Bott v. Commission of Natural Resources of State of Mich. Dept. of Natural Resources

• Court: Michigan Supreme Court
• Writing for the Court: LEVIN; FITZGERALD; WILLIAMS and RYAN; Fellows
• Citation: Bott v. Commission of Natural Resources of State of Mich. Dept. of Natural Resources, 415 Mich. 45, 327 N.W.2d 838 (Mich. 1982)
• Decision Date: 08 December 1982
• Docket Number: Docket Nos. 60947,62877 and 62878,6,Nos. 5,s. 5
• Parties: John A. BOTT, Plaintiff-Appellee, v. The COMMISSION OF NATURAL RESOURCES OF the STATE OF MICHIGAN DEPARTMENT OF NATURAL RESOURCES, and Director of the Michigan Department of Natural Resources, Defendants- Appellants. William C. NICHOLAS and Caroline J. Nicholas, Plaintiffs-Appellants, v. Russell E. McDANIEL and Richard Rademacher, Jointly and Severally, Defendants-Appellees. ATTORNEY GENERAL, ex rel DIRECTOR OF NATURAL RESOURCES, For and on Behalf of the DEPARTMENT OF NATURAL RESOURCES and The People of the State of Michigan, Plaintiffs- Appellees, v. William C. NICHOLAS and Caroline J. Nicholas, Husband and Wife, Defendants-Appellants. Calendar415 Mich. 45, 327 N.W.2d 838

Page 838

327 N.W.2d 838

John A. BOTT, Plaintiff-Appellee, v. The COMMISSION OF NATURAL RESOURCES OF the STATE OF MICHIGAN

DEPARTMENT OF NATURAL RESOURCES, and Director of

the Michigan Department of Natural

Resources,

Defendants-

Appellants.

William C. NICHOLAS and Caroline J. Nicholas, Plaintiffs-Appellants, v. Russell E. McDANIEL and Richard Rademacher, Jointly and Severally, Defendants-Appellees.

ATTORNEY GENERAL, ex rel DIRECTOR OF NATURAL RESOURCES, For

and on Behalf of the DEPARTMENT OF NATURAL

RESOURCES and The People of the State of

Michigan, Plaintiffs- Appellees, v. William C. NICHOLAS and Caroline J. Nicholas, Husband and Wife, Defendants-Appellants.

Docket Nos. 60947, 62877 and 62878.

Calendar Nos. 5, 6.

415 Mich. 45, 327 N.W.2d 838

Supreme Court of Michigan.

Argued Jan. 8, 1980.

Decided Dec. 8, 1982.

Casey, Cavanaugh & O'Neill by Thomas P. Casey, Troy, for Bott.

William C. Nicholas, Caroline J. Nicholas, in pro. per.

Fraser Trebilcock Davis & Foster, P.C. by Donald A. Hines and David E.S. Marvin, Lansing, for McDaniel, et al.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank J. Pipp, Terrence P. Grady, Asst. Attys. Gen., Lansing, for defendants-appellants.

Peter W. Steketee, Grand Rapids, for Michigan United Conservation Clubs, Inc., amicus curiae.

LEVIN, Justice.

Littoral owners on 75-acre Big Chub Lake (in Bott ) ¹ and 60-acre Burgess Lake (in Nicholas ) seek, with the Department of Natural Resources, over the objections of Bott and the Nicholases, access through connecting creeks to nearby 35-acre lakes.

Bott owns all the land surrounding both 35-acre Linton Lake and the creek connecting it with Big Chub Lake. ² The Nicholases own 7/8 of the land surrounding 35-acre Dogfish Lake and all the land surrounding the creek connecting Dogfish Lake with Burgess Lake. ³ The creeks connecting the two lakes are, in both cases, relatively narrow and are shallow. The depth, at one point, is eight inches in Bott ⁴ and six inches in Nicholas.

The established law of this state is that the title of a riparian or littoral owner includes the bed to the thread or midpoint of the water, ⁵ subject to a servitude for commercial navigation of ships and logs, ⁶ and, where the waters are so navigable, for fishing. ⁷

In the instant cases, it appears that the creeks connecting the smaller with the larger lakes are too shallow to permit the flotation of logs. The creeks are, therefore, not navigable under the law as it has heretofore been stated, and only the littoral owners have a right to use the lakes.

Prior case law also provides that although there is a navigable means of access, the littoral owner of all the land surrounding a small inland dead-end lake has the sole right to use it. Winans v. Willetts, 197 Mich. 512, 163 N.W. 993 (1917).

The only recreational use heretofore recognized by this Court as an incident of the navigational servitude is fishing. ⁸

The dissenting opinion would change established rules of property law in the following respects:

(1) It would substitute a recreational-boating test for the log-flotation test of determining navigability stated in Moore v. Sanborne, 2 Mich. 519, 59 Am.Dec. 209 (1853).

