Thompson v. Enz
| Decision Date | 09 March 1966 |
| Docket Number | No. 470,No. 3,470,3 |
| Parties | Louis B. THOMPSON and wife, Eugenia C. Thompson, et al., Plaintiffs and Appellees, v. Edward R. ENZ, et al., Defendants, and Appellants. Cal |
| Court | Court of Appeal of Michigan — District of US |
Richard M. Brewer, Kalamazoo, N. A. Cobb (amicus curiae), Battle Creek, for appellants.
Robert W. Richardson, Law, Fallon, Weathers & Richardson, Grand Rapids, Frank J. Kelley, Atty. Gen., Lansing, (amicus curiae), for appellees.
Before BURNS, P. J., and T. G. KAVANAGH and HOLBROOK, JJ.
The plaintiffs are owners of lots on Gun Lake in Allegan and Barry Counties in beautiful western Michigan.
The defendants are land contract purchasers of a large parcel of land abutting Gun Lake which they propose to subdivide into 144 to 153 lots. According to the proposed plat there will be approximately 16 lots in the new subdivision which will border Gun Lake and the remaining lots will have access to the lake by means of canals which will be dug by the subdividers.
The plaintiffs filed suit claiming that defendants' proposed development would constitute an illegal invasion of their property rights as riparian owners abutting Gun Lake.
When both parties moved for summary judgment, the trial court granted it to plaintiffs. From that judgment the defendants appeal.
The trial court determined that the back lots would be non riparian and therefore could not be given riparian rights by dredging canals to them.
We agree with the lower court's conclusion that riparian rights cannot be created in non riparian land. However, the case at bar does not involve that proposition and accordingly the cases cited in support of his holding, Ruggles v. Dandison (1938), 284 Mich. 338, 279 N.W. 851; Richardson v. Prentiss (1882), 48 Mich. 88, 11 N.W. 819; Bauman v. Barendregt (1930), 251 Mich. 67, 231 N.W. 70; Hilt v. Weber (1930), 252 Mich. 198, 233 N.W. 159, 71 A.L.R. 1238; Kerley v. Wolfe (1957), 349 Mich. 350, 84 N.W.2d 748 are not in point. This is not a case involving non riparian land. The defendants' land is one parcel abutting Gun Lake and as such there is no question of its riparian nature. Therefore, the issue presented in this case is whether or not riparian rights can be reserved in back lots when a riparian parcel is subdivided.
The question presented is one of first impression in Michigan but we find two states which have considered it and we agree with the reasoning explaining their decision.
The California Supreme Court has decided that riparian rights can be reserved in back lots where the original parcel was riparian. However, it is to be noted that if the riparian rights are not reserved, they will be lost. Anaheim Union Water Co. et al. v. Fuller et al. (1907), 150 Cal. 327, 88 P. 978, 11 L.R.A.,N.S., 1062.
In the case of Strong v. Baldwin (1908), 154 Cal. 150, 97 P. 178, 120 Am.St.Rep. 149 we find language appropriate to decision in the case at bar. The California court there stated in 97 P. at page 181:
* * * As we have seen, the land of some of these parties does not border upon the stream, but it does not necessarily follow that such land is without such riparian rights. When a tract of land abuts on a stream and a portion thereof not contiguous to the stream is conveyed by the owner, the riparian right of the portion so conveyed in the stream may also be conveyed with the land, as is fully recognized in the case cited by learned counsel for appellants (Anaheim, etc., Co. v. Fuller, 150 Cal. 331, 88 Pac. 978), and, when so conveyed, is still a riparian right with all the attributes of such right, and is in strict technical language 'parcel of the land' conveyed. The same is necessarily true where a tract of land abutting on a stream is partitioned in court proceedings among the owners thereof, and appropriate provision for riparian rights is made in the decree as to the portions allotted by the decree which do not abut on the stream. See Rose v. Mesmer, 142 Cal. 322, 75 Pac. 905; Verdugo, etc., Co. v. Verdugo ( Cal. ) 93 Pac. 1021. This is not a case, as suggested by appellants, of attempting to make riparian lands, which are not in fact riparian, but is simply the preservation of the right which the land has at the time of the conveyance or decree. * * * Also in accord are the cases of Miller & Lux, Inc., v. J. G. James Co. et al. (1919), 179 Cal. 689, ...
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Thompson v. Enz
...its opinion on March 9, 1966, reversing the trial court and directing that judgment be entered for the defendants. Thompson v. Enz, 2 Mich.App. 404, 140 N.W.2d 563. The Attorney General of the State of Michigan has filed a brief Amicus curiae in this cause in which it is stated, among other......
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Thompson v. Enz, 15
...DETHMERS, C.J., abstained.' T. G. KAVANAGH, Justice. When this matter was originally submitted to the Court of Appeals, 2 Mich.App. 404, 140 N.W.2d 563 the only issue raised on appeal was whether the proposed use was an illegal invasion of plaintiffs property rights as riparian owners abutt......