Lead Opinion
This case involves riparian rights.
The road at issue, along Lake Charlevoix, was dedicated under the 1887 plat act. Many lots alongside
On the authority of this caselaw, and mindful that the imperatives of stare decisis are particularly strong
I. FACTS AND HISTORY
Plaintiffs own front lots in a platted subdivision on the northern shore of Lake Charlevoix. Their lots do not touch the shoreline. Rather, Beach Drive, which runs east to west and parallel to the lake, abuts the shoreline and separates plaintiffs’ lots from the lake. In other words, plaintiffs’ lots extend to the edge of the road, not to the water’s edge. In addition to the Charlevoix County Road Commission (CCRC), defendants include back-lot owners and Charlevoix Township.
The plat includes six named streets, including Beach Drive. All these streets run parallel to the lake, except for Central Avenue, which cuts through the center of the plat and runs perpendicular to, and terminates at, the lake. The plat depicts a single dock extending into the lake at the end of Central Avenue, but there is no indication in the record whether this dock was ever built, or, if it did exist, how it was used.
The Charlevoix County Board of Supervisors accepted the plat and the dedication of the streets on August 7, 1911.
From the time it accepted the dedication in 1911 until the instant lawsuit, the CCRC had never asserted a claim to riparian rights as a necessary incident to its interest in Beach Drive. The CCRC has never installed a dock along the lakeshore or otherwise engaged in riparian activities. Over the years, however, plaintiffs have used the lake in front of their lots and have built seasonal docks extending into the lake in order to moor boats and other water-related equipment. Furthermore, it is undisputed that there is neither a reservation nor a grant of ripariаn rights in plaintiffs’ deeds and that their lots are taxed as “water view” properties rather than “waterfront” properties.
Allegedly, various back-lot owners began using the waterfront in front of plaintiffs’ homes to maintain docks and store boats. In response, plaintiffs filed a complaint against defendants alleging claims of trespass and nuisance and seeking injunctive and equitable relief. The CCRC counterclaimed, alleging that plain
Plaintiffs moved for partial summary disposition against the CCRC alone, claiming that there is no issue of material fact regarding which party is entitled to riparian rights. Plaintiffs argued that because their lots were separated from the water by a roadway parallel to the water, their lots were riparian. In plaintiffs’ view, the CCRC has a right to the use of Beach Drive as a roadway only. In response, the CCRC argued that plaintiffs did not possess riparian rights because the public holds Beach Drive in fee pursuant to the statutory dedication under the plat act, which means that plaintiffs’ lots are not riparian. The back-lot defendants also filed a motion in response, arguing that plaintiffs did not possess riparian rights because, as shown on the plat, none of their properties abuts the lake.
The trial court denied plaintiffs’ motion, ruling that they did not possess riparian rights. The court framed the issue as “whether Beach Drive is an easement with the fee title residing in the front lot owners or whether the public holds fee title.” It ruled that the effect of a dedication is to “vest fee title in the local unit of government. ...” It followed, in the court’s view, that because plaintiffs “do not hold fee title to the waterfront land in front of their respective lots, they do not possess riparian rights.”
The Court of Appeals granted plaintiffs’ interlocutory application for leave to appeal and affirmed. Baum,
We granted leave to appeal, including among the issues to be argued (1) whether the fee title resulting from the dedication of land for public uses in a plat under the 1887 plat act in land that runs along the shore of a lake conveys the riparian rights to the lake to the county or whether the conveyance is limited to public uses of the road as a road and (2) whether caselaw stating that front-tier lots adjacent to a road running along a waterway have riparian rights, unless such rights are expressly excluded, remains valid. 2000 Baum Family Trust v Babel,
II. STANDARD OF REVIEW
The question presented on appeal is a question of law: Whether plaintiffs have riparian rights in this context in which their lots abut a roadway that runs parallel to the lakeshore and was dedicated under the 1887 plat act. We review issues of statutory interpretation and other questions of law de novo. Eggleston v Bio-Med Applications of Detroit, Inc,
The lower courts held that the nature of the property interest conveyed to the CCRC in the dedication of Beach Drive under the applicable plat act is such that it divested front-lot plaintiffs of their riparian rights. In addition, the Court of Appeals interpreted the dedication language as granting the CCRC unlimited use of the streets and alleys within the plat. Analysis of these conclusions requires an understanding of several aspects of Michigan property law. Therefore, before turning to the central questions at issue — (a) what is the nature of the property interest conveyed by the plat act and (b) how does this property interest affect riparian rights — some general legal background is necessary. In particular, we survey the law of dedication and consider the creation of public roads by dedication and the rights of landowners abutting such roads.
A. BACKGROUND
A “dedication” of land is an “appropriation of land to some public use, accepted for such use by or in behalf of the public.” Clark v Grand Rapids,
This realm of law was said to be “anomalous,” in that “[u]nder it, rights are parted with and acquired in modes and by means unusual and peculiar.” Patrick,
[i]t is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. [Id. at 193 (citation and quotation marks omitted).]
The enforcement of dedications was left to the law of estoppel. See White’s Lessee,
[I]t would be dishonest, immoral, or indecent, and in some instances even sacrilegious, to reclaim at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious object. The law therefore will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed. The principle is one of sound morals and of most obvious equity, and is in the strictest sense a part of the law of the land. It is known in all courts, and may as well be enforced at law as in equity. [Citation and quotation marks omitted.]
