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More Plat-Created Headaches For Waterfront Property Owners

January 25, 2012

On December 20, 2011 the Michigan Court of Appeals issued its third decision in Ward v Barron Precision Instruments, involving the Warwick Farms plat in Genesee County. The plat consisted of six “first-tier” lots adjacent to Warwick Lake and five back-lots.

Plaintiffs owned the first-tier lots and defendants owned all of the land that was part of the original parcel that was not platted.

The first-tier lots were separated from the lake by an irregular strip of land. A notation on the plat map indicated that the strip of the land between the first-tier lots and Warwick Lake “is reserved for the private use of the proprietors.“ The trial court originally held that, notwithstanding that private reservation, the first-tier lots extended to the water’s edge, providing the first-tier owners with riparian rights. The court of appeals reversed that decision in 2006, holding that the reserved strip of land was owned by defendants, subject to an easement in favor of the plaintiffs. The case was remanded to the trial court for determinations regarding the use and maintenance of the easement  and a subsequent appeal, remand and a third appeal followed.

Because Ward III is an unpublished decision, it is not binding precedent. It does, however, teach or remind us of important lessons:

1.  Do not overlook the significance of a small strip of land between your lot, or a lot you are considering purchasing, and the water’s edge. In many plats of waterfront property, the individual lot lines do not extend to the water’s edge. Because the value and appeal of those properties is often dependent upon the ability to erect a dock, moor boats and otherwise exercise riparian rights, seek the advice of counsel experienced in riparian rights matters.

2.   Litigation is expensive and time-consuming. The Ward lawsuit was originally filed in 2003 and many issues appear to still be unresolved, even after three trips to the court of appeals.

3.  Evidence regarding the historical and traditional use of a disputed area in a plat, to help determine the plat proprietor’s intent regarding usage, should be limited to evidence of usage at or very near to creation of the plat. Many plats of waterfront areas were prepared in the early part of the last century, making such evidence unavailable. Though the plat in Ward was recorded in 1964, Ward reminds us that recent evidence of use, often proferred by back-lot owners, may not be relevant.

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