Thies v. Howland

• Decision Date: 10 January 1986
• Docket Number: Docket No. 73039
• Citation: 380 N.W.2d 463,424 Mich. 282
• Parties: Lee THIES and Kathleen Thies, husband and wife, Plaintiffs-Appellees, v. Jeffrey N. HOWLAND and Linda J. Howland, husband and wife; and Curtis Vrieland and Nancy Vrieland, husband and wife, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 463

380 N.W.2d 463

424 Mich. 282

Lee THIES and Kathleen Thies, husband and wife, Plaintiffs-Appellees, v. Jeffrey N. HOWLAND and Linda J. Howland, husband and wife and Curtis Vrieland and Nancy Vrieland, husband and wife, Defendants-Appellants.

Docket No. 73039.

Supreme Court of Michigan.

Argued June 6, 1985.

Decided Dec. 30, 1985.

Released Jan. 10, 1986.

Brown and Winckler by James L. Winckler, Lansing, for plaintiffs-appellees.

Varnum, Riddering, Schmidt & Howlett by Dennis C. Kolenda, Grand Rapids, for defendants-appellants.

CAVANAGH, Justice.

The parties are owners of real property located in a subdivision on the south shore of Gun Lake in Barry County. The plat of the subdivision, originally recorded in 1907, indicates a twelve-foot wide "walk" that runs immediately along the lakeshore. The first twenty lots in the subdivision abut this walk. A second row of twenty lots lies to the south of the first row. These rows are separated by a sixteen-foot wide "driveway." Another driveway separates the second row from a third row of forty-three smaller lots. Twelve-foot wide "alleys" are located after every fourth lot in the first and second rows. These alleys link the driveways and walk and were designed to provide all subdivision owners with access to the lake. A notation on the plat maps states "that the Driveways, Walks and Alleys shown on said plat are hereby dedicated to the joint use of all the owners of the plat."

In 1977, plaintiffs Lee and Kathleen Thies purchased lots 16 and 17 located in the first row. Defendants Jeffrey and Linda Howland purchased lot 25 and a portion of lot 24 in 1978. In the same year, defendants Curtis and Nancy Vrieland purchased lot 23 and portions of lots 22 and 24. Defendants' lots are located in the second row.

An alley was originally located between lots 16 and 17. However, a prior owner of these lots built a cottage which encroached upon the alley. In a 1975 consent judgment entered into by the parties' predecessors in title, an eight-foot wide easement was created across the west side of lot 16.

In 1978, plaintiffs constructed a seasonal dock extending from the shore into the lake to accommodate their boat. The dock was located in front of the western portion of plaintiffs' property. Defendant Howlands anchored their boat approximately 100 to 150 feet from the shoreline in front of the easement. In April 1979, the Howlands and Vrielands jointly constructed a fifty to sixty-foot seasonal dock at the end of the easement to accommodate their boats. The distance between plaintiffs' and defendants' docks was approximately twelve to sixteen feet.

In June 1979, plaintiffs filed suit, seeking to enjoin defendants from maintaining the dock and anchoring their boats in the lake. Defendants counterclaimed, requesting that plaintiffs be enjoined from interfering with defendants' use of the easement or, in the alternative, that defendants be permitted to use the alley between lots 16 and 17. Following a bench trial, the trial court concluded that defendants could use the lake for such recreational activities as boating, fishing and sunbathing, and could anchor their boats as long as they did not interfere with plaintiffs' reasonable use and enjoyment of their property. However, defendants were enjoined from erecting a dock. The Court of Appeals affirmed, but modified the injunction to prevent defendants from anchoring their boats off the terminus of the easement. ¹

We granted defendants' delayed application for leave to appeal and directed the parties to include among the issues to be briefed "whether the Court of Appeals erred in determining that the plat dedication did not convey to defendant landowners riparian rights which are exclusive to riparian owners." 419 Mich. 934 (1984).

I

Land which includes or is bounded by a natural watercourse is defined as riparian. ² Persons who own an estate or have a possessory interest in riparian land enjoy certain exclusive rights. Thompson v. Enz, 379 Mich. 667, 677-679, 154 N.W.2d 473 (1967) (opinion of Kavanagh, J.). ³ These include the right to erect and maintain docks ⁴ along the owner's shore, Hilt v. Weber, 252 Mich. 198, 226, 233 N.W. 159 (1930); Thompson, Real Property (1980 Replacement), Secs. 274, 280, pp. 453-454, 506-507; 3 American Law of Property, Sec. 15.35, pp. 874-875, and the right to anchor boats permanently off the owner's shore. Hall v. Wantz, 336 Mich. 112, 117, 57 N.W.2d 462 (1953). Nonriparian owners and members of the public who gain access to a navigable waterbody have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing and swimming. An incident of the public's right of navigation is the right to anchor boats temporarily. Delaney v. Pond, 350 Mich. 685, 688, 86 N.W.2d 816 (1957); Hall, 336 Mich. 116-117, 57 N.W.2d 462.