The law will give effect to a dedication of land that has been “solemnly devoted to the use of the public” for as long as the land continues to be exercised in accordance with its dedicated public use. Id. (citation and quotation marks omitted); see also White’s Lessee,
In sum, the rules of property governing dedications of land to the public are distinct, yet deeply rooted in the Anglo-American legal tradition. These rules have developed to accommodate the coexisting rights of the dedicator of land, his or her grantees, and the public. In balancing these rights, the use to which the dedication was made has always been at the fore. See White’s
B. PUBLIC ROADS BY DEDICATION
For a road to become public property, there must be (a) a statutory dedication and an acceptance on behalf of the public, (b) a common-law dedication and acceptance, or (c) a finding of highway by public user. Village of Grandville v Jenison,
1. COMMON-LAW DEDICATION
A valid common-law dedication of land requires (a) intent by the property owner to offer the land for public use, (b) an acceptance by, and maintenance of the road by, public officials, and (c) use by the public generally. Bain v Fry,
“Common-law dedications do not ordinarily convey the fee. In fact, under the strict rule they never do.” Patrick,
We hold the correct rule to be that a conveyance of land bounded on a highway, street, or alley carries with it the fee*149 to the center thereof, subject to the easement of public way, provided the grantor at the time of conveyance owned to the center and there are no words in the deed showing a contrary intent....
2. STATUTORY DEDICATION
To create a public road by statutory dedication, two elements are required: (a) “a recorded plat designating the areas for public use, evidencing a clear intent by the plat proprietor to dedicate those areas to public use, and [b] acceptance by the proper public authority.” Kraus v Dep’t of Commerce,
Without venturing to express any definite opinion whether such a plat should be regarded as a grant or as a mere offer to dedicate, it is very clear to our minds that it is one or the other, or perhaps partakes of the nature of both, and that some action by competent public authority is essential before it can have the intended effect. If the plat is only an offer to dedicate, the offer must be accepted or it may be withdrawn, and after any considerable lapse of time must be regarded as no longer open for acceptance, unless the circumstances are such as to make the offer continuous. On this subject our own decisions have been full and explicit.
But if the plat is regarded as a grant, it is equally necessary that there should be acceptance. No one can thrust a grant upon another without his assent. It is true, acceptance of a grant may be presumed when it is benefi*150 cial, but there can be no conclusive presumption that a grant of land for a public way is so. [Id. at 449-450 (citations omitted).]
Under any other rule, duties and financial responsibilities would be imposed on the government for dedicated roads that it never knowingly or intentionally accepted. Equally undesirably, land would become waste property, owned or developed by no one. These concerns were addressed in Miller,
As the execution and recording of the plat is wholly a private matter, subject to no public supervision whatever, this view would enable proprietors of lands to lay out so many streets and avenues as they might see fit, and wherever their private interests should determine; and whether the streets were desired by the public or not, the private ownership would be displaced. Either one of two consequences must then follow: the public must be under some obligations to treat the land as constituting a street, and be subject to such liabilities as that fact would impose, or the land must remain waste property, in the hands of an owner who cannot use it for the purposes of profit, and who at the same time refuses to put it to the purposes contemplated in making the plat.
For this reason, a statutory dedication requires the same acceptance by the public as a dedication at common law.
As in a common-law dedication, before acceptance, an offer to dedicate may be withdrawn formally,
This overview of common-law and statutory dedications illuminates the principal similarities and differences between these modes of dedication. To create a public road at common law or by statute, there must be a clear intent on the part of the owner to dedicate, along with an acceptance by the public within a reasonable time. By either mode, “the question of dedication is one largely of intention . . . .” Weihe v Macatawa Resort Co,
C. RIGHTS OP ABUTTING LANDOWNERS
The owner of property abutting upon a street “sustains a threefold relation to the street”:
1. As one of the general public.
2. As owner of the reversionary interest to the center of the street.
3. As owner of a lot, possessed of the right of ingress and egress to and from the street. [Detroit City R Co v Mills,85 Mich 634 , 653;48 NW 1007 (1891) (opinion by GRANT, J.).]
First, the abutting landowner “has the right, in common with every other member of the public, to the use of the street.” Id. As Mills stated in this respect, “[f]ree passage is all the law gives him.” Id. “A highway is a public passage for all,” Beaubien, 2 Doug at 285, and thus every person — including the abutting landowner — is entitled to use public ways for travel.
However, in addition to right of public travel, other public uses may be implied from the dedication of land
[t]he dedication of land... must be understood as made and accepted with the expectation that it may be required for other public purposеs than those of passage and travel merely, and that under the direction and control of the public authorities it is subject to be appropriated to all the uses to which village and city streets are usually devoted, as the wants or convenience of the people may render necessary or important[.] [Warren v Grand Haven,30 Mich 24 , 28 (1874) (holding that the municipality had the right to construct sewer lines beneath land dedicated for a public road).]
As this makes plain, the extension of public rights in the streets set forth in Mills has not been thought to be contrary in any way to the central principle of dedication, i.e., that the use of land dedicated to the public depends on the dedicator’s intention and may not be appropriated to an entirely different use. See White’s Lessee,
Mills respects the municipality’s “exclusive control” over a roadway in accordance with the use to which it was dedicated. In re O’Brien,
“if a dedication is made for a specific or defined purpose, neither the legislature, a municipality or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private, and whether the dedication is a common-law or a statutory dedication!.]” [Baldwin Manor, Inc v City of Birmingham,341 Mich 423 , 430-431;67 NW2d 812 (1954) (citation omitted).]
