Are there circumstances under which a lakefront easement granting only “access” rights can be used to erect a dock? In Krantz v. Terrill, issued on September 20, 2012, the Michigan Court of Appeals answered that question, “yes.” There are several interesting lessons from that case for owners of waterfront property:
- A strip of land between a “front-lot” and the water itself does not defeat a front-lot owner’s riparian rights. Though Michigan law is very clear in that regard, it is troubling the trial court held that the existence of land defeated the front-lot owner’s riparian rights. The holding by the trial court was reversed by the Court of Appeals.
- An express right to “access” does not include riparian rights, i.e. the right to erect a dock and moor boats. Despite clear Michigan law on this point, the trial court held that access could include riparian rights. This holding was also reversed by the Court of Appeals.
- Use of an easement that exceeds its permitted scope gives rise to the possibility that those uses may thereafter continue as a matter of right. I put this in the category of “no good deed goes unpunished.” To be a good neighbor, waterfront property owners frequently permit uses in excess of those expressly granted. When property is sold, or circumstances otherwise change, there is inevitably a dispute about whether such uses were permissive (and therefore could not give rise to additional rights) or adverse. In Kranz, the Court of Appeals upheld the trial court’s finding that erecting a dock and mooring boats thereto were adverse. The back-lot owners therefore acquired a prescriptive right to exercise riparian rights. If you decide to be a good neighbor, it is absolutely critical that you memorialize the permission granted in a proper license agreement.
- However clear you may think the law is, do not take your opponent lightly, and be leery of “short-cuts.” Though I do not know whether it affected the outcome, the riparian owner in Kranz agreed to let the trial court decide the case on a limited record, presumably to save money.