Burt v. Munger
| Decision Date | 03 June 1946 |
| Docket Number | No. 44.,44. |
| Citation | 314 Mich. 659,23 N.W.2d 117 |
| Parties | BURT et al. v. MUNGER. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.
Suit by Wellington R. Burt and another against Clem Munger for a declaratory decree as to the respective rights of the parties, as riparian owners, to the use of the waters of St. Marys Lake and the land under such waters. From a decree granting plaintiffs the right to build a retaining wall on lake bottom in front of their property, but denying them the right to fill in a portion of lake bottom, defendant appeals and plaintiffs cross-appeal.
Decree affirmed in part and in part vacated, and decree entered in accordance with opinion.
Before the Entire Bench, except NORTH, J.
Allen & North, of Battle Creek, for appellant.
Charles H. Burnham, of Battle Creek, for cross-appellants.
This case involves the respective rights of the parties, as riparian owners, to the use of the waters of St. Marys Lake, Calhoun county, Michigan, and the land under such waters. For the purpose of clarifying the situation plaintiffs filed suit under the provisions of Act No. 36, Pub.Acts 1929, Comp.Laws 1929, § 13903 et seq. (Stat.Ann. § 27.501 et seq.), seeking a declaratory decree. Defendant filed his answer to the petition and the controversy was submitted to the trial court on an agreed statement of facts.
From said statement it appears that the lake in question is approximately seveneighths of a mile in length and about onefourth of a mile in width at its widest point. It has no inlet; but there is an outlet, dry most of the year, through which during wet seasons excess waters flow into ponds and upon low lands. Across this outlet is a dam which has been maintained at its present level for the past 60 years.
In 1936, plaintiffs became the owners of land on the north shore of the lake and beneath the waters extending along the shore for a distance of 1,095 feet. At the time of their purchase of the property the water in the lake was lower than at the present time, being materially below the high water level as maintained by the dam in wet seasons. Plaintiffs proceeded to improve their property, set out trees, and constructed a small artificial pond. In 1943, the waters of the lake rose to such a height that the dam in the outlet was overflowed, and low land bordering the lake was flooded. It is agreed that lands of the plaintiffs so flooded in 1943 constituted a portion of the original lake bottom. The matter is expressly covered in the stipulation filed, which contains the following clause: ‘It is further agreed by plaintiffs and defendant that the question of the high water level of said lake is not here at issue and that for the purposes of this action, it can be conceded that the present level of said lake is its true level and that the lands of plaintiffs presently covered with water are part of the original lake bed.’
On plaintiff's property for a distance of approximately 390 feet along the water's edge, is a bank on which trees have been planted. The raising of the waters of the lake in 1943, and thereafter, has resulted in washing away the soil of the bank to such an extent that the destruction of said trees is threatened. Plaintiffs wish to construct a cement retaining wall on the lake bottom a few feet from the water's edge and fill in between the wall and the shore line for the purpose of protecting their property. They also wish to fill in a portion of the lake bottom, approximately 50 by 150 feet in size, on which the water is shallow and at times becomes stagnant. In their petition plaintiffs ask that a decree be entered granting them the right to make the desired improvements.
Defendant is also the owner of land on and beneath the lake and it is conceded that he has ‘full riparian rights.’ It is claimed in his behalf that plaintiffs are not entitled to deprive him of the use of any portion of the surface of the water of the lake, as it now exists; that he has the rights of boating and fishing on the entire lake; and that the alterations plaintiffs desire to make, if carried out, will in fact deprive him os such rights.
The trial court, following a hearing, entered a decree granting to plaintiffs the right to build a wall on the lake bottom in front of their property, at a reasonable distance from the shore, ‘to protect their lands and property from destruction by erosion.’ Plaintiffs were, however, denied the right to fill in the submerged parcel referred to, containing approximately 7,500 square feet, it being the opinion of the trial court that plaintiffs were not entitled to deprive defendant of the right to use any part of the surface of the lake for boating and fishing. From such decree defendant has appealed, and plaintiffs have filed a cross-appeal. The questions presented for determination on the record are: (1) Whether plaintiffs are entitled to construct the desired wall on the lake bottom; and to fill in between said wall and the shore line, in order to protect their property; and (2) Whether plaintiffs may, as against the asserted rights of the defendant, fill in the parcel above referred to, which, under the agreed statement of facts, is a part of the lake bottom, so as to raise the surface of such parcel above the water level.
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Anglers of Ausable v. Dept. of Environmental Quality
...However, the only authority defendants cite in support of this proposition does not address this specific point. See Burt v. Munger, 314 Mich. 659, 23 N.W.2d 117 (1946); Hyatt v. Albro, 121 Mich. 638, 80 N.W. 641 (1899). In any event, the proposed discharge would have a qualitatively differ......
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