Following this fundamental proposition, this Court held in Baldwin Manor that the city was prohibited from putting a road across land dedicated for use as a park because that use was inconsistent with the purpose of the dedication. Id. at 434. Similarly, in Village of Kalkaska v Shell Oil Co (After Remand),
This rule appears beyond reproach. In considering a predecessor of the current vacation statute, this Court explained in Loud,
Our understanding is that the city has no proprietary interest in the land, all of its authority over it growing out*157 of its legal duty to maintain the public ways, which are placed in its charge. Such interest in the land is in the abutting proprietors ordinarily .... [Citation omitted.]
Third, the abutting landowner’s relationship to the street includes a right of access to his or her own property. This right is considered a natural easement and one of the incidents of ownership or occupancy of land. See Kirchen,
The purchasers of lots in the original plat took not only the interest of the grantor in the land described in their respective deeds, but, as an incorporeal hereditament appurtenant to it, took an easement in the streets, parks and public grounds mentioned and designated in the plat as an implied covenant that subsequent purchasers should be entitled to the same rights. [Citation omitted.]
This “right of access” is considered a “private right” that flows from a deed that refers to a plat, and is distinct from the public’s rights in the road. See id. (explaining that “ ‘[t]he lot owners have a peculiar interest in the street which neither the local nor general public can pretend to claim; a private right in the nature of an incorporeal hereditament’ ”) (citation omitted). And it is well settled that this right of access constitutes a property right that adds value to the land. See State Hwy Comm v Sandberg,
In summary, our caselaw has long recognized a landowner’s multi-faceted relationship to a public
IV ANALYSIS
With this legal background of the law of dedication, we may now turn to the central questions in this appeal: the nature of the property interest conveyed by the 1887 plat act, and how that property interest affects riparian rights.
A. PLAT ACT OF 1887
The North Charlevoix plat was properly recorded, the Charlevoix County Board of Supervisors accepted the dedication of streets in 1911, and the CCRC has continued to maintain the streets. It is undisputed that the elements of a statutory dedication of a public road were satisfied for the road at issue. The dedicаtion is controlled by the plat act in effect at the time the plat was recorded,
*159 The map so made and recorded in compliance with the provisions of this act shall be deemed a sufficient conveyance to vest the fee of such parcels of land as may be therein designated for public uses in the city or village within the incorporate limits of which the land platted is included, or if not included within the limits of any incorporated city or village, then in the township within the limits of which it is included in trust to and for the uses and purposes therein designated, and for no other use or purpose whatever. [Emphasis added.]
The emphasized language is virtually identical to that of the first plat act of 1839, as well as to that of each successive platting statute until 1967. The 1967 statute, originally titled the Subdivision Control Act and now titled the Land Division Act, refers to the vested interest as a “fee simple” instead of a “fee,” but is substantially similar in all other respects. MCL 560.253(1).
The operative language makes clear that the statute conveys a “fee” that is expressly limited by the terms of the dedication. That is, the fee is held “in trust to and for the uses and purposes therein designated, and for no other use or purpose whatever.” Accordingly, we first observe that the language used in the dedication of the plat is significant, indeed controlling, because no rights vest in the grantee beyond those that are “therein designed,” and the land shall be used for “no other use or purpose whatever.” Furthermore, we observe that, under this statute, a dedication is not presumed to be broad, requiring express words in the dedication to
There is further evidence from the plat act that the property interest conveyed by the statute is a “fee ... in trust” that is limited in scope and duration. Early decisions of this Court shed light on the original understanding of this interest. In the first case in which we considered the platting statute, People v Beaubien, we described its purpose as follows:
This statute, as is apparent on its face, was designed to provide an explicit mode for the dedication of streets and other grounds designed for public uses, upon the laying out of towns by individual proprietors, and to render the rights of purchasers, and the public generally, in grounds thus dedicated, definite and certain. It also obviated the difficulty met with in some of the cases in the application of common law principles of dedication, in regard to ownership of the fee, by providing that, upon compliance with the provisions of the act, this should vest in the county, in trust for the designed uses. [Beaubien, 2 Doug at 270.]
Beaubien was cited favorably several years later in Wanzer, in which the Court explained how a statutory dedication operates in conjunction with the rule that the government retains its interest only as long as it uses the road as a road. Wanzer,
Then, in a series of cases dating from 1875-1899, this Court repeatedly considered the property interest conveyed by the platting statutes and further defined its nature. Arguably the most instructive articulation was by Justice COOLEY in Miller,
It is not very clear what sort of title the act of 1839 designed to vest in the county, whether a fee simple, or only a conditional fee, or possibly a perpetual easement. There are some questions which suggest themselves here which we should be quite indisposed to encounter until it should become absolutely essential. Unquestionably the purpose was to vest in the county such a title as would enable the public authorities to devote the lands to all the public uses contemplated in making the plan, and to charge them with corresponding obligations when the title should vest. It is very clear that no purpose existed to give a title in the nature of a private ownership. This is all we deem it necessary to say on this point in the present case, and further questions must be dealt with when they arise.
