iThose who own waterfront property adjacent to a road-end frequently encounter issues related to public access. In Michigan, roads that run perpendicular to a lake frequently provide access to a lake, though the road itself stops short of the water. As demonstrated by a recent case decided by the Michigan Court of Appeals, determining whether any given road provides public access can present a number of difficult factual and legal issues.
In Dunbar v Cheboygan County Board of Road Commissioners, the improved portion of King Road stopped near a "road ends" sign, approximately 160 feet from the shore of Burt Lake. The evidence in that case reflected that the public had used a footpath from the end of the improved road descending to the lake. There was also evidence that the Road Commission at least sporadically performed maintenance to keep that footpath passable. The Court's focus was on whether the Road Commission met its burden of proving that the footpath satisfied the requirements for a highway-by-user, which requires proof of: 1) a defined line; 2) that the road was used and worked on by public authorities; 3) public use and travel for 10 consecutive years without interruption; and 4) open, notorious, and exclusive public use. The Court's findings included the following:
- A footpath can satisfy the requirement for a defined line of travel;
- The public maintenance requirement can be satsfied by even sporadic and minimal work, as dictated by the needs of local traffic, even foot traffic;
- The public use requirement can be satisfied by occassional or seasonal use, as is appropriate for the "road" in dispute; BUT
- The requirement of "open, notorious, and exclusive" use was not satisfied where the adjacent owner gave express or implicit permission for members of the public to use the footpath to access the lake.
In Dunbar, it is not clear that the adjacent owner provided express permission to members of the public, beyond family and friends. Though the Court's decision tells only part of the story, it appears that tolerating and not objecting to public use may be sufficient to defeat a claim that a footpath to a lake can be characterized as a highway-by-user. Because that analysis is so fact intensive, based on the circumstances of an individual case, Dunbar is instructive but fails to provide any bright-line guidance to future litigants.
