The Lake Across the Street: Understanding Water Access Rights Along a Dedicated Roadway
Article by Robb Krueger
According to the Michigan Historical Society there are more than 11,000 inland lakes scattered throughout our state, and a person is never more than six miles from an aboveground source of freshwater. A brief summer drive down Michigan’s winding roadways can confirm this fact and provides many travelers a direct view of a scenic lakeshore devoid of houses. While residential developments often impede such views, there remains the occasional stretch of road where no home or other structure save the occasional dock or boat separates the traveler from these views. This often raises the question as to who holds the right to access the lakes along these roadways or to enjoy the other uses a lakefront lot owner might traditionally have.
In a recent 2017 unpublished opinion by Michigan’s Court of Appeals, Kreis Enderle won a decision which follows a 2010 holding of the Michigan Supreme Court in 2000 Baum Family Trust vs Babel. It states that where the only land separating a property owner from a body of water is a portion of a dedicated roadway, absent other reservations that owner also holds the right of access to the lake. This means that they may use the land in the same manner as a lakefront lot, including the right to install docks and other riparian or littoral rights.
While the opponent to our client argued that they held exclusive rights to the land through their ownership of their neighboring lot or subsequent deeds from their plat owners, the Michigan Court of Appeals disagreed clarifying that the rule in Baum requires analysis tracing back the dedication of the particular roadway which separates the land from the water.
The rule is simple in that, from the point of time that a roadway is dedicated absent an express statement to the contrary, the rights to access and use a waterway including a lake, river or other body of water becomes the right of the property owner upland and across the road from the lake. The reader should understand that often land which is dedicated for the use of a roadway is not only the paved or improved portion of the road itself but may include undeveloped portions and even beachfront which appears to be separate from the road itself but is part of the undeveloped dedication of land. A review of a survey can show if the only thing separating an upland owner across the street from the waterway is a dedicated roadway. Where this is the case, that owner likely has access rights to the lake. The manner and language of the dedication can affect these rights as well and so reviewing the history of title and the dedication language if any may be necessary to understanding your rights.
If you own or are planning to purchase a property which is separated by road from a lake, it would be worth having an attorney and surveyor investigate your rights as to the access of the lake. Litigation involving lake access can be expensive and requires a solid understanding of littoral and riparian rights. If you need additional information regarding this article or would like to discuss your own issues please do not hesitate to contact the author at the e-mail below.