Then, in Bay Co v Bradley, we explicitly posed a question that is central to the instant case. That is, “what is the position of the county as respects a strip of
[The county] acquires no beneficial ownership of the land, and exercises no volition about the transfer. Willing or unwilling, the law vests it with nominal title. It does not accept and cannot refuse. It cannot grant or otherwise dispose of the premises, and has no voice concerning the use. It is powerless to shorten the continuance of the easement, but other agencies may at any time bring it to an end, and in case of that the law does not allow even this figment of ownership to remain. In such event what was in the county vests in others. [Id. at 166.]
In another seminal plat act case, Backus v Detroit, the Court concluded that the city could build a wharf in the Detroit River at the end of a street dedicated in a plat governed by the platting statute. Backus,
And finally, in Patrick v Young Men’s Christian Ass’n of Kalamazoo, the Court once again addressed a dedication under a plat act and settled on this descriptive term of art for the property interest at issue: “A plat conforming to the statute . . . operates as a conveyance of a fee, though probably it is a base fee.” Patrick,
Thus, by the turn of the last century, this Court had provided ample direction on the nature of the property interest created by the early plat acts. Through a conveyance by a platting statute, the county does not receive “title in the nature of a private ownership,” Miller,
We pause at this word “nominal” to emphasize the obvious, i.e., that thе property interest conveyed by these early platting statutes is a fee in name only. The nomenclature used to describe this particular property interest in the state of Michigan for over a century has been a “base fee.” Patrick,
Thus, both the text and precedent support two inferences about the nature of the property interest conveyed under the 1887 act. First, the principal purpose at which the early plat acts was directed was “to render the rights of purchasers, and the public generally,. .. definite and certain” and to “obviateQ the difficulty met with in some” common-law dedications. Beaubien, 2 Doug at 270. As Patrick explained,
[t]he statute in question provides in express terms that the plat shall have the effect to convey the fee of land dedicated to public uses to the county... . [There are] sufficient reasons for a statute which should give to a formal offer of dedication of public ground by a plat the effect of a conveyance by way of grant to uses, and providing a grantee. [Patrick,120 Mich at 191 .]
Second, just as it is clear that the statute was designed to render private and public property rights more certain than at common law, it is equally clear that the statute was not designed to expand the rights in dedi
B. RIPARIAN RIGHTS
Riparian rights are property rights. Peterman v Dep’t of Natural Resources,
H]n the absence of an intention of the parties appearing to the contrary, the conveyance of a pаrcel of land bordering on a highway contiguous to a lake shore conveys the appurtenant riparian rights. [Croucher,271 Mich at 344 .][20]
Thus, Croucher held that the plaintiff front-lot owners, whose land was separated from the water by a public road, possessed riparian rights.
Between 1966 and 1976, Croucher was followed in four published Court of Appeals decisions. Mich Central Park, 2 Mich App at 197; Sheridan,
When the Court of Appeals next considered the issue in Sheridan,
The defendants ask us to distinguish Croucher because the government in that case had only a highway easement, whereas Roscommon County is said to have a fee simple title to the boulevard property involved in this case under the terms of the plat act in effect when the subdivision plat was recorded.1887 PA 309 . Actually, that statute provided that the government would take a fee “in trust to and for the uses and purposes therein [the plat] designated, and for no other use or purpose whatever”. Even if a distinction is possible we will not adopt it. There are problems with the Croucher rule, but an exception vesting the riparian rights in the public would create problems of its own — including the need to precisely define the underlying title in every case. Croucher at least offers uniformity, a more attractive feature than any offered by the defendants’ proposed distinction. {Id. at 564-565.]
We granted leave in McCardel and affirmed in part and vacated in part. McCardel,
Assuming, arguendo, that the plaintiffs own the riparian or littoral rights as an incident of front lot ownership, it does not follow necessarily that the public does not have the right to enter and leave the water from the boulevard. The question to which the parties have devoted most of their attention in this litigation (ownership of the riparian or littoral rights) is, again, not dispositive. The question whether the public has the right to enter and leave the water from the boulevard, like the question whether they may lounge and picnic on the boulevard, depends, rather, on the scope of the dedication. [Id. at 97.]
With the benefit of McCardel, we again addressed a riparian dispute involving front-lot owners in Thies. Thies concerned a privately platted walk running parallel to the shore. Although the back-lot defendants argued that the case should be distinguished from Croucher because of this fact, we disagreed. Citing Croucher and its progeny approvingly, Thies explained:
The cases which have applied Croucher only involved ways dedicated to public use. [Citing, among other cases, McCardel,71 Mich App at 560 ; Kempf,69 Mich App at 339 ; Sheridan,29 Mich App at 64 ; Michigan Central Park,2 Mich App at 192 .] Nevertheless, we believe that Croucher is equally applicable to ways dedicated to the private use of a finite number of persons. [Thies,424 Mich at 290 .]
Thies then stated that the question of who owns the appurtenant riparian rights as between “the plattors, the ‘front lot’ owners, or the persons to whom the way is dedicated” was “settled in this state by Croucher,” id. at 291, and reiterated Croucher’s holding:
Unless a contrary intention appears, owners of land abutting any right of way which is contiguous to the water are presumed to own the fee in the entire way,*171 subject to the easement. Since the owner’s property is deemed to run to the water, it is riparian property. [Id. at 293.]
Consistent with McCardel’s focus on the scope of the dedication, the analysis in Thies did not end here. Citing McCardel, Thies stated:
Even if we conclude that defendants merely have an easement interest in the walk and alleys, they may still prevail. Plaintiffs cannot prevent defendants from erecting a dock or permanently anchoring their boats if these activities are within the scope of the plat’s dedication, and do not unreasonably interfere with plaintiffs use and enjoyment of their property. The ownership of the walk and alleys and the scope of the dedication of these lands are interrelated, but distinct inquiries. [Id. at 289 (citation omitted).]
