154 N.W.2d 473 (Mich. 1967), 6, Thompson v. Enz

Docket Nº:6.
Citation:154 N.W.2d 473, 379 Mich. 667
Opinion Judge:[379 Mich. 693] BRENNAN, Justice.
Party Name:Louis B. THOMPSON and wife, Eugenia C. Thompson, Michael J. Chlebana, B. William Henrickson and wife Mary M. Henrickson, Abel F. Jensen and wife Alice L. Jensen, and Enola Whitney, Plaintiffs and Appellants, v. Edward R. ENZ, Robert E. Boyle and Sunrise Shores, Inc., a Michigan Corporation, Defendants and Appellees.
Attorney:[379 Mich. 674] Law, Fallon, Weathers, Richardson & Dutcher, Grand Rapids, for plaintiffs-appellants; Robert W. Richardson, Grand Rapids, of counsel. Richard M. Brewer, Kalamazoo, for defendants and appellees. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Nicholas V. Olds, Jerome ...
Judge Panel:Before the Entire Bench.
Case Date:December 04, 1967
Court:Supreme Court of Michigan

Page 473

154 N.W.2d 473 (Mich. 1967)

379 Mich. 667

Louis B. THOMPSON and wife, Eugenia C. Thompson, Michael J.

Chlebana, B. William Henrickson and wife Mary M. Henrickson,

Abel F. Jensen and wife Alice L. Jensen, and Enola Whitney,

Plaintiffs and Appellants,

v.

Edward R. ENZ, Robert E. Boyle and Sunrise Shores, Inc., a

Michigan Corporation, Defendants and Appellees.

No. 6.

Supreme Court of Michigan.

December 4, 1967

Page 474

[379 Mich. 674] Law, Fallon, Weathers, Richardson & Dutcher, Grand Rapids, for plaintiffs-appellants; Robert W. Richardson, Grand Rapids, of counsel.

Richard M. Brewer, Kalamazoo, for defendants and appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Nicholas V. Olds, Jerome Maslowski, Asst. Attys. Gen., Lansing, amicus curiae.

Before the Entire Bench.

[379 Mich. 693] BRENNAN, Justice.

The parties to this lawsuit have entered into a stipulation of facts which is as follows:

'This controversy concerns riparian property rights on Gun Lake which is situated partly in Barry County, and partly in Allegan County, Michigan, and which the parties hereto agree has approximately 2,680 acres of surface area and approximately 30 miles of shore line and is used primarily for recreational purposes.

'The defendant and appellant corporation is a contract purchaser of a riparian parcel of land having approximately 1,415 feet of frontage on said lake and the individual defendants and appellants are the sole stockholders of said corporation. The plaintiffs and appellees are owners of properties abutting on Gun [379 Mich. 694] Lake and possess riparian rights to said lake and use the waters thereof for recreational purposes. The State has intervened herein by the Attorney General as amicus curiae and is the owner of a large parcel of land abutting Gun Lake and possessing riparian rights thereto.

'The defendants and appellants are developing their parcel into a plat of from 144 to 153 lots of which approximately 16 will abut directly on Gun Lake. The remaining lots would, if developed according to the appellants' plans, front on canals connected to the lake and the owners would have access to the lake for recreational purposes. These lots would have approximately 11,000 feet of frontage on these canals.

'Appellees' exhibit attached to their amended complaint substantially reflects the appellants' development. Appellants propose and intend to grant to the purchaser of each lot fronting on these canals the right and privilege of using

Page 475

the surface of Gun Lake for recreational purposes in common with plaintiffs and the owners of all other lots abutting on said lake.

'When the Appellees became aware that the appellants' development had commenced, they filed their complaint with the trial court, claiming that the appellants' proposed development would constitute an infringement upon the rights of appellees as riparian owners of Gun Lake and seeking a declaratory judgment to the effect that the appellants' actions constituted an illegal invasion of appellees' rights. Both parties moved for summary judgment and the trial court on January 26, 1965, entered a judgment in favor of the appellees, from which judgment this appeal is taken.'

Based on this stipulation of facts, the Court of Appeals heard arguments in the cause and rendered 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.

[379 Mich. 695] The Attorney General of the State of Michigan has filed a brief Amicus curiae in this cause in which it is stated, among other things, that the development proposed by the defendants would have an adverse effect on the level of the water in the lake. Amicus curiae must accept the issues framed by the actual parties to the lawsuit.

