IN RE: Inland Lakes and Streams Act 346
Appeal of Gordon A. Acker
File No. 88-8-71

The Natural Resources Commission, having considered the Proposal for Decision dated August 26, 1991, of the Administrative Law Judge, and the files, pleadings, briefs, and written/oral arguments in the matter, hereby determines and orders that:

The Proposal for Decision is adopted and affirmed in its totality and is further incorporated into this final decision by reference and is adopted by the Department of Natural Resources as its Findings of Fact and Conclusions of Law. (See Proposal for Decision, Cause No. 88-8-71, dated August 26, 1991, attached hereto.)

November 7, 1991

Date

Marlene J. Fluharty, Chairperson

Natural Resources Commission

IN RE: Inland Lakes and Streams Act 346 Appeal of Gordon A. Acker

File No. 88-8-71

August 26, 1991
Richard A. Patterson
Administrative Law Judge

IN RE: Inland Lakes and Streams
Act Appeal of Gordon A. Acker
DNR File No. 88-8-71

Gordon A. Acker, Petitioner
Robert D. Stanton (P22977)
Attorney for Petitioner
Walz, Stanton & Viel, P.C.

Roland Hwang (P32697)
Assistant Attorney General
Attorney for Respondent
Department of Attorney General
Natural Resources Division
P.O. Box 30028
Lansing, MI 48909<
(517) 373-7590

During the continuation of this matter the Department issued a Conditional Permit which is attached as Exhibit A. There is, therefore, no dispute between the petitioner and the Department so long as the Conditions of the Permit are complied with by the Petitioner.

At a continued hearing in this matter conducted on July __, 1991, two intervening parties; Paulette Devries and John Dumsch testified as to a perceived adverse impact of the activity permitted under the Conditional Permit on their alleged riparian rights. Under the Michigan Inland Lakes and Streams Act (1972 Public Act 346. Section 281.951 (1), "riparian owner" is defined as:

"a person whose has riparian rights"

and "riparian rights" are defined under subsection (m) as:

"those rights which are associated with the ownership of the bank or shore of an inland lake or stream."

under section 281. 957 it is provided:

"the department shall issue a permit is it finds that the structure or project will no adversely affect the public trust or riparian rights."

Riparian rights are generally defined under the common law as:

"[including] the right to access to the water, the right to extract and use the water, to a certain extent; the right to have the stream flow in its natural course and volume or to have the body of water remain in its natural condition; and the right to additions to the land by accretions or reliction."

78 Am.Jur 2nd " Waters" sec. 265 at page 710.

Mrs. Devries testified that the property she and her husband now own was purchased from Pauline Hicks and deeded to them in fulfillment of a land contract on July 6, 1988. She admits that they do not have land abutting the old mill pond and that the eastern border of the property is half way into Old Mill Pond Road. However, she states they had permission from Mrs. Gillies, an adjacent neighbor, to use her property to gain access to the mill pond. While she believes this was in writing, she could not produce any written instrument. Riparian rights only attach to land that abuts a waterway by definition. Therefore, at best, under these circumstances, they may have had a license to use Mrs. Gillies property to gain access to the mill pond. I cannot conclude that this rights would alleviate to that of riparian rights and, therefore, in that they have no riparian rights, there would, ipso facto, be no impact as to them to be considered.

Mr. Dumsch testified and produced a deed to the property owned by his wife and him which, after a metes and bounds description, states: "including the land lying between the southeasterly line thereof and the waters edge of the Old Mill Pond and all rights of riparian use to the waters of said pond."

There is no question, therefore that they have riparian rights to the Old Mill Pond. He admits that the stream as it presently exists, having been diverted by the flood, does not traverse his property. He also admitted that he is aware of no legal requirement that Mr. Acker maintain the Old Mill Pond in perpetuity. Therefore, the Dumsch's having riparian rights to the Mill Pond only can only be benefitted by the implementation of the Conditional permit.

Mr. Acker, the petitioner, testified that because of the present conditions and regulations, it is impractical or prohibitively expensive to immediately reestablish the mill pond. He does not absolutely foreclose that possibility, however.

