allowing the defendant to continue to dock vessels on the side of his wharf for commercial purposes over his neighbor's bottomlands, but imposing time limitsSummary of this case from Waterfront Petroleum Terminal Co. v. Detroit Bulk Storage, Inc.
Docket No. 164082.
Submitted December 14, 1994, at Grand Rapids.
Decided May 12, 1995, at 9:20 A.M.
Culver, Lague McNally (by Eric R. Gielow and Chris D. Slater), for the plaintiff.
Parmenter O'Toole (by Arthur M. Rude), for the defendant.
This case involves a dispute over the ownership of, and rights to, a boat slip. Defendants, the owners of a parcel of property that is the site of a marine contracting business (hereafter Lakeland or defendant), appeal as of right from an opinion and order in favor of plaintiff. Plaintiff cross appeals from the same order. We affirm.
Plaintiff and defendant own adjacent waterfront industrial properties on Muskegon Lake. Each parcel includes a pier that extends outward into the lake. These two piers are separated by approximately 390 feet of water that forms a fully navigable boat slip. The pier on plaintiff's property comprises the eastern side of the slip; the shoreline portion of plaintiff's property comprises the southern end of the slip. Defendant's pier is on the western side of the slip, while Muskegon Lake is at the open, northern end. Another boat slip is located on the other side of defendant's pier; defendant indicates that it controls thirty feet of that slip.
Defendant and its predecessors have used the west forty feet of the subject boat slip for the dockage of their business vessels, including tugboats and various barges employed in the marine contracting industry, for a total of approximately sixty years. That practice proved acceptable until 1989, when defendant leased its property to a marina and made improvements to its pier that extended into the boat slip. The controversy temporarily ended when the marina went bankrupt. It was revived in 1991, however, when defendant moored a World War II vintage submarine in the slip as a public museum.
Although the submarine was moved elsewhere the following year, the parties proceeded with this action to quiet title. Plaintiff claimed that the entire bottom land of the slip was within the boundaries of its property, precluding defendant from any long-term dockage of its vessels in the slip. Defendant claimed alternatively that the bottom land was owned by the State of Michigan, that it owned the bottom land to the center line of the slip, or that it had acquired the west forty feet of the slip by adverse possession.
Upon cross motions for summary disposition, the trial court determined as a matter of law that the boundary between the parties' parcels is the western shore of the boat slip, so that plaintiff is the owner of the entire bottom land of the boat slip. The court further determined as a matter of law that Lakeland had not acquired ownership of a portion of the slip by adverse possession. Finally, the court determined that Lakeland, as a riparian owner on Muskegon Lake, had the right to reasonable use of the waters of the boat slip, and that reasonable riparian use was a question of fact requiring a trial.
Following a bench trial, the court entered an opinion and order allowing Lakeland to load and unload boats and ships in the slip, but prohibiting it from anchoring vessels to the slip's lake bed and from docking vessels for more than one week without plaintiff's permission. Additionally, to the extent that defendant's improvements to its dock encroached on plaintiff's property, the court allowed defendant to keep the improvements in place upon payment of $5,000 to plaintiff within sixty days; in the absence of such payment, the encroachment was ordered removed at defendant's expense. The court also determined that plaintiff was not entitled to damages for defendant's past use of the slip and that neither party was entitled to costs or fees.
In two related arguments on appeal, defendant first contends that the trial court erred in determining that plaintiff owns the bottom land of the boat slip. Specifically, defendant contends that because the State of Michigan owns the bottom land of the Great Lakes and Muskegon Lake is part of the Lake Michigan, plaintiff has no ownership in the bottom land of the slip and defendant is entitled to share the navigable water space in the slip with all other riparian owners on the lake. We disagree and find no error in the trial court's conclusion that plaintiff owned the slip.