There has been no allegation here as to the effect of the development upon the level of the water in the lake nor any other specific adverse effect which might flow from defendants' development. Our decision in this case must be predicated upon the assumption that the development proposed by defendants will not lower the level of the water in the lake nor will it have any other specific deleterious effect thereon. The case is presented as one purely upon rights in land.

Plaintiffs have argued that a riparian proprietor owning property along the shore of an inland lake cannot legally extend riparian rights to back lot owners by means of an artificial canal. Defendants argue that riparian rights already enjoyed can be reserved and conveyed in connection with the sale of back lot parcels.

Plaintiffs correctly cite cases which stand for the undisputed proposition that lands, to have riparian rights, must abut upon the water, (and that lands which do not have riparian rights cannot accede to them by reason of the creation of an artificial canal). Thus, if the defendant developer were to subdivide his property and convey lots which are not contiguous to the water with no reference in such conveyance to riparian rights, such lots would have no riparian character and could not thereafter be made riparian by the digging of a canal.

That is not the case here. Here, the developer wishes to subdivide his property and convey back [379 Mich. 696] lots by deeds which will expressly grant easements for rights of way, permitting access to the lake through the canal. There is no doubt that a riparian owner can grant an easement over his land to permit a nonriparian owner to have access to the water.

A great many inland lakes in Michigan have been developed in this fashion, where cottages or homes do not have actual lake frontage, but do enjoy, in common with other property owners, the use of a granted or reserved easement providing for access to the water for recreational purposes. If the easement proposed in this case were a road, rather than a canal, no serious issue would be raised concerning the defendants' right to convey back lots with such an easement included in the grant.

But the easement here is not a road, it is a canal. And the difficulty here is that an easement over a canal, especially where the dominant estate abuts upon the canal, has many of the advantages and appearances of riparian ownership. Nevertheless, the two are not identical in legal contemplation. If the easement over the canal

Page 476

is limited to use of the canal for access to the lake, canal lot owners could not use the waters of the canal for household purposes, swimming, fishing, water skiing or any of those general purposes normally permitted to riparian owners. Once they get out on the lake, the canal lot owners would not be using the lake as riparian owners, but merely as members of the general public who have availed themselves of a lawful access to the lake.

It can be argued that the proprietor, by expressly permitting all of the usual incidents of riparian ownership, might create easements in the canal which are tantamount to riparian ownership therein.

Still there would remain the legal distinction between rights held by express grant in a deed and [379 Mich. 697] rights held by virtue of the physical touching of the land by a natural body of water. And there would remain the distinction that the rights granted by easement would be rights in the canal and not in the lake.

It would seem that if the owner of riparian lands can lawfully dig a canal onto his own property, for his own use, he can grant easements in and to the canal to nonriparian property owners. The real issue in this case, then, is: Can this defendant lawfully dig this proposed canal on his property?

Absent statutory regulations to the contrary, mere alteration of the natural shore line does not Per se adversely affect the riparian rights of other owners of lake front property. Seawalls, boatwells, and permanent docks are all examples of alterations of the natural shore line. No one contends that such improvements infringe upon the riparian rights of other owners in the absence of specific allegations of harm flowing therefrom, as for example, if a dock were to be of such length as to interfere with traffic upon the lake. Generally, riparian rights comprise such uses of the waters as do not deprive other riparian owners of the same uses.

Whether the dredging of any given canal by a riparian owner constitutes an infringement upon the riparian rights of the other riparian owners is a question of fact.

Will the lake level be lowered?

Will the lake be polluted?

Will the fish die, or the birds fly away, or the lake bottom become rocky or mucky or weedy?

In short, these riparian plaintiffs have the burden of alleging and proving some actual damage to themselves that will flow from the dredging of the canal.

Such factual questions could have been raised in this case, but they were not.

[379 Mich. 698] To remand this cause to circuit court for trial upon factual issues never alleged by the parties or framed by the pleadings is to impose upon both plaintiffs and defendants an entirely new lawsuit, and one which neither side has asked for.

A simple and final appellate decision in this case upon the legal questions raised in this case and to which the parties have limited themselves will leave other plaintiffs, including the State of Michigan, quite free to begin a different lawsuit upon a different theory if they choose to do so.

There is one other point which ought to be discussed here. Plaintiffs claim that the creation of canal lots would Per se have an injurious effect upon other property owners in that the boat traffic upon the lake would be increased. It is further assumed, if not argued, that if all of the other property owners were to build canals...

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