Holton v. Ward

• Decision Date: 23 January 2014
• Docket Number: Docket No. 308454.
• Citation: 847 N.W.2d 1,303 Mich.App. 718
• Parties: HOLTON v. WARD.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 718

847 N.W.2d 1

HOLTON

v.WARD.

Docket No. 308454.

Court of Appeals of Michigan.

Submitted Jan. 9, 2014, at Detroit.

Decided Jan. 23, 2014, at 9:00 a.m.

UAW–GM Legal Services Plan (by Carol Nosanchuk Birnkrant and Frederick L. Miller) for plaintiffs.

Butzel Long PC, Bloomfield Hills (by Patrick Karbowski and Susan Lynn Johnson) and The Smith Appellate Law Firm (by Michael F. Smith) for defendant.

Before: SAAD, P.J., and CAVANAGH and K.F. KELLY, JJ.

SAAD, P.J.

In this alleged riparian rights case, plaintiffs, James and Nancy Holton, appeal the trial court's grant of summary disposition to defendant, Carole Ward. Defendant cross-appeals because the trial court declined to hold that plaintiffs' lawsuit was frivolous and, therefore, denied defendant's motion for sanctions. Because plaintiffs have no riparian rights to the man-made body of water at issue, we affirm the trial court's grant of summary disposition. And because plaintiffs' suit is frivolous, we reverse the trial court's refusal to grant sanctions.

I. NATURE OF THE CASE

Plaintiffs and defendant own adjacent land parcels once owned, and subsequently divided and sold by, a common owner. To prevent his cattle from walking through a muddy wetland, the common owner dredged part of the wetland and built an earthen dam, which allowed surface water to collect in the wetland. His actions created a very large pond, which is now split between plaintiffs' and defendant's properties.

Plaintiffs claim the right to use that portion of the pond on defendant's property under the theory of riparian rights,¹ despite the fact that (1) the pond is artificial and man-made, and (2) their parcel does not abut a natural watercourse, but merely this artificial pond.

Michigan law is clear that riparian rights adhere to land that abuts a natural watercourse, and not, as here, to artificial or man-made bodies of water. Yet despite this well-established Michigan precedent and an earlier ruling by the Michigan Department of Environmental Quality (DEQ) that rejected a similar riparian rights claim brought by Mr. Holton to gain access to defendant's property, plaintiffs once again seek to establish riparian rights to gain access to property which is rightfully defendant's.

We hold that plaintiffs have no riparian rights to gain access to that portion of the pond that forms part of defendant's property. We accordingly affirm the part of the trial court's ruling that reflects this black-letter law. Moreover, because, in an earlier decision, the DEQ ruled that Mr. Holton had no riparian rights to access and disturb defendant's peaceful enjoyment of her property rights, we hold that collateral estoppel also bars plaintiffs' claim. In light of the DEQ ruling and well-established Michigan precedent, plaintiffs and their counsel knew or should have known that this claim was frivolous and vexatious, and therefore the trial court should have granted appropriate sanctions. Because it failed to do so, we remand for a determination of appropriate sanctions.

We so hold not only because of the obvious frivolity of plaintiffs' case. A landowner should not have to confront the Hobson's choice of either repeated expensive litigation to reestablish the right of peaceful enjoyment of her property, or the abandonment of these historically cherished and valued property rights.

II. FACTS AND PROCEDURAL HISTORY

The parties own adjacent land parcels, which they obtained from a common owner.In the 1950s, the common owner sought to drain part of a wetland on his property, and did so by dredging a portion of the wetland and constructing an earthen dam.² This new infrastructure captured surface water created by rain and melted snow. In the process, it transformed what had been a muddy wetland into a very large pond.

The wetland-pond covers approximately 20 acres. When the common owner divided his lot into two parcels, the wetland-pond was also split in two, with part on plaintiffs' property and part on defendant's. This area of plaintiffs' and defendant's properties has been the subject of two prior lawsuits, both brought by Mr. Holton: (1) a 2003 action before the Oakland County Circuit Court to force defendant's predecessor in interest to remove a culvert that lowered the water level of the wetland-pond area (which Mr. Holton won), ³ and (2) a 2004 suit before the DEQ to prevent defendant's predecessor in interest from, among other things, maintaining a fence in the wetland area that prevented Mr. Holton from trespassing on the portion of the wetland-pond on defendant's property (which Mr. Holton lost). In the latter action, Mr. Holton claimed that the fence would violate his “water rights” in the wetland-pond—an argument that the DEQ rejected.⁴

