Parks in Plats Causing Problems

This office gets calls all the time about the legal rights or prohibitions involving platted parks in subdivisions. Unfortunately, there are no easy answers. A new Court of Appeals decision highlights the issue.

In Virginia Park Subdivision Association v Hair, the park-side lot owners had a dispute with the back-lot owners in the small subdivision on Walled Lake in Oakland County. The owners of Lots 12, 13, 14, and 15 claimed that the rest of subdivision could not use the park land to install docks and moor boats. The rest of the subdivision claimed equal rights.

The 1918 plat read that  the “park as shown on said plat [is] hereby dedicated to the use of lot owners only.” It explains nothing more. Being a nearly 100 years old plat, the original creators of the subdivision are long since deceased.

This vague language and the age of most up-north and lake-side plats is extremely common in neighborhood disputes like these.

Even more unique, no parcel is adjacent to the water’s edge, which is traditionally the way for determining who has riparian or littoral rights. See 2000 Baum Family Trust v Babel, 488 Mich 136, 143 (2010) (owners of riparian land hold certain exclusive rights, including “the right to erect and
maintain docks, as well as to permanently anchor boats off the shore.”); see also  Morse v Colitti, 896 NW2d 15, 22 (Mich Ct App 2016). (Full disclosure, this law office represents Mr. and Mrs. Colitti).

Therein lies the rub.

The trial court, in a spectacularly surprising decision, held that none of the lot owners have riparian rights. An appeal ensued.

From my point of view, if there had been no dedication, then the case would have been an easy one–the trial court would have been right in that none of the lots owners (unless they had a deed to the park) owned the property.

But it is never that easy.

The three judge panel correctly explained that “the interposition of a fee title between upland and water (i.e. the existence of someone else’s land) destroys riparian rights, or rather transfers them to the interposing owner.” However, Michigan law has created a slew of unclear exceptions to this rule, including for highways or a walking path. This is because attorneys for property owners closer to the water have tried to create more exceptions. In this case, there is a park.

The law on the interposing “park” is less than clear. The problem currently is that court cases keep going in different directions. Sometimes a panel of judges find that the existence of a park is similar to a walkway or highway, sometimes they do not.

The reason, I believe, this legal madness continues is because the courts never focus on the key issue–who owns the land abutting the lake. Attorneys for the lots owners closer to, but not on, the water conveniently “forget” that key point. Riparian rights run to the owner of the waterfront property, which can be shared with a whole neighborhood via a dedication or an easement. Moreover, prescriptive rights can come into play too.

In this case, the panel decided not to decide and sent it back for more argument in the trial court. Cases like these are important because the trial judge’s decision could literally destroy tens or hundreds of thousands of dollars of property value for the backlotters.

My advice to you (if you are in these kinds of legal fights) is do not hire a general practice attorney; get a riparian rights attorney who specializes in the nuanced understanding of Michigan water law.

Michigan is a Water Wonderland has posted a unique story involving water usage in Michigan. For the recent ten year span, Michigan residential and commercial users consumed 38.5 trillion gallons of water from the Great Lakes. In perspective that’s about 59 million Olympic swimming pools. The Great Lakes (not including underground water sources) has about 6,000,000,000,000,000 gallons of water.

Big thanks to the continental ice glacier for this sweet quality of life resource. Such a resource provides the legal “riparian” right to extract water for domestic (i.e. household) use.

Interesting, only a tenth of utilized Great Lakes water was for residential or public water supplies while over 85 percent was consumed for, of all things, electricity generation.

But despite the high extraction of water from the Great Lakes, we won’t be running out of water anytime soon. Water levels in 2016 are up from last year’s reduction.

There Is No Right to Being a “Beach Walker” on an Inland Lake

Michigan is blessed in having so many lakes. Minnesota proudly crows it is the land of 10,000 lakes. Michigan has more than 11,000, including a handful of “Great Lakes” with 6 quadrillion gallons of water!

However, one falsity which never seems to be corrected is the notation that the public has the right to walk, stroll, or take an evening constitution around the shore of an inland lake. It just simply is not true.

Continue reading “There Is No Right to Being a “Beach Walker” on an Inland Lake”

OLC Reclaims Riparian Rights for Lake Front Property by Court Decision

After litigating for more than a year, Outside Legal Counsel PLC has re-established deeded-away riparian rights to the shorelands of an inland lake in West Michigan. The court’s ruling paves the way for the landowner to begin enjoying full riparian rights, including maintaining a seasonal dock. Continue reading “OLC Reclaims Riparian Rights for Lake Front Property by Court Decision”

An Overused Private Easement Permits for an Adverse Possession Claim

The Court of Appeals in Prince v. Wedemeier has held a distinction between two types of express easements now exists: a prescriptive right by overuse is allowed for one but not the other. Continue reading “An Overused Private Easement Permits for an Adverse Possession Claim”

Dock Rights May Be Established by Prescriptive Easement

A question long unanswered under Michigan law is whether the right to the placement of a seasonal dock can be established using the equitable doctrine of prescriptive easement? The answer is yesContinue reading “Dock Rights May Be Established by Prescriptive Easement”

The Land Division Act Plat Correction Procedures Cannot Create Nonexisting Property Rights

The Court of Appeals affirmed what we’ve long argued: the plat correction procedures of the Michigan Land Division Act cannot be used to create new property rights.

In Studley v Township of Hill, a lot owner who abuts a privately dedicate 16-foot wide Beachway running from the public Lake Shore Drive to the edge of Rifle Lake. It was only the private access for the backlotters of the Plat of Shady Shores Park Subdivision to access Rifle Lake. Continue reading “The Land Division Act Plat Correction Procedures Cannot Create Nonexisting Property Rights”

Rights for Docking By Overusing a Common Easement Fails in Prescription Suit

The case of O’Brien v Hicks  (COA No. 307332) involves one of two parkways located beside Otsego Lake in the Hazel Banks Plat, named “Parkway 6-7.”   Continue reading “Rights for Docking By Overusing a Common Easement Fails in Prescription Suit”

The Horseshoe Lake Corp Decision Discusses How A Park Is Different Under Riparian Law

The case of HORSEHOE LAKE CORP v CARLSON (COA No. 304695)  involves a dedicated park on Horseshoe Lake as part of the Leocadia Park subdivision.  Continue reading “The Horseshoe Lake Corp Decision Discusses How A Park Is Different Under Riparian Law”

A Private Right-of-Way Easement Leaves Owner the Right to Remaining Use of Property

In Bedford v Rogers (COA No. 299783), the individual lots in the Glen Eyrie subdivision do not extend to the shore of Crystal Lake. Rather, the plat depicts a 100-foot wide strip of land, running the entire length of the subdivision and designated as the “Lakeway,” between the south border of the platted lots and Crystal Lake dedicated to the common use of property owners in the Glen Eyrie plat.  Continue reading “A Private Right-of-Way Easement Leaves Owner the Right to Remaining Use of Property”