Thompson v. Enz , 379 Mich. 667 ( 1967 )

T. M. Kavanagh, J.

Plaintiffs filed a complaint in the Barry county circuit court against defendants claiming violation of their rights as riparian owners on Gun lake and seeking a declaratory judgment to that effect. Both parties moved for summary judgment. Plaintiffs were granted the relief requested.

Defendants appealed to the Court of Appeals, which reversed the judgment of the trial court and directed that summary judgment be entered for defendants.

Leave to appeal to this Court was granted.

This case concerns certain property rights in and around Gun lake, which is situated partly in Barry county and partly in Allegan county. The parties agree that this lake has approximately 2,680 acres of surface area and approximately 30 miles of shoreline.

The defendant corporation is a contract purchaser of a riparian parcel of land having approximately 1,415 feet of frontage on said lake, and the individual defendants are the sole stockholders of the corporation.

Plaintiffs are riparian owners of other property abutting Gun lake.

The State of Michigan sought and was granted permission in the trial court to file a brief amicus curiae. The State is a riparian owner of a large parcel of land abutting the lake.

Defendants are in the process of developing and subdividing their parcel of land into from 144 to 153 lots. Of these lots, approximately 16 will abut on the natural shoreline of the lake. The remainder of the lots will front on canals. To give the back lot purchasers access to the lake the defendants’ plan calls for excavating across riparian lots Nos. 13 and 76. (See attached plat.)

The defendants purport to grant to the purchasers of those lots fronting on the canals riparian rights to the lake and rights of access through the excavation to the lake. The back lots would have frontage on the canals of approximately 11,000 feet.

The following questions are raised on appeal:

1. May a right of access to Gun lake be created by dredging an artificial canal from the lake through lots having frontage on Gun lake to hack lots having no frontage thereon, and may ownership of such lots carry with it riparian rights ?

2. Does the development by defendants' of their property which partially fronts on Gun lake by the construction of a canal connecting back lots to the lake and granting rights of access to the lake constitute an illegal invasion of the rights of the plaintiffs and an infringement of their riparian rights' in and to the surface of Gun lake and in and to the subaqueous land thereunder?

“Riparian land” is defined as a parcel of land which includes therein a part of or is hounded by a natural water course. 4 Restatement, Torts, § 843, p 326. See, also, Palmer v. Dodd, 64 Mich 474, 476 ; Stark v. Miller, 113 Mich 465; Monroe Carp Pond Co. v. River Raisin Paper Co., 240 Mich 279, 287.

A “riparian proprietor” is a person who is in possession of riparian lands or who owns an. estate therein. 4 Restatement, Torts, § 844, p 331.

“The riparian owners have a right to the enjoy-; ment of the natural flow of the stream with no burden or hindrance imposed by artificial means.” Koopman v. Blodgett, 70 Mich 610, 616; Kennedy v. Niles Water Supply Co., 173 Mich 474.

As it was stated in Harvey Realty Co. v. Borough of Wallingford, 111 Conn 352, 358 (150 A 60, 63):

“A riparian proprietor is an owner of land bounded by 9. water course or lake or through which a stream flows, and riparian rights can be claimed only by snch an owner. They are appurtenant only to lands which touch on the toater course or through which it flows and which are used as a whole for a common purpose, not to any lands physically separated from the stream and the land bordering on it, although belonging to the same owner.”. (Emphasis supplied.)

In the case of Schofield v. Dingman, 261 Mich 611, the Court was considering a situation similar to the case at bar. One Turner owned land bordering on Lake Michigan and had prepared a plat of a part of it. There was a bluff about 50 feet above the water at this point along the lake and at times the water washed the foot of the bluff. Most of the time, however, there was a sand beach between the bluff and the water. The plat was laid out along the top of the bluff. Turner planned to sell those lots for resort purposes and to promote sales attempted to convey riparian rights with the lots. Turner died, and the defendants acquired his rights to the land between the bluff and the water and claimed exclusive right to possession and control thereof. Of the granting of the riparian rights to the back lot purchasers, the Court said (p 613):

“ ‘Riparian rights,’ accorded lot owners separated from the beach by intervening lots, can be given no greater meaning than right of access to the beach and enjoyment thereof for the purposes of recreation.”

