Delaney v. Pond, 34

• Decision Date: 24 December 1957
• Docket Number: No. 34,34
• Citation: 86 N.W.2d 816,350 Mich. 685
• Parties: Max W. DELANEY, Graham S. Patterson, Helen E. Patterson, Edward A. Butz, Mary E. Butz, Leonard R. Piantkowski, Sybil T. Piantkowski, Jalmer E. Kontas, Vicky S. Kontas, Raymond L. Hunter and Patricia E. Hunter, Plaintiffs and Appellants, v. Arthur R. POND, Verna Belle Averill, Noble Heitmeyer, Edlean Heitmeyer, Harold E. Royce, Dorothy I. Royce, Cecil E. Dumbrigue, Bertha H. Dumbrigue, James F. Piotrowski, Eari Lewis Anderson, Betty Jane Anderson, James E. Dean and Eleanor G. Dean, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 816

86 N.W.2d 816

350 Mich. 685

Max W. DELANEY, Graham S. Patterson, Helen E. Patterson Edward A. Butz, Mary E. Butz, Leonard R. Piantkowski, Sybil T. Piantkowski, Jalmer E. Kontas, Vicky S. Kontas, Raymond L. Hunter and Patricia E. Hunter, Plaintiffs and Appellants, v. Arthur R. POND, Verna Belle Averill, Noble Heitmeyer, Edlean Heitmeyer, Harold E. Royce, Dorothy I. Royce, Cecil E Dumbrigue, Bertha H. Dumbrigue, James F. Piotrowski, Eari Lewis Anderson, Betty Jane Anderson, James E. Dean and Eleanor G. Dean, Defendants and Appellees.

No. 34.

Supreme Court of Michigan.

Dec. 24, 1957.

Robert D. Heitsch, Pontiac, for plaintiffs and appellants.

Beer, Rowston & Currah, Pontiac, for defendants and appellees.

Before the Entire Bench.

KELLY, Justice.

Plaintiffs are owners of lots in the interior of a subdivision, and defendants own lots in the same subdivision facing on Clinton river. Plaintiffs' action in chancery is to determine rights from the grant of an easement. Plaintiffs appeal from the decree of Hon. Clark J. Adams, circuit judge of Oakland county, providing:

'It Is Ordered, Adjudged and Decreed defendants are restrained from interfering with plaintiffs' right to access to the water of the Clinton River (new channel) and Loon Lake, for the purpose of swimming, fishing, bathing, wading, and boating in those waters.

'It Is Further Ordered, Adjudged, and Decreed the request of plaintiffs for an injunction restraining the defendants from interfering with the plaintiffs' sun bathig and permanent mooring of boats on the property included in the easement is denied.'

The easement in question is set forth in the dedication of the plat as follows:

'And that the Park and Outlot 'A' and the 10-foot easement along the rear of lots 23 to 31, both inclusive, all as shown on said plat, and all riparian rights appurtenant to all lots and property in said subdivision, are hereby dedicated only to the common use and enjoyment of the owners of all lots in said subdivision.'

Restriction number 15, imposed on all the lots in the subdivision, states that:

'A 10-foot easement has been provided for along the edge of the Clinton River (new channel) over and across lots 23 to 31, inclusive, access to this easement being from the ares designed as 'Park' all of which is shown on the recorded plat. This easement is provided for access to the River and shores of Loon Lake by property owners in this subdivision.'

The question presented in this appeal is whether this 10-foot easement, created to provide access to the river, gave to plaintiffs the right to moor boats on said easement or submerged lands of the owners of the servient estate (appellees).

The rights granted to plaintiffs to make use of the water granted to plaintiffs no rights to the bordering land beyond that necessary to permit enjoyment of the water rights. In Douglas v. Bergland, 216 Mich. 380, 185 N.W. 819, 20 A.L.R. 197, we held that the right to fish in the waters of a navigable lake does not carry with it the right to trespass upon the fact land of a riparian owner or to appropriate...