCL 123.591; MSA 5.2965(1), authorized County Boards of Commissioners, outside the corporate limits of cities and villages, to regulate, by ordinance, the location of houseboats on those portions of lakes, rivers, canals and waterways of the county under their jurisdiction.
Unquestionably, the county has the authority to prohibit, by ordinance, the mooring of a houseboat on an inland lake.
The owner of the bottom lands on which the houseboat is moored also has a cause of action for trespass. However, although it is a technical trespass it is strictly a civil matter. The riparian owner should consult the county for possible action by that entity or seek the counsel of an attorney.
L. Highway Access to Public Waters
Some waters are touched or bordered by public roadways, most of which have been established by public use or by easement. Ownership of the land beneath such roadways remains with the private landowner. The public has merely acquired the right to use the land for roadway purposes, but not the right to pick the fruits, nuts, or crops alongside the roadway. These remain the property of the landowner. The courts have held the public has no right to enter a non-navigable lake or stream from a public roadway any more than to enter the orchards or uplands along such roadway.
However, the Michigan Supreme Court in Cass County Park Trustees v Wendt, 361 Mich. 247; 105 NW2d 138 (1960), ruled that whenever a highway actually and in the natural state of things contiguously borders or ends in navigable public waters, the public has a right of access from the highway by land to the highway by water. The court in so ruling did not differentiate between right-of-way owned in fee, granted by easement, or established by user. In fact, the Cass County Park case, where right-of-way was granted by easement, was not quite as simple as in most cases in that the evidence clearly illustrated that there was also a strip of land between the highway and the water's edge. It was established the strip had been used for public purposes, including the launching of boats, swimming, fishing and parking of automobiles, and that such use had been a constant one. Notwithstanding, the court additionally held that the right of public access to bodies of water bordered or skirted by public roads may be lawfully created by long continued use (prescriptive easement) even across such strip of intervening private property.
M. Back-Lot Owners' Rights
Riparian rights accrue only to those who own land that adjoins a body of water. Such riparian rights include the right of access to the water; the right to install and use a dock; the right to use the entire surface of the body of water for boating and fishing; and other rights of general purpose value, such as bathing, domestic use, or any other "reasonable uses."
However, the grantee of an easement to the lake (often the back-lot owner who is not a riparian) may or may not be entitled to install and use a dock extending into the lake or to use the shore fronting the right-of-way for bathing, etc. This depends upon the terms of the easement granting the right-of-way.
If the easement is granted in terms which
clearly and specifically allow or deny this use, the language of the instrument
creating the right will control. If the easement is granted in general terms (no
reference being made to the installation of a dock or the right to use the
upland shore fronting the way for bathing or other purposes) the uncertainty
must be resolved by applying the general principles of law to the construction
of ambiguous writings. "A person entitled to the use of an easement cannot
materially increase the burden upon the servient estate beyond what was
originally contemplated." Thies v Howland, 424
Such easement grantee may, however, under any condition, bathe or swim in the water or use the entire surface of the lake so long as the grantee does not interfere with the reasonable use and enjoyment of the water by riparian owners. The use of the water by the grantee must be reasonable in itself, and the rights of other riparians shall not be unreasonably interfered with.
The criteria for determining reasonableness were set forth in Thompson v Enz, 379 Mich. App. 667; 154 NW2d 473 (1967) and were summarized by the court in Three Lakes Ass'n v Kessler, 91 Mich. App. 373; 285 NW2d 300 (1979), as follows:
First, attention should be given to the size,
character and natural state of the water course. Second, consideration should be
given the type and purpose of the uses proposed and their effect on the
watercourse. Third, the court should balance the benefit that would inure to the
proposed user with the injury to the other riparian owners. [
In short, it can be said that if the easement does not specifically grant the right to use the shore for other than mere access to the water, a person who is not a riparian owner (but only the grantee of an easement) may not, without committing trespass, use the upland shore for other than access purposes unless the easement conditions have been adjudicated by a court of law.
N. Possible Future Restrictions on Access to and Use of Public Inland Lakes
The question of access to and use of a public inland lake was considered in Opal Lake Ass'n v Michaywe' Ltd. Partnership, 63 Mich. App. 161; 234 NW2d 437 (1972). The action was against a developer who proposed to grant access to the lake to all residents of a very large development by means of a lot fronting on the water. The trial court rendered an excellent opinion and granted an injunction against the builder. As the facts indicate, there were already public access sites on Opal Lake. The trial judge recognized the problems involved and indicated in his opinion that "potentially even the public site, as this court understands it, could be eliminated if they in turn force too great a use upon that lake which interferes with riparian use." This clearly represents the trend of authority in other jurisdictions throughout the United States, which, briefly, states that it is not the right of every riparian owner to permit limitless numbers of licensees to go upon a lake irrespective of the proportion of his shoreline ownership.
The riparian owners of a lake and their lessees, licensees and invitees may normally use the surface of the whole lake for boating and fishing. However, if such use shall reach a point so as to interf