In the case of Hilt v. Weber, 252 Mich 198, the Court said (p 218):

“It is a settled law both in this State and elsewhere, so settled that no contrary authority has been cited, that the interposition of a fee title between upland and water destroys riparian rights, or rather transfers them to the interposing owner. The basis of the riparian doctrine, and, an indispensable requisite to it, is actual contact of the land with the water.” (Emphasis supplied.)

So, also, was the rule expressed in the case of Richardson v. Prentiss, 48 Mich 88, 89, 90:

“Under the conveyance to complainant of lot 5, she acquired no riparian rights whatever. This lot was conveyed according to a plat which reserved a strip of land between the lot and the waters of the hay, and a strip 2 rods wide would as effectually cut off from lot 5 all riparian rights as would a much wider strip.” (Emphasis supplied.)

Artificial water courses are waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes, and the like. 4 Restatement, Torts, § 841, subd h, p 321.

Land abutting on an artificial water course has no riparian rights. As is stated in the ease of Harrell v. F. H. Vahlsing, Inc. (Texas), 248 SW2d 762, 769, 770:

“In Kirk v. Hoge, 123 Va 519, 532 (97 SE 116, 120), it was said that:

“ ‘The natural corporeal right in question is possessed by riparian owners of land on natural channels of water courses only. Such right does not exist in the water flowing in an artificial channel. The right of those owning land bordering upon or through which artificial channels pass, to the use of the water flowing therein, is not a natural right, nor a corporeal right, hut an incorporeal right, which can be acquired only by grant, express or implied, or by prescription. Angell on Water Courses (7th ed), § 90, p 91; 3 Farnham on Waters and Water Rights, § 820.

“ ‘There are some expressions in some of the authorities cited and relied on by appellees (40 Cyc, p 608[f]; 28 Am & Eng Ency Law [1st ed], p 982), and in other authorities on the subject, to the effect that rights may be acquired by landowners on artificial channels of water courses of which they cannot be deprived; but upon close consideration of such, authorities it will be found that the rights which can be so acquired must be by prescription, or by grant, express or implied, and can be acquired in no other way. We venture to say that no well-considered authority can be found which holds that such rights are natural rights, such as are possessed by a riparian landowner upon the natural course of a flowing stream, or that they can be acquired otherwise than as aforesaid.’

“Likewise, in Fox River Flour & Paper Company v. Kelley, 70 Wis 287, 300 (35 NW 744, 749), the supreme court of Wisconsin said:

“ ‘The courts hold that the right to the water of a fiver flowing in a natural channel through a man’s land','and the right to water flowing to it through an artificial water course constructed on his neighbor’s land, do not stand upon the same ground. (Citing authorities.) In the former case, each riparian proprietor prima facie is entitled to the unimpeded.flow of the water in its natural channel, while ih the latter case any right to the flow must rest on some grant or arrangement, either proven or presumed, from or with the owner of the land from which the water is artificially brought, or on some other legal origin.’

“Also, in Drainage District No. 1 v. Suburban Irrigation District., 139 Neb 333, 343 (297 NW 645, 651), the supreme court of Nebraska said:

“ ‘Nor do the claims of riparian rights aid the defendant and the interveners. We have held that land, to be riparian, must have a stream flowing over it or along its borders; and such proprietors have the right to the ordinary or natural flow of such stream. Crawford Company v. Hathaway, 67 Neb 325 (93 NW 781; 60 LRA 889, 108 Am St Rep 647).

“ ‘In the instant case, the drainage ditches here inVolved'are strictly artificial creation's.' Neither in source nor channel do they partake of the elements' of a natural stream.

“ ‘ “There is a well defined distinction between artificial streams and natural streams in artificial channels. Thus, riparian rights do not ordinarily attach to artificial streams in artificial channels.” 27 RCL, p 1204. See Sampson v. Hoddinott, 1 CBNS 590, 26 LJ (Common Pleas) NS 148; Fox River Flour & Paper Company v. Kelley, 70 Wis 287 (35 NW 744).’

“Other authorities supporting the rule stated' in the opinions above quoted from are: Green v. Carotta, 72 Cal 267 (13 P 685); Annotations, 50 LRA 839; 67 Corpus Juris 903, Waters, § 333; 56 Am Jur 624, Waters, § 155; 2 Farnham, Waters and Water Eights, p 1570; Id, Vol 3, p 2428; 1 Kinney on Irrigation and Water Eights ’(2d ed) 803, § 473.” (Emphasis supplied.).