In summary, Michigan’s jurisprudence governing the riparian rights of front-lot owners provides several constant and guiding principles. First, front-lot owners whose property is separated by a public road running parallel to the water are deemed to have riparian rights, “such rights being derived from the common law as judicially construed by the courts of this state.” Sheridan,
In approaching any case, “[s]tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v Tenn,
The justification for this rule is not to be found in rigid fidelity to precedent, but conscience. The judiciary must accept responsibility for its actions. Judicial “rules of property” create value, and the passage of time induces a belief in their stability that generates commitments of human energy and capital. [Bott,415 Mich at 78 .]
We need not expound on this principle, but we nonetheless remain mindful of the respect due to judicial rules of property as we decide this case.
D. APPLICATION
We now turn to the lower courts’ ruling that plaintiffs are not deemed riparian under Michigan law. Specifically, the Court of Appeals concluded that because “the 1887 plat act vests in the public a fee title
The lower courts’ fundamental error was in their understanding of the property interest conveyed to the CCRC by the 1887 plat act. We are not left to analogy or intimation in ascertaining the law of this state governing the nature of this interest. The statute and our precedents dating back well over a century tell us all we need to know to decide this case. We know that the “fee” conveyed by the statute is held “in trust to and for the uses and purposes therein designated, and for no other use or purpose whatever.”
Conspicuously absent from the lower courts’ decisions is any significant discussion of the cases cited above, including this Court’s seminal cases interpreting the early platting statutes, such as Miller, Bradley, and Backus, and the Court of Appeals own indistinguishable decisions, Mich Central Park, Sheridan, Kempf, and McCardel. The “judicial rule of property” reaffirmed in this opinion is so engrained in property law that it is explicitly embodied in the Michigan Land Title Standards (5th ed), Comment B in Standard No. 24.5 (“A parcel of land separated from a natural watercourse by a highway or walkway, where the highway or walkway is contiguous to the watercourse, is riparian, unless a contrary intention appears in the chain of title.”). This Court is not writing on a blank slate in this case, any more than was the Court of Appeals in McCardel when it held on identical facts that front-lot owners are deemed riparian; or was this Court in Croucher,
For the benefit of the bench and bar, and the parties, we will briefly consider the principal arguments of the parties, none of which, in our judgment, is sufficient to overcome the clear and longstanding law of this state. First, defendant contends, and the lower courts agreed, that the 1887 plat act “plainly” and “unambiguously” conveyed to the county a “fee” title to Beach Drive. As the trial court reasoned: “The conveyance of the fee for the Beach Drive property to the public is significant.. . . Because [plaintiffs] do not hold fee title to the waterfront land in front of their respective lots, they do not possess riparian rights.” The lower courts were, of course, correct that the statute conveys a “fee.” The lower courts were also correct that our goal when interpreting a statute is “to ascertain and give effect to the intent of the Legislature” as reflected in the language of the statute, and if such language is “clear and unambiguous,” we need go no further. People v Davis,
Accordingly, when we apply the fundamental riparian doctrine by which “the interposition of a fee title between upland and water destroys riparian rights,” Hilt,
Second, defendant criticizes decisions of the Court of Appeals that have deemed front-lot plaintiffs riparian in the instant circumstances, arguing that the Court in McCardel misread and erroneously relied on Croucher because Croucher concerned an easement created by a highway by user and McCardel, like the instant case, concerned a “fee” created by a statutory dedication. For reasons already discussed, we find McCardel’s decision that front-lot owners were riparian to be the only decision that the Court could have made that would have been faithful to the statute and consonant with Michigan’s longstanding jurisprudence. We have found no authority on which the court in McCardel could have located riparian rights anywhere else than it did.
Furthermore, we do not think it necessary or helpful to focus on the distinction between an easement and a
On this point, we find relevant the words of Justice McGrath in Mills:
“Of what does property practically consist, but of the incidents which the law has recognized as attached to the title or right of property? Is not the idea of property in or title to lands, apart from and stripped of all its incidents, a purely metaphysical abstraction, as immaterial and useless to the owner as ‘the stuff that dreams are made of?’... Property does not consist merely of the right to the ultimate particles of matter of which it may be composed, — of which we know nothing, — but of those properties of matter which can be rendered manifest to our senses, and made to contribute to our wants or our enjoyments.” [Id. at 667-668, quoting Grand Rapids Booming Co v Jarvis,30 Mich 308 , 320-321 (1874).]
The riparian rights that plaintiffs and similarly situated property owners enjoy in Michigan are an “incident[] which the law has recognized as attached to the title or right of property.” Id. at 667. These rights are just as real as the soil under the street and, to these
Fourth, defendant argues, and the lower courts agreed, that the fact that plaintiffs’ property is taxed as “water view” and not “waterfront” property is significant in the determination of whether the law of this state deems them riparian. We respectfully disagree. As a threshold matter, with the law presented to us, it is not clear why we would venture from our area of principal responsibility — interpreting the law — to decide this matter on the basis of practices that we may not fully understand and that have not been significantly briefed, such as the premises of a township’s property tax assessment system. It is true that plaintiffs’ properties are assessed as “water view” property and thus are taxed at a lower rate than properties assessed as “waterfront.”