Undeterred by this legal setback, plaintiffs launched this lawsuit in 2011 in the Oakland Circuit Court, in yet another effort to gain access to the portion of the wetland-pond on defendant's property (currently barred by defendant's fence), and claimed that defendant's denial of access violates plaintiffs' riparian rights. Defendant sought summary disposition under MCR 2.116(C)(7) and 2.116(C)(8), and in support asserted that plaintiffs' complaint is barred by collateral estoppel and res judicata because the DEQ ruled that plaintiffs have no riparian rights in this body of water. She also sought sanctions against plaintiffs for bringing a frivolous lawsuit because (1) plaintiffs knew when they brought this suit that well-established Michigan law holds that plaintiffs have no riparian rights to a man-made body of water, and (2) that the DEQ so ruled in Mr. Holton's earlier litigation.

The trial court correctly rejected plaintiffs' claims and granted defendant's motion for summary disposition. It held that collateral estoppel barred plaintiffs' action because the 2006 DEQ ruling stressed that defendant had no riparian rights in the large wetland-pond, because the wetland-pond was an artificial—i.e., man-made—waterway. The trial court, however, denied defendant's request for sanctions, holding that the riparian-rights issue was “arguable.”

Plaintiffs appeal and argue that the trial court erred when it granted defendant's motion for summary disposition. They claim that they possess riparian rights in the wetland-pond, and that their suit should not have been collaterally estopped on the basis that they lack riparian rights. Plaintiffs also raise a new argument on appeal, asserting that Part 301 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30101 et seq.,which concerns inland lakes and streams, provides them with a statutory basis for riparian rights in the wetland-pond. Defendant cross-appeals, and reasserts (1) that res judicata (as well as collateral estoppel) bars plaintiffs' claims, and (2) the trial court erred when it denied her request for sanctions against plaintiffs.

III. ANALYSIS

We review de novo a trial court's decision on a motion for summary disposition, Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008), and under MCR 2.116(C)(7) we aim to determine whether the moving party was entitled to judgment as a matter of law, Stoudemire v. Stoudemire, 248 Mich.App. 325, 332, 639 N.W.2d 274 (2001).

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a plaintiff's claim based on the pleadings alone to determine whether the plaintiff has set forth a claim on which relief may be granted. Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd., 298 Mich.App. 200, 206, 828 N.W.2d 459 (2012). “Summary disposition under subrule (C)(8) is appropriate if no factual development could justify the plaintiff's claim for relief.” Id. (quotation marks and citation omitted).

A. RIPARIAN RIGHTS

Claims of riparian rights are common-law claims and they are, accordingly, reviewed de novo by our Court. Mich. Citizens for Water Conservation v. Nestlé Waters North America Inc., 269 Mich.App. 25, 53, 709 N.W.2d 174 (2005) (opinion by Smolenski, J.), aff'd in part and rev'd in part on other grounds 479 Mich. 280, 737 N.W.2d 447 (2007). “ ‘[R]iparian rights' are special rights to make use of water in a waterway adjoining the owner's property.” Dyball v. Lennox, 260 Mich.App. 698, 705, 680 N.W.2d 522 (2004) (citations and quotation marks omitted). Among other privileges, these rights include: the right to make natural and artificial use of the water in the watercourse; ⁵ the right to construct and maintain a dock; ⁶ and the right to use the entire surface of the watercourse for recreational purposes.⁷ Such rights are distinct from other state-law water-related legal privileges, such as the public right of recreational access, which allows for qualified public use of waterways that are navigable under Michigan law.⁸

Michigan has a straightforward rule governing riparian rights: riparian rights attach to land that abuts or includes a natural watercourse—i.e., a “natural stream of water fed from permanent or periodical natural sources and usually flowing in a particular direction in a defined channel, having a bed and banks or sides, and usually discharging itself into some other stream or body of water” Kernen v. Homestead Dev. Co., 232 Mich.App. 503, 511 n. 5, 591 N.W.2d 369 (1998) (citations and quotation marks omitted). Riparian rights do not attach to land that abuts an artificial watercourse—i.e., “waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes, and the like.” Thompson, 379 Mich. at 679, 154 N.W.2d 473 (opinion by T.M. Kavanagh, J.), citing 4 Restatement Torts, § 841, p 321. Stated another way, “it is clear under Michigan law that no riparian rights arise from an artificial body of water.” Persell v. Wertz, 287 Mich.App. 576, 579, 791 N.W.2d 494 (2010).

As Justice Kavanagh noted in Thompson, this rule is followed by many of our sister states,⁹ and ultimately has its origins in the most ancient property...