While title to lands covered by the Great Lakes belongs to the state, Flanders Industries, Inc v Michigan, 203 Mich. App. 15, 27; 512 N.W.2d 328 (1993), the owner of property bounded by an inland watercourse owns the bottom land of the lake or stream to the centerline. Theis v Howland, 424 Mich. 282, 288, n 2; 380 N.W.2d 463 (1985); Gregory v LaFaive, 172 Mich. App. 354, 361-362; 431 N.W.2d 511 (1988). Testimony before the trial court in this case established that Muskegon Lake meets the definition of "inland lake" as set forth in the Inland Lakes and Streams Act, MCL 281.952(f); MSA 11.475(2)(f). Further, our Supreme Court confirmed in Rice v Ruddiman, 10 Mich. 125, 135-138, 143-146 (1862), that Muskegon Lake is not part of Lake Michigan. Defendant failed to present evidence in the trial court concerning why widening the mouth of Muskegon Lake would alter the status of the lake or make the Rice decision inapplicable here. We therefore conclude that the trial court did not err in treating Muskegon Lake as an inland lake rather than part of the Great Lakes.
Defendant next claims that, if plaintiff has an ownership interest in the bottom land of the slip as part of an inland lake, then the trial court erred in determining the location of plaintiff's western riparian boundary. The claim is also without merit.
As previously noted, the title of a riparian land owner extends to the middle line of an inland lake. Gregory, supra, pp 361-362. To establish riparian boundaries on an oblong lake affected by accretion, such as Muskegon Lake, a line is drawn from the point where the property line met the original lakeshore to a median center line of the lake as nearly perpendicular as possible. Id., pp 362-363.
In this case, surveyor Ralph Van Riper testified that he examined the deed describing plaintiff's property, established the parcel's parameters, and extended a line from the water's edge at right angles to the center of the lake. This was consistent with the method set forth in Gregory, supra. After performing the necessary measurements, Van Riper concluded that the entire boat slip was situated within plaintiff's property description. He also checked plaintiff's western property line against defendant's adjacent eastern property line, defined in its deed as "North 38 degrees 32 minutes West," and determined that the lines were common. Defendant's surveyor, Steve Vallier, did not testify that a different riparian line existed or that Van Riper's calculations were incorrect. On the basis of this evidence, we decline to disturb the trial court's findings concerning the location of plaintiff's western riparian boundary or its characterization of the parties' common property line as "the Easterly boundary of Defendants' property."
Defendant also contends that the trial court erred in ruling before trial that defendant had no property interest in the west forty feet of the boat slip by means of adverse possession, prescriptive easement, or acquiescence and that the court compounded this error by precluding defendant from presenting evidence to support these claims at trial. Again, we disagree.
To establish adverse possession, the claimant must show that its possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years. Thomas v Rex A Wilcox Trust, 185 Mich. App. 733, 736-737; 463 N.W.2d 190 (1990). An easement by prescription requires similar elements, except exclusivity. St Cecilia Society v Universal Car Service Co, 213 Mich. 569, 576; 182 N.W. 161 (1921). Mutual use or occupation of property with the owner's permission is insufficient to establish adverse possession. Rozmarek v Plamondon, 419 Mich. 287, 294; 351 N.W.2d 558 (1984). Further, permissive use of property, regardless of the length of the use, will not result in an easement by prescription. Banach v Lawera, 330 Mich. 436, 441; 47 N.W.2d 679 (1951). The doctrine of acquiescence provides that, where adjoining property owners acquiesce to a boundary line for a period of at least fifteen years, that line becomes the actual boundary line. McQueen v Black, 168 Mich. App. 641, 644; 425 N.W.2d 203 (1988).
In this case, correspondence between the parties, the deposition testimony of Miles McKee, and the affidavit of George Nietering all established that both the plaintiff and the defendant understood that the boat slip was on plaintiff's property and that defendant and its predecessor in interest used the slip with plaintiff's permission until 1989. Defendant's use with plaintiff's permission of property that was acknowledged to belong to plaintiff could not, as a matter of law, entitle defendant to acquire property rights in the west forty feet of the slip by adverse possession, prescriptive easement, or acquiescence. Rozmarek, supra; Banach, supra; McQueen, supra. Accordingly, we find no error.