We must address one last issue that was unanswered in the lower courts’ decisions. That is, if the lower courts were correct that plaintiffs do not own the riparian rights to Beach Drive, who does'? Neither lower court answered this question, an omission that would, if their decisions were left intact, introduce obvious uncertainty into the property law of this state and engender unnecessary litigation. Indirectly, however, the Court of Appeals intimated that the county owned such rights because, the Comb concluded, the county was in “no way” limited to the type of use it may make of the road. Baum,
As a practical matter, the rule of Backus is as compelling today as it was in 1882. A road running parallel to the water is very different conceptually from a road that terminates at the water. The former may provide the public access to the water consistently with the primary purpose of a public roadway — “public passage for all.” Beaubien, 2 Doug at 285. The latter cannot. It is an untenable to say that the CCRC could exercise riparian rights to Beach Drive, a paved road running parallel to the lake that undisputedly is used for year-round vehicular travel, consistently with the
*185 The council of any village located upon or adjacent to any of the navigable waters of the state shall have the power to establish, construct, maintain, and control public wharves, docks, piers, landing places, and levees, upon any lands or property belonging to or under the control of the village, including property at the foot or end of public streets ....
The “fee” conveyed by the 1887 plat act is held “in trust to and for the uses and purposes therein designated, and for no other use or purpose whatsoever.”
Notes
As others have done, we observe that “[s]trictly speaking, land which includes or abuts a river is defined as riparian, while land which includes or abuts a lake is defined as littoral.” Thies v Howland,
“Front-lot” properties are in the first row of lots on the landward side of the disputed road. “Back-lot” properties are one or more rows further removed from the road and the lake.
The record does not contain information about the identity of the original plat proprietor. The minutes of the August 7, 1911, meeting at which the plat was accepted state that “Mr. D. C. Littleton presented the plat of North Charlevoix,” although the plat itself indicates that its proprietor was “D. C. Nettleton.” However, as we will discuss, the plat proprietor’s identity is not material. All that is necessary to know for the purposes of this case is that the original plat proprietor completely parted with his interest in the land by conveying the lots without reserve. See Turner v Holland,
The CCRC did not exist at the time of the dedication.
Plat proprietors are also known as “plattors.
Quoting the New York case of Hunter v Village of Sandy Hill Trustees,
“When these graves shall have worn away, when they who now weep over them shall have found kindred resting places for themselves, when nothing shall remain to distinguish this spot from the common earth around, and it shall he wholly unknown as a graveyard, it may be that someone who can establish a good ‘paper title’ will have a right to its possession, for it will then have lost its identity as a burial ground, and with that all right founded on the dedicаtion must necessarily become extinct.”
An offer may be formally withdrawn by vacating the plat, Gregory v Ann Arbor,
Kraus,
See Beaubien, 2 Doug at 276.
See Alton v Meeuwenberg,
“How did [the putative dedicator] act, at the time and after-wards? What use did he make of the lands, as showing an intent upon his part of dedicating the land? How was the land treated by the public authorities, with reference to its being a highway? Did they open a highway all along the line? Or what portion of it did they open? .. . These are questions for you to determine, from the evidence in the case; and, unless you believe, from the evidence, that they did, then that certain portion never became a public highway.”
MCL 560.227a(1), governing the vesting of title upon vacation of plat, street, or alley, provides:
Title to any part of the plat vacated by the court’s judgment, other than a street or alley, shall vest in the rightful proprietor of that part. Title to a street or alley the full width of which is vacated by the court’s judgment shall vest in the rightful proprietors of the lots, within the subdivision covered by the plat, abutting the street or alley. Title to a public highway or portion of a public highway that borders on, is adjacent to, or ends at a lake or the general course of a stream may vest in the state subject to [MCL 560.226],
MCL 560.226(2) specifies particular rules for discontinuing highways adjacent to a lake or stream, specifically requiring the circuit court tо determine if vacating the plat “would result in a loss of public access,” and, if so, to “allow the state and, if the subdivision is located in a township, the township to decide whether it wants to maintain the
Abandonment of a highway is subject to extensive statutory procedures and must be approved by the circuit court in the county where the road is located. See MCL 224.18; MCL 560.222; MCL 560.223; MCL 560.224a.
See MCL 560.226, MCL 247.41, and n 11 of this opinion.
It has been suggested that the Legislature’s use of “fee simple” to describe the county’s interest in the 1967 plat statute, rather than “fee,” as it used in all the predecessor statutes, is significant. While this may evidence some intention on the part of the drafters of the Land Division Act to emphasize the nature of the interest, the instant case does not require us to examine the significance of this difference. As discussed later, the language of the pre-1967 plat acts and the caselaw interpreting these statutes afford sufficient guidance.
