« Socio-Emotional Learning in Law School | Main | Compliance & Diversity »

Thursday, July 05, 2018

The Law and Custom of Riparian Rights

If you want a break from constitutional law, this post is for you. 

We spend our summers by a lake in Michigan, and every year I am reminded when I get here that riparian rights are under-appreciated as grist for the academic “law and society” mill.  They are kind of like space savers in crowded urban street parking spaces that people have shoveled out in after blizzards (see Susan Silbey's article); the difference is that I don't think somebody with a single family home and no driveway would have thought that there was a legal right to the "street bottom" extending out from the property.  No, there the "property" right accrues on account of the work invested in clearing the spot.  And, as Susan's study notes, the property is denoted with all sorts of artifacts: "old chairs, traffic cones, milk crates, light weight tables, dead house plants, or other noticeably bulky objects."
Riparian (1)
In contrast, riparian rights are law, not custom.  And they are really cool - for a lawyer, kind of the gift that just keeps giving.  

What you see in the picture to the left is the northwest section of Lake Charlevoix.  Under Michigan law, to figure where the riparian rights go, you have to first decide what the shape of the lake is, circular, oblong or irregular.  Lake Charlevoix in total is irregular, but this section of the lake is circular, so one's riparian rights get determined by drawing a line from the point where the boundary line of the property meets the lakeshore to the center of the lake.  Aalsburg v. Cashion, 14 Mich. App. 91, 100 (1968). What we see here is the riparian area for a lot with about a 150 foot frontage.  

If you own riparian land, as here, you have certain exclusive rights to the lake bottom in your riparian area.  One is to erect and maintain a dock and to permanent anchorage off your shore. Lake Charlevoix is a navigable waterway with access to Lake Michigan and ultimately to the Atlantic Ocean, so everybody has the right to use the surface of the lake, including the right to temporary anchorage, but not to the lake bottom.  In other words, if you are a member of the public, you can swim through somebody's riparian area, but you don't have the right to wade with your feet on the bottom.  On the other hand, the lake at that spot in the middle is about 110 feet deep, so one's practical use of the lake bottom as riparian owner is somewhat limited.  And, finally, you can't use your riparian rights to cause hazards to navigation, or to unduly interfere with the riparian rights of others.  Thies v. Howland, 424 Mich. 282, 287-88 (1986); West Michigan Dock & Market Corp. v. Lakeland Investments, 201 Mich. App. 505, 513 (1995).  So setting a permanent mooring with a swim raft a mile out into the lake, just so you can get away from it all, is likely going to be problematic as well.

Okay, with that background, let's get to the really interesting clash of custom and law after the break, where we'll once again see that there's lots of unauthorized malpractice of law goin' on round here.

 Here is the hypothetical conflict between law and custom.  As indicated in the diagram below, A, B, and C all own lakeshore property.  A and C have their docks as shown.  B decides that putting the dock in the center of the property blocks his magnificent view of the lake.  B thinks that he should be able to put out a dock perpendicular to the shoreline anywhere on his property, because the black dotted line what he thinks makes sense because docks always are perpendicular to the shore.  A is annoyed because she used the C side of her dock as a swimming area, and the B side for her boat.  With B's dock where it is, A is going to have a hard time maneuvering her boat into the space. 

Riparian-PPTBut B is mistaken (and it's a common mistake, made even by surveyors who don't know the law). B's actual riparian rights are bounded by the red lines.

A has two potential legal claims against B. The first one is that B has unreasonably used his riparian rights so as to interfere with A's use. But that is going to be a toss-up, because B can argue that A isn't denied use of the area; A just has to dock the boat on the other side.

The second legal claim is not a toss-up at all.  B is a trespasser.  Summary judgment for A.

Here, however, is the law and custom problem for A.  A has to be careful what she wishes for, because winning her case against B means that C has exactly the same claim against A.  And that domino effect will continue all along the lake.  If A has to use law as a remedy, what was a perfectly fine arrangement for many people has the potential to get screwed up because one person (B) was intransigent.

By the way, in Michigan, Lake Charlevoix is known as an "inland" lake. It turns out that the law is different if you own property that abuts Lake Michigan or another of the three other Great Lakes that border the state.  This is because the Great Lakes are considered to be the equivalent of an ocean, and the common law of the sea applies.  The state owns the lake bottom up to your high water mark. Under the "public trust doctrine," the question will be whether somebody can walk across your beach at low tide. The answer is "yes," under Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58 (2005).  But Glass explicitly limits its discussion to the Great Lakes and not to "inland lakes."

In our next installment, we'll be discussing the law of capture in Arkansas oil and gas doctrine, and whether it applies to drilling for salt water ions like bromine (NaBr).  Or if Daniel Plainview were in Arkansas and in the bromine drilling business, could he drink your milkshake?

UPDATE:  I take the point of the commenter.  The docks are not perpendicular to the shoreline and I shouldn't have used that word because the shoreline is curved.  The real point is that the docks align with the property lines between the A, B, and C lots.  

Posted by Jeff Lipshaw on July 5, 2018 at 04:23 PM | Permalink

Comments

Normally I don’t do comments on my own posts, but I don’t think it’s actually that geometric. An ellipse shaped lake is probably closer to circular than one that is “oblong”. My impression looking at the cases was that oblong means kind of rectangular. So you’d slice it with a line down the long center axis. The reality is I think that nobody ever really maps all of the riparian lake bottom. That’s why it’s the gift that keeps giving.

Posted by: Jeff Lipshaw | Jul 5, 2018 9:46:55 PM

A nit-pick about your hypothetical: the none of the docks (as drawn) are perpendicular to the shoreline. If they were and if the section lake were truly circular, then they would never cross into someone else riparian land. (By definition, the normal lines would be radial lines.)

Perhaps I'm missing something about how "circular" is defined legally. In the map image, the sector shown is nothing like the local circular sector. Is "circular" defined differently for legal purposes than it is in geometry? Also, what happens as the shoreline changes, either due to natural forces or engineering?

Posted by: HokieEngineer | Jul 5, 2018 8:00:49 PM

Post a comment