See, also, Gould on Waters (3d ed), § 225, p 444.

So, too, is the law in'Michigan. See the case of Ruggles v. Dandison, 284 Mich 338, where a small, lake of approximately 15 or 20 acres was situate! on the land of the defendants. On the line dividing the plaintiffs’ and defendants’ property, the defendants had erected a wire fence which cut off plaintiffs! access to the lake. Plaintiffs filed -.a bill to enjoin defendants from maintaining the fence on the theory that the plaintiffs had riparian rights in the. Jake.. A witness for the defendants testified he had seen two members of the plaintiffs’ family making a channel from their property into the lake so' that' they could pull a boat up onto solid ground. Plaintiffs’ tenant testified that at times-' during the year the land between the lake and the 'fence' was miry and boggy. As to whether the plaintiffs’ land 'possessed riparian rights, the Court said (pp 340, 341):

“Whether this lake' can be said to extenj to plaintiff s’'-property is a question of fact; 'If the''water-of the lake touches plaintiffs’ property, because of an artificial channel which was dug by plaintiffs from their property, through the bog land to the lake, they can acquire no riparian rights by virtue of this fact; and if water from the lake at times flows aronnd boggy places on plaintiffs’ marsh land, because of the fact that such soft marsh muck has been trampled down by cattle pastured there during many years, in the past, plaintiffs can claim no riparian rights, because of this situation, as this would not be the natural condition of the boggy land adjacent to the lake.” (Emphasis supplied.)

We, therefore, conclude that parcels of land to be subdivided from the main tract of land bordering on Gun lake have no riparian rights as: (1) they neither include therein a part of nor are they bounded by Gun lake, and (2) the canal itself would be an artificial water course giving rise to no riparian rights.

The remaining question for decision is whether or not riparian rights may be conveyed to a grantee or reserved by the grantor in a conveyance which divides a tract of land with riparian rights into more than one parcel, of which parcels only one would remain bounded by the water course.

In the case of Harvey Realty Co. v. Borough of Wallingford, supra, Justice Hinman, writing for the Court, stated (111 Conn 352, 358, 359):

“It is clear that the grantees or contractees, from the plaintiff, of lots separated from and not bordering on Pine lake can have, of their own right, no riparian privileges in its waters. And any attempted transfer of the right made by a riparian to a non-riparian proprietor is invalid.” (Citing text and cases.) (Emphasis supplied.)

The Court of Appeals in its opinion and the defenjants in their brief rely heavily on certain cases from Minnesota and California. As to the Minnesota case — St. Anthony Falls Water-Power Company v. City of Minneapolis (1889), 41 Minn 270, 273, 274 (43 NW 56, 57) — it is clear that riparian rights were not conveyed, but rather an easement of necessity arose. Justice Mitchell points this out in his opinion, stating:

“It is contended that, as the city owns no land abutting on the river, it is not a riparian owner, and hence has no riparian rights. This is a mere question of names or definitions, which is of no legal significance whatever in the case. * * * The only question, therefore, is, what rights were in fact granted by this deed?” (Emphasis supplied.)

Justice Mitchell then proceeded to discuss easements of necessity in conveyances of certain property.

It is apparent from further reading of Minnesota eases that Minnesota does not follow the rule of transferability of riparian rights. In the case of Johnson v. Seifert (1960), 257 Minn 159, 165 (100 NW2d 689, 695), the Court was considering certain rights between riparian owners of a lake shore. The Court quoted from another Minnesota case — Petraborg v. Zontelli, 217 Minn 536, 547 (15 NW2d 174, 180):

“ ‘As to a public lake, a mutual right of enjoyment exists between and is shared by riparian owners and the public generally. Insofar as such recreational benefits as boating, hunting, and fishing therein, the riparian proprietor has no exclusive privileges. Sanborn v. People’s Ice Company, 82 Minn 43, 50 (84 NW 641, 642, 51 LRA 829, 83 Am St Rep 401), where we said, however, with reference to the vested interests of the shore owners:

“ * * There are certain interests and rights vested in the shore owner which grow out of his special connection with such waters as an owner. These rights are common to all riparian owners on the same body of water, and they rest entirely upon the fact of title in the fee to the shore land.”