The dissent states that Warner “clearly concluded that a statutory dedication conveyed real, ordinary fee title.” We respectfully believe that the dissent misreads Warner. The words “real, ordinary fee title” appear nowhere in that case, or in any other in which this Court has considered the property interest conveyed under a statutory dedication. Furthermore, nothing in Warner, or in any other case, supports the dissent’s reading. Rather, from the start, this Court has interpreted the proрerty interest conveyed by a statutory dedication in a manner consistent with the language of the early platting statutes as conveying a “fee ... in trust to and for uses and purposes designated ....” See Wanzer,
As discussed further below, Backus is the source of the rule in Michigan that a dedicated road that runs perpendicular to, and terminates at, the water conveys riparian rights to the receiving governmental entity. The rule from Backus governing perpendicular roads has always been considered distinct from the rule for roads parallel to the water. See Thies,
The dissent quotes further from Bouvier’s Law Dictionary (Rawle’s rev) a portion of the definition of “base fee” that Kirchen did not include, which states that “[t]he proprietor of such a fee has all the rights of the owner of a fee-simple until his estate is determined.” We find the dissent’s discovery significant, but for a different reason than the dissent does. The portions of this definition that Kirchen did, and did not, choose to include lends further support for the proposition that this Court has always viewed a statutory “base fee” as a property interest distinct from a common-law fee simple. That is precisely why Kirchen did not include the portion of the definition quoted by the dissent in its discussion. We are similarly unpersuaded by the dissent’s reference to a definition of “base fee” in Black’s Law Dictionary (8th ed), which, to the best of our knowledge, has never been cited by a court of this state in defining a
Because the dissent provides no contrary analysis of these cases, we simply do not understand how it justifies its assertion that “long-settled precedent established that a statutory ‘base fee’ is a fee ownership title capable of cutting off riparian rights . ...” (Quotation marks omitted.) We do not understand which cases are the subject of this reference, because the cases cited above could not more forcefully and straightforwardly define and limit the rights conveyed in a statutory dedication to a governmental entity.
Like a common-law dedication, a “highway by user” creates a public easement. Eyde Bros Dev Co v Eaton Co Drain Comm’r,
20 Croucher thus recognized that a different result would obtain if the parties had evidenced an alternative intent, such as if a proprietor had reserved riparian rights. As Justice Cooley explained in Watson v Peters,
If, on the face of the plat, by reference to which the defendant bought, there was anything which distinctly indicated an intent on the part of the proprietors to make this case exceptional, and to reserve to themselves any rights in front of the water lots marked on it, after they should have been sold, the case would be different.
Consistent with this understanding, Croucher requires an express reservation by the plat proprietor in order for riparian rights not to attach to lots in the plat.
If such a case existed, it would certainly offer support for the dissent’s position. However, neither our research nor that of the parties and amici curiae — nor that of the dissent — has identified such a case. Given the history of the statute at issue, as well as the frequency with which this Court once considered disputes regarding statutory dedications, we find the absence of any authority for the proposition that a “base fee” conveys riparian rights to he highly significant.
Because the dissent “decline[s] to address whether the [majority’s] misreading.. . should be upheld today,” while also recognizing that “this may be one of those cases in which the incorrect but, apparently, extensively relied-upon rule ... should be allowed to stand [as a matter of stare decisis],” we do not understand why the dissent characterizes itself as a “dissent,” when, based upon some actual resolution of these matters, it might just as well turn out to be a “concurrence.”
This appears to be the crux of our disagreement with the dissent. While we agree with the proposition that a common-law fee title cuts off riparian rights, we see a clear distinction between a common-law fee and a statutory “base fee,” as that interest has long been defined in Michigan.
As discussed earlier, the other consideration in applying this rule is whether the plat proprietor has conveyed the lots “without reserve.” Turner,
This is not to suggest, however, that a base fee and an easement are indistinguishable. Our survey of the law of dedication reveals several differences. First, when an easement is created by a common-law dedication, the fee in the soil remains in the proprietor. The same is not the case when the government holds a base fee. Second, because of the fact that the proprietor never parts with the fee when the government holds an easement, the owner of land аbutting a public easement automatically takes free title when the road is abandoned and the easement is extinguished. By contrast, an owner of land that abuts abase fee holds a reversionary interest and takes title upon abandonment by prescribed and detailed statutory procedures. See, e.g., MCL 224.18. Third, and perhaps most importantly, our discussion of common-law and statutory dedications indicates that the rights of the receiving governmental entity in possession of a base fee are more secure and stable than those of an entity possessing a mere easement. This is because the intent to dedicate in a statutory dedication is clear and the dedicator is estopped from denying the dedication by virtue of the requirement that the plat be actually recorded. It may be difficult today to appreciate the significance of this, because disputes regarding public dedications are now relatively rare — largely, in our judgment, because of the constancy of our law in this realm since well before the previous century — but our early caselaw makes clear that this change in the common law was significant. Beaubien, 2 Doug at 270 (explaining that the plat act “obviated the difficulty met with in some” common-law dedications); Patrick,
Defendant posits two additional arguments in an attempt to undermine the authority of McCardel and Croucher. First, it argues that an 1850 Illinois case cited in Croucher, Haven, 11 Ill 554, suggests that Croucher would not have deemed front-lot plaintiffs riparian if the road had been dedicated by statute. As a threshold matter, it is unclear why we would focus on this out-of-state case when our own caselaw on this subject is more than adequate. Clearly, it better behooves us to look to the significant number of Michigan decisions from this era that illuminate the nature of a “base fee” in this state. Moreover, we are not convinced that defendant’s understanding of the citation of Haven in Croucher is correct. In surveying the persuasive law on this issue, Croucher cited Haven as contradictory authority, explaining that Haven “was determined by the law of Illinois by which the fee of the land under a dedicated street is held to be in the municipal corporation. Confessedly that would not he true in the instant case.” Croucher,
Defendant contends that the emphasized language demonstrates that Croucher saw the distinction between an easement and a “fee” as determinative. This conclusion, however, is belied by the fact that Croucher also cited Johnson,
By the same token, we are not persuaded by defendant’s reliance on MCR 7.215(C)(2) and (J)(1), governing the precedential effect of published Court of Appeals opinions under the rule of stare decisis, and do
An assessor for defendant township provided an affidavit explaining that as “water view” property, plaintiffs’ properties were assessed using a figure of $2,000 a front foot along Beach Drive. Had the properties been assessed as “waterfront” property, the front-foot assessment figure would have been $6,000.
