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Public Rights on Michigan Waters

by Frank Opolka and John Leone
03/22/10

Reprinted from the web

PUBLIC RIGHTS ON MICHIGAN WATERS

The field of water law is complex and develops periodically through both legislative and judicial action. This material is not, nor is it meant to be, an exhaustive or conclusive evaluation of the issue. This material is designed to provide the reader with a working knowledge and understanding of this complicated yet interesting area of Michigan law.

This material was first compiled as Michigan Department of Natural Resources Law Enforcement Division Report No. 9. The authors were Mr. Frank Opolka of the Law Enforcement Division and Mr. John F. Leone a student intern from the Thomas M. Cooley Law School. Mr. Opolka is now retired. Mr. Leone is currently an Assistant Attorney General for the State of Michigan.

Michigan’s navigable rivers and public right of way.

If the stream is navigable, the public may wade up the stream and fish but cannot trespass on the uplands. The Recreational Trespass Act does allow access to the upland in the event passage in the stream is obstructed. If the stream is not navigable, the public can not wade up the stream, nor may they access by boat.

Public Rights in Streams DNR field personnel receive many inquiries about the public's rights to fish in given streams. Typical questions include: "May I wade in a stream while fishing without being in trespass?" "What may or should I do when floating or wading down a stream and I encounter a dam or log jam or a fence that I can't cross while in the water?" On a navigable (public) stream, the public has the right to float the stream, to wade on the submerged soil and to fish therein, but this right does not extend to trespass upon the private uplands of abutting landowners. Part 731, Recreational Trespass, 1994 PA 451, MCL 324.73101 et seq., provides an exception to this general rule; a wading fisherman may enter upon the upland to avoid a hazard or other impediment obstructing passage within the stream. On a non-navigable (private) stream, the public can neither wade nor float. They should, as a matter of right, feel secure in making a portage around any dam or other obstruction in a navigable (public) stream unless physically prevented from doing so by the riparian owner. The banks of such a stream so far as they are necessary to the exercise of the right of passage and navigation are subject to the public easement. Also, while it is beyond question that the riparian owner is entitled to be protected from any unnecessary intrusion upon his premises, it is equally certain that he cannot solely for the maintenance of an abstract right or even an exclusive possession, deny any member of the public navigating a stream the right to land on or cross his upland for emergency purposes. This does not apply to the use of the banks of streams in private ownership for rest purposes, however. Trespass for emergency purposes to protect life and limb also will incur liability to the property owner for any damage that is done to the property under common law trespass. Still another question remains for decision. Where does the stream end and the bank begin? What is the bed of the stream or the submerged land? Is it the land under the stream at flood stage? Normal high-water mark? Normal low-water mark? Part 301, Inland Lakes and Streams, 1994 PA 451, MCL 324.30101 et seq; MSA

22 11A.30101 et seq, defines the limit between stream and bank as the "ordinary high water mark." Ordinary high water mark means the line between upland and bottomland which persists through successive changes in water levels, below which the presence and the action of the water is so common or recurrent that the character of the land is marked distinctly from the upland and is apparent in the soil itself, the configuration of the soil and the vegetation. [MCL 324.30101(h)]. In Opinion No. 90, dated April 27, 1964; by Circuit Judge Allen C. Miller, for the County of Iosco, in Constan v Richter, the court discussed that testimony in this case disclosed the river varied as much as three feet, and stated that a decision on the foregoing points would seem to require evidence on the status of the vegetation; the angle of the river bank, whether gradual or sheer; the periods of time in which the adjacent uplands are submerged, and the like. Judge Miller stated: But it is clear that insofar as the clear riverbank extends, and within the banks of the river, a fisherman has the right to boat, to portage, wade and walk, even though at the particular minute there may not be water over the bed of the stream. The bed of the stream, of course, does not refer to the situation at flood stage, but to the definite bed of the stream as may be physically determined at the particular location by the vegetation and soil conditions then and there existing. Judge Miller further stated: Where an improvement has been artificially made, inhibiting fishing by wading where this was feasible in the natural state, such as digging of a deep hole in the river, the placing of a fence across it, or some other exercise of ownership by the riparian owner, some adjustment must be made to recognize and accommodate the public right. In other words, there should be some walkway provided so that the right to fish shall not be prohibited by indirection. In brief, the court said that on a navigable (public) stream: (1) a fisherman or boater may float or wade in the stream or, if necessary upon the upland within the clearly defined banks of a stream without trespass; and (2) when an artificial obstruction prohibits wading or floating, an alternative route--a walkway--must be provided for the fisherman or boater. It is presumed that where such a walkway is not provided by the riparian, the public may seek their own route provided it is subject to the principle of reasonableness. It is quite clear that although a riparian owns the fee to the bed of a navigable (public) stream, his ownership is subordinate to the right of the public to the free and unobstructed use of the stream for navigation, fishing, swimming and other uses inherently belonging to the public. The riparian owner may not erect a fence or place a wire or other restraining feature so as to interfere with aforesaid uses by the public. Such placement is not only a restriction of and a hazard to navigation, but is a nuisance, as well as a deprivation of an inherent right of the public. Any member of the public who considers such interference as an invasion of his rights may initiate action in equity (civil suit) to abate the nuisance.



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