“ ‘To say that a shore owner does not have additional private rights and interests distinct from the public is to ignore completely those rights which attach by reason of his shore ownership.’ (Italics supplied.)”

Note in these statements the emphasis on the vested interests of the shore owner and that these rights arise from shore ownership.

The California cases relied on are not decisive here. In two of the California cases cited in the Court of Appeals’ opinion and in the defendants’ brief, the Court recognized the “well-known scarcity of water” in that State. Anaheim Union Water Company v. Fuller (1907), 150 Cal 327, 335 (88 P 978, 982, 11 LRA NS 1062), and Frazee v. Railroad Commission of California (1921), 185 Cal 690, 698-(201 P 921, 924).^* This “scarcity of water” has given rise to various rules of law that differ immensely from those in our State. For example, it is stated in 1A Thompson on Real Property (1964 ed), § 273, pp 435, 436:

“There have developed in the United States three theories as to public policy in water rights: (a) The common-law riparian doctrine of the eastern states; (b) The ‘Colorado’ doctrine of prior appropriation (Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, and Wyoming); and (c) The ‘California’ or dual doctrine of riparian rights and prior appropriation, modified as to each (California, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington).”

See, also, 6A American Law of Property, §§ 28.55, 28.58, pp 156, 170; 5 Powell on Real Property, § 733, p 439, et seq. Note, as to policy, et cetera, the California Constitution, art 14, § 3, and West’s Annotated Codes of California, Water, §§ 100, 106. For an extensive discussion of California law on riparian rights, see United States v. Fallbrook Public Utility District (1958, SD Cal), 165 F Supp 806, 823, et seq.

Defendants direct attention to the statement of Justice Fead in the case of Bauman v. Barendregt, 251 Mich 67, 69:

“It is a settled rule in this State that, where there is no reservation of them, riparian rights attach to lots bounded by natural water courses.” (Citing cases.) (Emphasis supplied.)

We hold that what is meant by this “reservation” of riparian rights is merely the reservation of a right-of-way for access to the water course. In Richardson v. Prentiss, 48 Mich 88, upon which Justice Fead relied in making this statement concerning .reservation of rights, it is clear that the Court while speaking of the reservation meant a reservation, not of riparian rights, hut rather of a right-of-way (p 91). This, however, cannot and does not give rise to riparian rights. Schofield v. Dingman, 261 Mich 611.

It is appropriate to reiterate the statement made by Chief Justice McGrath, writing for the Court, in the ease of The Grand, Rapids Ice & Coal Company v. The South Grand Rapids Ice & Coal Company, 102 Mich 227, 236:

“The shore proprietor takes by virtue of shore ownership. Ilis interest in the bed of the Stream he acquires as appurtenant to the grant, and the extent of that interest depends upon his frontage,, and the form, length, and breadth of the body of water upon which he abuts.” (Emphasis supplied.)

We hold that riparian rights are not alienable, severable, divisible, or assignable apart from the land which includes therein, or is bounded, by a natural water course.

While riparian rights may not be conveyed or reserved — nor do they exist by virtue of being bounded by an artificial water course — easements, licenses and the like for a right-of-way for access to a water course do exist and ofttimes are granted to nonriparian owners.

We will, therefore, treat the proposal here as though easements for rights-of-way for access are given to the back lot purchasers. We must then consider what right, if any, the owners of the back lots have to use these rights-of-way. In so doing, attention must be given to the use of riparian rights by the defendants and the remaining proprietors on Gun lake.

Riparian uses are divided generally into two classes. The first of these is for natural purposes. These uses encompass all those absolutely necessary for the existence of the riparian proprietor and his family, such as to quench thirst and for household purposes. Without these uses both man and beast would perish. Users for natural purposes enjoy a preferred nonproratable position with respect to all other users rather than a correlative one.

The second of these is a use for artificial purposes. Artificial uses are those which merely increase one’s comfort and prosperity and do not rank as essential to his existence, such as commercial profit and recreation. Users for artificial purposes occupy a correlative status with the other riparians in exercise of their riparian rights for artificial purposes. Use for an artificial purpose must be (a) only for the benefit of the riparian land and (b) reasonable in light of the correlative rights of the other proprietors. Evans v. Merriweather, 4 Ill (3 Scam) 492 (38 Am Dec 106). It is clear in the case before us that the use made of the property by the defendants is for a strictly artificial purpose and must meet the test of reasonableness.