As plaintiffs’ counsel explained at oral argument: “[T]here is a road that goes between the platted front lot line and [plaintiffs’] riparian property, that makes that property less valuable to a third-party buyer than if no road were there.”
Despite this absence of authority, the dissent would substantially redefine the property interest at stake and conclude that a base fee cuts off the riparian rights of a private landowner and conveys such rights to the county.
When the CCRC filed its counterclaim, it did not assert any claim to riparian rights. Rather, its counterclaim was directed at the alleged encroachments to its property interests. It was only after the trial court ruled that plаintiffs were not deemed riparian that the CCRC changed its position. Even so, its position has continued to evolve. In its brief in opposition to plaintiffs’ motion for reconsideration, it argued:
Just because the public, under current law, cannot fully use the water adjacent to its fee ownership does not mean that the riparian rights rest or remain with someone else. It just means that such rights are not fully exercisable by anyone associated with a particular parcel of property.
In its brief in this Court, the CCRC now claims that it is entitled to use the roadway to provide public access to the water and maintain a public dock for temporary mooring while coming to and from the lake, both of which activities are inherently riparian.
We further note that since 1895, the distinct rule applying to roadways terminating at the water has also been recognized by statute. MCL 67.35, the current of version of
Dissenting Opinion
(dissenting). I respectfully dissent, because I conclude that long-settled precedent establishes that a “statutory ‘base fee’ ” is a fee ownership title capable of cutting off riparian rights and no precedent from this Court has established a contrary rule.
“At the common law, when the owner of land has laid it out into village lots, intersected with roads and public squares, such roads and squares are dedicated to the public use. But it is not the fee of the land which passes in such cases; the public have only an easement in the land, the fee itself for all other purposes remains in the owner.” Wanzer v Blanchard & Buckland,
This Court has explained that the “statutory ‘base fee’ ” conveyed by the plat act is “a fee which has a qualification аnnexed to it.” Kirchen v Remenga,
This Court’s explanation in Kirchen that the term “base fee” was “used in the sense of a fee which has a qualification annexed to it” relied on 1 Bouvier’s Law Dictionary (Rawle’s 3d rev), p 329. Kirchen,
This is consistent with the definition of a “base fee” in Black’s Law Dictionary (8th ed). Black’s Law Dictionary
Riparian rights attach to land that actually touches water, but “interposition of a fee title between upland and water destroys riparian rights, or rather transfers them to the interposing owner.” Hilt v Weber,
This Court has seemingly held to the contrary, but a careful reading of that precedent reveals that this Court actually reached no such contrary conclusion. In Croucher v Wooster,
Superficially, this appears to create a bright-line rule, and, indeed, panels of the Court of Appeals believed that it did. See McCardel v Smolen, 71 Mich App 560, 564-565;
This Court later explicitly clarified that the relevant inquiry is “whether the abutting landowner owns the fee in the way which separates his property from the water . . . .” Thies v Howland,
It appears that in McCardel and the cases cited therein, the Court of Appeals simply assumed that Croucher had established a bright-line rule, when, in fact, it had not. It is undisputed that an easement is not fee ownership. And well-settled Michigan precedent establishes that a statutory “base fee” under the plat act is fee ownership.
Nonetheless, I recognize that there are cases in which the soundest and most pragmatic application of stare decisis would have this Court decline to overrule incorrectly decided precedent. This Court should, after all, consider such issues as the practical workability of the rule, the extent of reliance thereon, whether chaos or other harm would ensue from overruling it, and whether a change in facts, jurisprudence, or perspective has altered the rule’s significance. See Planned Parenthood of Southeastern Pennsylvania v Casey,
This may be one of those cases in which the incorrect but, apparently, extensively relied-upon rule from McCardel and its predecessors should be аllowed to stand. It may be so notwithstanding the fact that the abutting property owners may not have
I state only that the McCardel line of cases from the Court of Appeals and the majority today misread the precedent of this Court. I decline to address whether the misreading of Croucher should be upheld today, because I am of the view that it is not possible to draw reliable conclusions about what the law should be without first understanding what the law is and how it came to be that way. From the majority’s conclusion that a “statutory ‘base fee’ ” is not true fee ownership, I respectfully dissent.
A few years later, Justice Cooley would explain that the interest passed was fee title, but that this was of “no special importance” because the governmental entity nevertheless held that title “only in trust for street purposes.” Backus v Detroit,
Village of Grandville has been cited more recently for the proposition that a statutory road dedication does indeed vest actual fee title in the county, albeit to be held in trust. Village of Kalkaska v Shell Oil Co (After Remand),
Of course, the overriding consideration is always the intent of the plat proprietor, so if the lot is described as having riparian rights or touching the water, that is effectively a reservation of rights by the plat proprietor— specifically, a reservation of riparian rights for the lot. In the instant case, the lot descriptions in the plat very clearly did not extend to the water’s edge.
This would have been the situation for most public ways that predate the first plat act. See Baker v Johnston,
In other words, as this Court has so often explained, when the Legislature used the word “fee,” the Legislature meant exactly what it said.