(2) It would overrule the dead-end lake rule stated in Winans v. Willetts. ⁹

(3) It would enlarge the recreational use permitted in navigable waters beyond fishing to include "the right to make reasonable use of the lake's surface" for "navigation, fishing, and recreational use". ¹⁰

It is proposed to make the foregoing changes in property law to meet "current public needs". ¹¹ It has not been demonstrated, however, that a change of the law is needed to accommodate the needs of the public or that the proposed changes will, in general, do more than, as in the instant cases, enlarge the recreational access of one group of littoral owners and users who have access to one lake and desire to have access to another lake.

The rules of property law which it is proposed to change have been fully established for over 60 years, and the underlying concepts for over 125 years. Riparian and littoral land has been purchased in reliance on these rules of law, and expenditures have been made to improve such land in the expectation, based on decisions of this Court, that the public has no right to use waters not accessible by ship or wide or deep enough for log flotation, and that, even if there is navigable access to a small inland dead-end lake, the public may not enter over the objection of the owner of the surrounding land, and that the only recreational use recognized by this Court as an incident of the navigational servitude is fishing.

The Legislature can, if it is thought to be sound public policy to enlarge public access to and the use of inland waters, pass laws providing for the enlargement of the rights of the public in those parts of the state where the Legislature finds that there is a shortage of public access to inland rivers and lakes and for the compensation of landowners affected by the enlarged servitude.

In the cases decided in other jurisdictions where a recreational-boating test was approved and applied, the body of water was of sufficient depth and width to permit its actual use for recreational purposes. ¹²

The recreational-boating test, applied to a body of water of sufficient width and depth to be usable for recreational purposes, may not differ significantly from the log-flotation test. Adoption of the recreational-boating test, in such a case, might not significantly change or enlarge the servitude imposed by the log-flotation test. In the instant cases, however, the watercourses connecting the smaller with the larger lakes are not of sufficient depth to be used for recreational purposes. There is more water in a wash basin and considerably more in a bathtub than the eight inches in Bott and the six inches in Nicholas at the shallowest points.

What is here sought is not a recreational use of the intervening watercourses, but rather use of them as a means of passage to a body of water which can then be used for recreational purposes. This contrasts with the navigational servitude for the passage of ships and logs, which arose only if the waterway was of sufficient width and depth to permit its use for the commercial purpose thought to justify the servitude. Because the intervening watercourses in the instant cases are not of sufficient width and depth to be used for recreation, subjecting those watercourses to an enlarged servitude cannot be justified on the premise that there is a public need to use the watercourses for recreation in the same sense that there was a public need to use the rivers, lakes, and the larger streams for commercial navigation of ships and logs.

If it is thought that the needs of littoral owners or of the public having access to one navigable lake ¹³ for recreation on a nearby navigable lake justifies creation by judicial pronouncement of a right of passage between the lakes, it should make no difference whether the intervening waterway can be traversed by canoe or a twig or, indeed, whether there is only a trickle of water or, perhaps, even no water at all. Since the rationale of the proposed right of passage does not require that the intervening waterway be actually usable for recreation, the rationale would justify a further expansion to meet perceived public needs and the creation by judicial pronouncement of a right of passage or portage along a trickle of water, a desiccated gully, or other dry land between nearby navigable lakes.

The precept that a servitude will not be extended beyond the purpose for which it was granted explains the holding in Winans that a small inland dead-end lake is not open to the public, although there is a navigable means of access, if all the surrounding land is in unified ownership. In such a case, no ship can dock, and logs cannot be floated to or from the land without the permission of the owner. Where the owner objects, no use can be made of a right of passage, and, hence, there is no servitude for navigation although there is a navigable means of access to the dead-end lake.

Riparian and littoral owners have the right to share the reasonable use of the waters, ¹⁴ but the rights of the public as an incident of the navigational servitude are not co-extensive with the rights of riparian and littoral owners. While this Court, in Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926), and Attorney General ex rel. Director of Conservation v. Taggart, 306 Mich. 432, 11 N.W.2d 193 (1943), recognized fishing as an incident of the navigational servitude in inland rivers and lakes, it has held that fowling and hunting is not, ¹⁵ and that the ice belongs to riparian and littoral owners. ¹⁶

This Court has not been called upon to decide whether, and the extent to which, boating, as such, ¹⁷ and other recreational uses are incidents of the navigational servitude and whether a distinction should be drawn in that regard between (i) waters in which riparian or littoral owners do not own the bed (the Great Lakes), (ii) waters in which they own the bed and which are navigable in fact (by ship), (iii) waters in which they own the bed and which are qualifiedly navigable (by log flotation), and (iv), assuming adoption of a recreational- boating test, large and small inland rivers and lakes.

Fishing is a quiet sport. General boating and water recreation can, however, be intrusive and jarring.

Even if this Court decides to expand upon Moore v. Sanborne by substituting a recreational-boating test for the log-flotation test, and to overrule Winans concerning small inland dead-end lakes, thereby enlarging fishing rights in waters heretofore private because the means of access thereto is not log-floatable or the lake dead-ends, it should not assume that, but separately consider when the issue is presented and argued whether, the case has been made to allow general boating and water recreation,...