Densel v. City of Ann Arbor

144 Mich. App. 673 (1985) 376 N.W.2d 181

DENSEL
v.
CITY OF ANN ARBOR

Docket No. 72373.

Michigan Court of Appeals.

Decided August 6, 1985.

Robert E. Logeman, P.C. (by Robert E. Logeman), for plaintiffs.

Stefani A. Carter, Assistant City Attorney, for defendant.

Before: WAHLS, P.J., and R.M. MAHER and R.E. NOBLE,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from orders of the circuit court granting defendant's motion for summary judgment and denying plaintiffs' motion for rehearing.

In their complaint, plaintiffs alleged that plaintiff Earl J. Densel had been fishing on the Huron River on May 23, 1981, approximately 100 feet from defendant's Superior Dam, when the dam opened and released water. The force of the rushing water caused Densel's boat to overturn and threw Densel into the water. Plaintiffs alleged that Densel suffered injuries as a result of this occurrence. Plaintiffs claimed, among other allegations, that defendant had negligently breached its duty to exercise reasonable care by failing to place signs warning the public of the dangerous condition of the dam. In defense, defendant sought summary judgment pursuant to GCR 1963, 117.2, subds (1) and (3), claiming that plaintiffs' claim was barred by the recreational land users act, MCL 300.201; MSA 13.1485, because plaintiffs had not, and could not, allege that defendant was guilty of gross negligence or willful and wanton misconduct. Over plaintiffs' strenuous argument that the act did not apply because Densel had had a right to fish on the Huron River, the trial court concluded that the river was not a navigable stream and that the act barred plaintiffs' recovery unless they could show gross negligence or willful and wanton misconduct. Summary judgment was then granted.

On appeal, plaintiffs argue that the trial court erred by concluding that the Huron River was not navigable and by applying the recreational land users act to the facts of this case. We agree that the trial court improperly concluded that the Huron River was not navigable. We are unable to tell from the trial court's ruling the facts upon which the court's conclusion was based and the court's sole reference to the navigability of the river suggests that the court did not apply the correct legal standard in reaching its conclusion. We, therefore, must remand this case to the trial court so that the court may properly evaluate plaintiffs' claim that the river was a navigable stream under the standards provided by the Supreme Court in Bott v Natural Resources Comm, 415 Mich. 45; 327 NW2d 838 (1982).

We further find that if the Huron River is found to be a navigable stream within the parameters set forth in Bott, supra, defendant is not entitled to the protection of the recreational land users act. The act provides as follows:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee."

Plaintiffs argue that if the river is navigable, Densel had a right to be on the river fishing. This right, plaintiffs argue, is not diminished because defendant owns the land on both sides of the river as well as the land underlying the river. Plaintiffs then argue that, if Densel had the right to be on the river, the act is inapplicable.

We agree with the analysis. Both this Court and the Supreme Court have held that the phrase "lands of another" may include bodies of water. Burnett v City of Adrian, 414 Mich. 448; 326 NW2d 810 (1982); Graham v Gratiot County, 126 Mich. App. 385; 337 NW2d 73 (1983). However, where the body of water is navigable, within the definition provided in Bott, supra, the riparian or littoral owner has title to the "land", but that title is subject "to a servitude for commercial navigation of ships and logs, and, where the waters are so navigable, for fishing". Bott, supra, 415 Mich. 60. This "servitude" has also been referred to as premises being "impressed with a public trust". Bott, supra, 415 Mich. 71, fn 25, citing Collins v Gerhardt, 237 Mich. 38; 211 N.W. 115 (1926), and Attorney General ex rel Director of Conservation v Taggart, 306 Mich. 432; 11 NW2d 193 (1943). See also Kerley v Wolfe, 349 Mich. 350, 357; 84 NW2d 748 (1957). Because of this servitude, a riparian or littoral owner may not eject or bar members of the public from the water if the members of the public are exercising their right to fish. Kerley v Wolfe, supra, 349 Mich. 357.

In light of this "servitude", we do not believe that a person exercising his right to fish on a navigable stream may be considered to be a person who is "on the lands of another without paying to such other person a valuable consideration for the purpose of fishing". The riparian owner is not entitled to charge a fee before "permitting" the other person to enter onto the "land" to exercise his already-reserved right to enter. Indeed, the purpose of the recreational land users act, to further "recreational activities in Michigan by making certain areas available for such purposes while clearly restating the common-law liability of owners to those who come gratuitously upon their land", Thomas v Consumers Power Co, 58 Mich. App. 486, 492; 228 NW2d 786 (1975), has already been met by providing for the servitude or public trust upon the water. See also Thone v Nicholson, 84 Mich. App. 538, 553; 269 NW2d 665 (1978), lv den 405 Mich. 819 (1979). Finally, the act has repeatedly been characterized as the "codification" of tort principles which have established the duty owed by owners and occupiers of property to those who come upon such property as "mere licensees". Syrowik v Detroit, 119 Mich. App. 343, 347; 326 NW2d 507 (1982); Crawford v Consumers Power Co, 108 Mich. App. 232; 310 NW2d 343 (1981), lv den 417 Mich. 1072 (1983); Thone v Nicholson, supra, 84 Mich. App. 544; Thomas v Consumers Power Co, supra, 58 Mich. App. 492. A licensee is, by definition, not entitled to come upon another person's land by right. Thomas, supra, 58 Mich. App. 492. We, therefore, conclude that, if Earl Densel was on the Huron River by right because the river was navigable, defendant may not assert the recreational land users act as a bar to plaintiffs' claim.

Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction. No costs as a public question is involved.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.