What is reasonable use of Michigan’s waters?
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The common law doctrine of “reasonable use” is a major element of Michigan’s water legal framework. It is a special concept in riparian law that essentially says one’s own use of the water cannot unduly interfere with navigability or the rights of others to reasonably use the water or their respective riparian properties. Technically, the term “riparian” refers to land that includes or abuts a river, while land that includes or abuts a lake is defined as “littoral”. However, riparian is commonly used to describe both types of land and is used here.
The courts have further clarified reasonable use over the years. In Three Lakes Association v. Kessler, 91 Mich. App. 371 (1979) the Court of Appeals wrote:
The definition of reasonable use must depend upon the facts of each case. Hoover v Crane, 362 Mich. 36, 40; 106 N.W.2d 563 (1960), Pierce v Riley, 81 Mich. App. 39, 45; 264 N.W.2d 110 (1978).
It is generally agreed that the rules laid down in Thompson, supra, [Thompson v Enz, 379 Mich. App. 667 (1967)] apply as controlling law. Early v Baughn, 61 Mich. App. 244, 245; 232 N.W.2d 375 (1975), Pierce v Riley, 16 Mich. App. 419; 168 N.W.2d 309 (1969).
The criteria set forth in Thompson, supra, for determining reasonableness can be summarized as follows. First, attention should be given to the size, character and natural state of the water course. Second, consideration should be given to the type and purpose of the uses proposed and their effect on the water course. Third, the court should balance the benefit that would inure to the proposed user with the injury to the other riparian owners.
So, we see that reasonable use is context sensitive. That is, what is appropriate at one location based on the characteristics of the water body or access site may not be appropriate at another. Launching and retrieving a boat with a trailer at a public road end may be one example. See the Michigan State University Extension article Water use at perpendicular vs. parallel roads: Where are public vs. riparian rights?. If the conditions and topography at a road end easily allow for launching a boat without adverse effects, it is probably a reasonable use, but if the site makes this difficult or such activity would cause undue harm to the resource, it might not be a reasonable activity. This gets at the second aspect of reasonable use as well – how the activity affects the water resource.
In the third criterion, the court is drawing from the common law principle of nuisance. The common law principle of nuisance provides that an individual’s use of his or her property cannot harm others. Sounds sort of like reasonable use, doesn’t it? One of the elements of nuisance is that the interference (nuisance) is substantial, beyond mere annoyance (the other element of nuisance is that the unreasonable use of one’s land is based on the character of the neighborhood, which is back to the context sensitivity piece). There are also both public and private aspects of nuisance. Public nuisance threatens public health, safety or welfare, or damages community resources (back to the second criteria from Thompson, supra – the effect on the water resource). Private nuisance interferes with an individual’s reasonable use or enjoyment of his or her property (third criteria – the benefit enjoyed by the individual engaged in the activity versus the injury sustained by others).
Reasonable use is an important concept to understand as a riparian property owner. Michigan State University Extension offers training on land use and natural resources for riparian property owners and local officials alike. For more information, contact a land use educator near you. Please note, nothing herein should be interpreted as legal advice. For assistance with a specific riparian property legal situation, individuals are encouraged to contact an attorney with the Real Property Law Section of the State Bar of Michigan.