Mrs. Devries presently has water traversing her property which has been the case since mid-September, 1986. During the flooding a berm, which diverted the course of the stream onto the Acker property, was washed out, creating the condition as it presently exists where the course of Ryan's Creek now runs through the Devries property. The testimony is abundantly clear that

preexisting the 1986 flood, the course of the stream ran through the Acker property where a grist mill had historically been operable. The flowage rights to Ryan's Creek had been specifically deeded to Mr. Acker's predecessors and title in 1900 and have been deeded by chain of title to Ackers as the present owner. Therefore, the flowage of the stream existed continuously from the late 1800s to the flood of 1986. The flowage of Ryan's Creek, as it presently exists, through the Devries property (which ultimately courses to the confluence with the Muskegon River) can, therefore, only be legitimately considered an artificial condition.

The question then becomes whether or not one may obtain riparian rights to a condition artificially created. Stated another way, does the proprietor of land so benefitted by the artificial condition have a right to have such condition continued, or at least, to have it left undisturbed.

While there appears to be widely differing opinions in different jurisdictions, Michigan seems to have definitively decided the issue in the negative. The case of Goodrich -v- McMillan, 17 Mich 630 involved a suit by cottage owners on a lake to compel the defendant to restore a dam at a mill site in such a manner as to restore the artificial level of the lake subsequent to the removal of a dam on the Defendant's property. The Michigan Supreme Court on page 633 stated

"In the absence of peculiar circumstances sufficient to constitute an estoppel upon the owner of the prescriptive right, or to give the adverse party himself an adverse right, the better opinion is that mere acquisition of a prescriptive right to an artificial condition of water will impose no obligation to maintain such condition. The reason for this is that adverse use is necessary to establish prescriptive rights."

Therefore, it is my opinion that Mr. and Mrs. Devries do not have riparian rights in the stream as it is coursing their property at present. Under the Michigan Inland Lake and Streams Act (1972 Public Act 346, Section 281.957) it is stated

"The department shall issue a permit if it finds that the structure or project will not adversely affect the public trust or riparian rights ..."

There is no issue as to the involvement of the Public Trust in this matter and, as previously stated, the conditional permit will not adversely affect riparian rights of the Devries or Dumsch in that, as previously found, they do not, in fact, have riparian rights.

Based on the foregoing, it is proposed that the conditional permit agreed to between the Department and the petitioner be implemented.

Richard A. Patterson

Administrative Law Judge

Department of Natural Resources

Dated: August 26, 1991

IN RE: Inland Lakes and Streams

Act Appeal of Gordon A. Acker

DNR File No. 88-8-71

/

Gordon A. Acker, Petitioner

Robert D. Stanton (P22977)

Attorney for Petitioner

Walz, Stanton & Viel, P.C.

Roland Hwang (P32697)

Assistant Attorney General

Attorney for Respondent

Department of Attorney General

Natural Resources Division

P.O. Box 30028

Lansing, MI 48909

(517) 373-7590

1 - Complaint for Declaratory Judgement

2 - Photograph of natural creek bed

3 - Photograph of creek entering spillway

4 - Photograph of top of natural creek band

5 - Photograph of creek bed behind Acker priors to flood

6 - Photograph of railroad bridge

7 - Photograph of road and bridge

8 - Photograph of washed out road and bridge

9 - Photograph of spillway after flood

10 - photograph of creek bed behind Acker house after flood

11 - Photograph of Jim Anger on spillway after flood

12 - Photograph of silt and river after new course

13 - Photograph of silt and Muskegon River

14 - Photograph of silt and Muskegon River

15 - Photograph of erosion as result of new creek bed

16 - May, 1909 plat of Big Rapids Township

17 - Detail of above map

18 - Memorandum of agreement, August 17, 1904

19 - Permit for repair

20 - Large white hand drawn map

21 - Copy of Township may

22 - Aerial photograph of Big Rapids

23 - Permit (conditional)

24 - Plat depicting route of creek before pond

25 - Deed

26 - Envelope of photographs

27 - Deed

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