Since defendants' lots do not touch the shore of Gun Lake, their land is not riparian. Defendants argue, however, that the plat's dedication of the walk and alleys to "the joint use of all the owners of the plat" gave them title to these lands in common with the other subdivision owners. Since the walk and alleys in the first row are in contact with the water, defendants allege they and the other owners are riparian proprietors entitled to erect docks. Defendants believe that plaintiffs' lots are not riparian land because they merely abut the walk. Plaintiffs are riparian owners only because they are co-owners of the walk. Defendants conclude that plaintiffs cannot interfere with the reasonable exercise of their riparian rights.

Even if we conclude that defendants merely have an easement interest in the walk and alleys, ⁵ they may still prevail. Plaintiffs cannot prevent defendants from erecting a dock or permanently anchoring their boats if these activities are within the scope of the plat's dedication, McCardel v. Smolen, 404 Mich. 89, 97, 103, 273 N.W.2d 3 (1978), and do not unreasonably interfere with plaintiff's use and enjoyment of their property. The ownership of the walk and alleys and the scope of the dedication of these lands are interrelated, but distinct inquiries.

II

A

We first examine defendants' claim that they are riparian owners because they are tenants in common of the twelve-foot wide lakeshore walk. The trial court concluded that plaintiffs' property was not separated from the water and that the walk was merely an easement. The Court of Appeals relied primarily upon Croucher v. Wooster, 271 Mich. 337, 260 N.W. 739 (1935), to reach the same conclusion. Defendants acknowledge that Croucher held that a lot separated from the water by a highway that is contiguous to the water is riparian land. However, defendants believe that Croucher should be applied only where the way has been dedicated to the public. Since the walk here is to be used only by the subdivision owners, defendants believe that the general rule requiring actual contact with the water applies and that plaintiffs' lots are not riparian land.

The cases which have applied Croucher only involved ways dedicated to public use. ⁶ Nevertheless, we believe that Croucher is equally applicable to ways dedicated to the private use of a finite number of persons. The relevant inquiry is not who may use the way, but whether the abutting land owner owns the fee in the way which separates his property from the water:

"While there is some authority to the contrary, the majority of the courts have followed the rule that land which is separated from water by a highway or street the fee of which is in the public is not riparian land; but where the fee in the land covered by the highway or street is in the owner of the land, riparian rights remain in such owner." 78 Am.Jur.2d, Waters, Sec. 273, p. 716.

See also 79 Am.Jur.2d, Wharves, Sec. 5, p. 179; 1 Farnham, Water & Water Rights, Sec. 144, pp. 666-667; Plager & Maloney, Multiple interests in riparian land, subdivision platting, and the allocation of riparian rights, 46 U.Det.J.Urb.L. 41, 50 (1968).

The exact boundaries of plaintiffs' property are not described in any documents relating to the past or present ownership of the land. These documents merely refer to lots 16 and 17 of the recorded plat. When a conveyance refers to a plat which represents lots as bounded by a street and describes the lots by numbers, the reference is equivalent to express language in the deed giving the street as a boundary. Loud v. Brooks, 241 Mich. 452, 454, 217 N.W. 34 (1928). Unless a contrary intent appears, owners of land abutting a street are presumed to own the fee in the street to the center, subject to the easement. Id., Smeberg v. Cunningham, 96 Mich. 378, 385, 56 N.W. 73 (1893). However, this rule is not so easily applied where the street is contiguous to the water since there are abutting lots only on one side. Plager & Maloney, 46 U.Det.J.Urb.L. 51. The crucial question is who owns the other half of the way which is clearly riparian property--the plattors, the "front lot" owners, or the persons to whom the way is dedicated?

Although there is conflicting authority in other jurisdictions, the issue was settled in this state by Croucher. There, the dedication of the plat described the plattors' land as lying south of a public highway that paralleled the lakeshore. The two lots at issue abutted the highway which, at those points, was in direct contact with the water. All of the deeds described the lots only by the lot numbers noted on the plat. The plattors conveyed each lot at issue twice. The question presented was whether the plattors had parted with all of their interest in each lot, including their riparian rights, under the first conveyance. This Court concluded that a fee interest in each lot, which included the adjoining portion of the highway and the appurtenant riparian rights, passed to the first grantees, subject to the public's use of the highway:

"Since lot 26 fronted upon the highway at a place where...