Defendant's remaining claims are relevant to the trial court's determination regarding defendant's reasonable use of the boat slip. Defendant contends that limiting its reasonable use to loading and unloading vessels and prohibiting defendant from mooring its vessels for more than a week is inequitable under the facts of the case, ignores both the needs of defendant's business and the industrialized nature of Muskegon Lake, and fails to take into account that defendant's navigational rights supersede plaintiff's bottom land rights. Contrary to these arguments, we conclude that the trial court did not err in defining defendant's reasonable use of the boat slip.
As determined by the trial court, defendant is a riparian owner on Muskegon Lake because its pier is accreted to the shoreline and its north end abuts the lake. Use of the water by riparian owners is governed by principles of reasonableness. Pierce v Riley, 81 Mich. App. 39, 45; 264 N.W.2d 110 (1978). Thus, where there are several riparian owners on an inland lake, they may use the surface of the whole lake for boating, swimming, fishing, and other similar riparian rights, as long as they do not interfere with the reasonable use of the waters by other riparian owners. Id. The definition of reasonable use depends on the facts of the case. Hoover v Crane, 362 Mich. 36; 106 N.W.2d 563 (1960). In Three Lakes Ass'n v Kessler, 91 Mich. App. 371; 285 N.W.2d 300 (1979), however, this Court formulated a three-pronged test for determining reasonableness based on Thompson v Enz, 379 Mich. 667; 154 N.W.2d 473 (1967), and Hoover, supra:
First, attention should be given to the size, character and natural state of the water course. Second, consideration should be given 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 other riparian owners. [ Three Lakes, supra, p 377.]
The trial court's findings and decisions with respect to the question of reasonable use will not be disturbed by this Court unless we are convinced we would reach a different result. Id., p 375.
Here, Muskegon Lake is approximately six to seven miles long and one-half to two miles wide. Its natural state has given way to industrial development. Defendant's proposed uses included permanent docking and mooring privileges along the eastern side of its pier, and it contended that such privileges were essential to its business. However, this contention is severely undercut by both defendant's history of using the eastern side for nonbusiness purposes, such as mooring a submarine, and its business practice of storing unused vessels at other facilities. Moreover, the record supports the conclusion that the court properly balanced the benefit that would inure to defendant with the injury to it and other riparian owners. Defendant still retains reasonable use of its dock for loading and unloading vessels and can still dock vessels on the north and west sides of its pier. Accordingly, we cannot say we would have reached a different result concerning defendant's reasonable use had we been sitting as the trial court. Id.
We next turn to plaintiff's cross appeal. Plaintiff asserts that the trial court erred in failing to order the removal of the encroaching section of defendant's pier, in failing to award plaintiff money damages for defendant's trespass onto its riparian property in the slip, and in failing to prevent defendant from making any use of its eastern dock adjoining the slip. We disagree.
As noted above, the court correctly determined that defendants were entitled to the reasonable use of their dock. With respect to plaintiff's other claims, we are satisfied that the trial court's award was appropriate. The $5,000 award appears to constitute trespass damages intended to compensate plaintiff for the dock encroachment, which is 3.06 feet at its widest point. Plaintiff fails to explain or show on appeal that this award was insufficient or inequitable, and its argument that the court permitted defendants to "purchase" a sliver of its lake bed is meritless.
The trial court also determined that the encroaching section of the pier would have to be dismantled if defendant refused to pay the trespass damage award; thus, the court's order provides a contingency to accomplish the removal of the offending structure sought by plaintiff. Again, plaintiff fails to explain on appeal why this contingency is inequitable or unsupportable in law. While plaintiff points out that a mandatory injunction ordinarily will be granted to compel the removal of an intentional encroachment, Kratze v Independent Order of Oddfellows, 442 Mich. 136, 145; 500 N.W.2d 115 (1993), here there was insufficient evidence that the encroachment was intentional to justify a removal order. We therefore decline to find the trial court's order improper or inadequate.