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Surprising Court Decision: Public Road Cuts Off Riparian Rights

July 1, 2009

On June 23, 2009 the Michigan Court of Appeals issued its decision in 2000 Baum Family Trust, et al v Babel, et al, (Ct. App. No. 28457). In Baum, the Plaintiffs owned lots fronting Lake Charlevoix, but separated from the water by Beach Drive. Beach Drive is a platted street dedicated to the use of the public that runs parallel and immediately adjacent to the lake. Though Beach Drive separated Plaintiffs' lots from the water, Plaintiffs erected docks and otherwise exercised riparian rights, as though their lot lines extend across the street to the shore. Plaintiffs filed suit after several "back-lot" owners erected docks in front of Plaintiffs' lots.

The trial court held that Plaintiffs' lots were not riparian because a public road separated their lots from the lake. Plaintiffs appealed, contending that well-established Michigan law supported their claim of riparian rights.

To the surprise of many practitioners in this area, the Court of Appeals affirmed the trial court's decision. Discussing the 1887 Plat Act, the Court held that the dedication of Beach Drive to the public vested fee title in the public and thereby cut off Plaintiffs' riparian rights.

The Court of Appeals' decision in Baum may have significant consequences for individuals who own waterfront property separated from the water by a public street. For decades these owners, like the Plaintiffs in Baum, have claimed and exercised riparian rights to the exclusion of the public and "back-lot" owners. Baum appears to be a departure from what many thought were firmly entrenched principles of Michigan real property law. See Croucher v Wooster, 271 Mich 337 (1935) (public highway between platted lot and the shore does not defeat riparian rights); Sheridan Drive v Woodlawn, 29 Mich App 64, 69 (1970)("The law of Michigan seems to be settled that the owner of the land separated from a lake by only a public road has riparian rights in the lake"). The Court did not explain how its decision will correlate with a number of prior inconsistent appellate court decisions.

Because of the Baum decision's potential impact on waterfront owners, and its apparent conflict with other existing law, we expect the Plaintiffs to seek permission to file an appeal with the Michigan Supreme Court. Because Baum is a published decision, it is binding throughout the State unless later reversed by the Michigan Supreme Court.

If you have questions about Baum and its effect on your property, please contact Nyal Deems (616.336.6712) or Eric Guerin (269.553.3506).

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