For decades Michigan courts have been called upon to decide whether a waterfront easement, platted way, or similar access device permits the user to exercise riparian rights – the ability to install a dock and moor boats to that dock. After thousands of such cases you may think the law is clear, making a return to the courts unnecessary. You would be wrong.
The Michigan Court of Appeals has spoken again in Krantz v Terrill. Filed in 2010, that case has been to the Michigan Court of Appeals twice and the Michigan Supreme Court once, with another return trip possible. That case was the subject of previous posts in 2012 and 2013. After five years (and counting) of litigation the backlot owner is still without the right to install a dock at the end of a lakefront easement. The court arrived at this result notwithstanding evidence that a dock had been installed at the end of the easement for decades. In that, Krantz is not unusual.
The issue in Krantz and similar cases is often whether historical use was permissive or adverse. Only adverse use can give rise to a prescriptive right to continue such use. Using the courts to determine whether historical use was permissive or adverse is expensive and time consuming. If you have been sued, you may have no real alternative. If you are involved in such an arrangement, you can do certain things to avoid litigation:
- If you own waterfront property encumbered by or adjacent to an easement used to exercise riparian rights, you may want to seek an opinion as to whether such uses are allowed. If not (as is often the case) you can protect your property rights by memorializing your consent if you do not seek to discontinue the use now. If you do nothing, you run the risk of later financing a lawsuit arguing about prescription. If the easement user will not agree the use is consensual you already have a problem.
- If you are considering purchasing property that has the benefit of an easement or similar access device, don’t get too comfortable with statements by your seller or a realtor about your ability to use a dock or moor boats. Though such statements are often made harmlessly, based on decades of use, they too often result in litigation and disappointed expectations.