In the case of Hoover v. Crane, 362 Mich 36, Justice Edwards stated (pp 40, 41):

“Michigan has adopted the reasonable-use rule in determining the conflicting rights of riparian owners to the use of lake water.

“In 1874, Justice Cooley said:

“ ‘ It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes the injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress.’ Dumont v. Kellogg, 29 Mich 420, 425 (18 Am Rep 102).

“And in People v. Hulbert, 131 Mich 156 (64 LRA 265, 100 Am St Rep 588), the Court, quoting from Gehlen Bros. v. Knorr, 101 Iowa 700 (70 NW 757, 36 LRA 697, 63 Am St Rep 416), said (p 170):

“ ‘No statement can be made as to what is such reasonable use which will, without variation or qualification, apply to the facts of every case. But in determining whether a use is reasonable we must consider what the use is for; its extent, duration, necessity, and its application; the nature and size of the stream, and the several uses to which it is put; the extent of the injury to the one proprietor, and of the benefit to the other; and all other facts which may bear upon the reasonableness of the use. Red River Roller Mills v. Wright, 30 Minn. 249 (15 NW 167, 44 Am Rep 194), and cases cited.’

“See, also, Merkel v. Consumers Power Co., 220 Mich 128.”

The trial court made no finding of fact as to the reasonableness of the use. This record is insufficient for us to make a determination as to reasonableness. Therefore, we remand to the trial court for such determination. The trial court should keep in mind the following factors in determining whether the use would be reasonable:

First, attention should be given to the water course and its attributes, including its size, character and natural state. In determining the reasonableness of the use in the case at bar, it should be considered that Gun lake is not a large lake, that it is used primarily for recreational purposes, and that the defendants are changing its natural state by expanding the lake frontage of their property from an actual 1,415 feet to a total, inclusive of the canals, of 12,415 feet, being an increase in frontage of approximately 800 per cent.

Second, the trial court should examine the use itself as to its type, extent, necessity, effect on the quantity, quality, and level of the water, and the purposes of the users. Factors in this particular case that should be considered include: (a) that this use would permanently add approximately one family without riparian rights to each 18 acres of surface area (or 137 families); (b) the possibility that the level of the lake may be reduced by withdrawing trust waters into over 2 miles of the proposed canals, as is alleged by the attorney general in his motion to intervene; (c) the possibility that pollution may result; (d) that there is nothing in the record showing any necessity for this use; and (e) the fact that it appears that the purpose of the defendants herein is merely commercial exploitation.

Third, it is necessary to examine the proposed artificial use in relation to the consequential effects, including the benefits obtained and the detriment suffered, on the correlative rights and interests of other riparian proprietors and also on the interests of the State, including fishing, navigation, and conservation. An additional fact to be considered by the trial court in this litigation is whether the benefit to the defendant subdividers would amount merely to a rich financial harvest, while the remaining proprietors — who now possess a tranquil retreat from everyday living — would be forced to endure the annoyances which would come from an enormous increase in lake users.

Undoubtedly, at the new hearing, the attorney general of the State of Michigan will intervene under his statutory general powers of intervention for the purpose of protecting the rights of the public.

If, after considering all of these factors and any additional testimony the parties may desire to present, the trial court (as chancellor) concludes the use is unreasonable, that court should retain jurisdiction of the matter for the purpose of granting such further necessary or proper relief as may be necessary to protect the rights and interests of plaintiffs, the public, and riparian owners of property abutting this lake. Such further or proper relief shall be proposed only after reasonable notice and hearing, as is provided under G-CB. 1963, 521.6.

The judgment of the Court of Appeals is reversed and the case is remanded to the circuit court for a determination, pursuant to this opinion, of the reasonableness of the proposed use.

Plaintiffs shall have costs.

Black, Souris, and Adams, JJ., concurred with T. M. Kavanagh, J.

* The oilier California cases are: Strong v. Baldwin (1908), 154 Cal 150 (97 P 178, 129 Am St Rep 149); Miller & Lux, Inc., v. J. G. James Company (1919), 179 Cal 689 (178 P 716).