In 1957 the Michigan Supreme Court observed that "as the Water Wonderland acquires more population it also acquires more litigation over water rights." Our population has increased, we have become more litigious, and plats continue to be a primary source of that litigation. In November, 2012 the Michigan Court of Appeals decided O'Brien v. Hicks, which involved the use of two dedicated parkways that terminated at the shore of Otsego Lake. You can view a copy of the plat map here. Though the parkways were dedicated to the use of the public, in a 2003 court case, the public's interest was vacated, though owners of lots within the plat retained rights to use the parkways. In 2012, the court of appeals addressed appropriate uses of the parkways by backlot owners, i.e. those who owned lots within the plat that did not have lake frontage.
The trial court held that five of the backlot owners had acquired a prescriptive right to exercise riparian rights, including use of a dock and the overnight mooring of boats, because those owners had exercised such rights for many years without objection. The Court of Appeals reversed, holding that none of the backlot owners were entitled to exercise riparian rights. Principles to be gleaned from that decision include the following:
- The court recognized that proper use depends on the intent of the grantor (the plat proprietor) and declined to rely on evidence regarding long-term usage as a substitute for what the grantor actually intended. This is significant because many waterfront plats in Michigan were platted in the early part of the last century, and the plat proprietors are now deceased.
- Unchallenged use of a platted area, for purposes beyond those otherwise permitted, does not give rise to prescriptive rights because the requirement of "adversity" is absent. The Court wrote that "one may not acquire a prescriptive easement to property already subject to an easement for the benefit of an entire subdivision and created through a private dedication simply because an owner 'overuses' the easement."
There are hundreds of lakes throughout the State where dedicated areas within plats are used for purposes beyond those legally permitted. Backlot owners may purchase lots believing they have the "right" to continue those uses. When a waterfront property owner or other interested party objects, the familiar retort is that such uses can continue because they have existed for years. O'Brien teaches that such protests may fall on deaf ears.© 2013 Varnum LLP