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On February 12, 2020, the Ottawa County Circuit Court issued a decision in the consolidated cases Duke, et al v Wittenbach, et al, Case No 19-5989-CH and Wittenbach v Duke, et al, Case No 19-5995-CH.  The Duke cases are interesting because at first glance they appear to arise out of the intersection of riparian rights and property owner rights but are ultimately resolved through the application of the ordinary easement principles described in more detail below.  Nonetheless, given the increase in Great Lakes water levels, the issues presented in the Duke cases may resurface in future cases, and the Court’s means of resolving the dispute could be applied in any such future cases.

 

Background

In Duke, there were three categories of parties involved.  First, there was Duke, who owned beach and dune property along Lake Michigan and enjoyed riparian rights arising out of that property ownership.  Second, there was Wittenbach and Delongchamp, who owned a lot immediately adjacent to Duke’s property opposite Lake Michigan.  Duke’s dune and beach separated Wittenbach and Delongchamp’s property from Lake Michigan.  Wittenbach and Delongchamp owned several cottages on their property.  In 2018 and 2019 Wittenbach and Delongchamp became concerned that the rising water level of Lake Michigan would erode the land supporting their cottages leading to their eventual collapse.  Accordingly, they began investigating the construction and installation of a seawall or revetment in Duke’s dune to protect their cottages from collapsing “down the vanishing dune.”

 

The third category of parties involved consisted of the lot owners of a nearby subdivision (administered by the Dunes Association), who held an express easement in Duke’s “bathing beach” on Lake Michigan immediately west of Wittenbach and Delongchamp’s cottages.  The Dunes objected to the construction of the revetment on the basis that it would adversely affect their use of their beach easement.

Although there does not appear to have been a written easement on this particular issue, the trial court found that Wittenbach and Delongchamp (referred to as the “defendants” in the decision), held a non-exclusive easement in Duke’s dune and beach for accessing Lake Michigan through the use of stairs and a viewing deck, sunbathing, and other recreational activities.  The scope of the defendants’ easement, however, exceeded that of the Dunes lot owners, since the Dunes lot owners did not have the right to maintain decking and stairs in the dunes area even though the defendants did have this right.

 

General Easements Principles

The principles applicable to the evaluation of easements were recently described in Smith v Straughn:

An easement is a limited property interest; it is the right to use the land burdened by the easement for a specific purpose.  The easement holder’s use of the easement is limited to the purposes for which the easement was granted and must impose “as little burden as possible to the fee owner of the land,” but the easement holder nevertheless enjoys “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.”  The necessity of an easement holder’s conduct can be informed by the purpose and scope of the easement, in addition to the easement holder’s accustomed use of the easement.

A fee owner may use his or her land on a servient estate for any purpose not unreasonably inconsistent with the rights of the easement holder.  “What may be considered a proper and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper use, as well as what may be necessary to [the easement holder’s] use and enjoyment, are questions of fact to be determined by the trial court or jury.”

Court of Appeals Docket No 345391, 2020 WL 448304, at *2–3 (Mich Ct App Jan 28, 2020) (citing Kirby v Meyering Land Co, 260 Mich 156, 168-170; 244 NW 433 (1932); Cantieny v Friebe, 341 Mich 143, 146-147; 67 NW2d 102 (1954); Dept of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 378-379; 699 NW2d 272 (2005)) (quoting Harvey v Crane, 85 Mich 316, 318-319, 325; 48 NW 582 (1891), Blackhawk Dev Corp v Dexter, 473 Mich 33, 41-42; 700 NW2d 364 (2005) (quotation marks and citations omitted)).

The Michigan Court of Appeals has also held that an easement holder has a “substantial interest” in the property encumbered by the easement sufficient enough to assess and challenge the rights of others to use the land subject to the easement.  See Morse v Colitti, 317 Mich App 526, 537-538; 896 NW2d 15 (2016).  In addition, “[a] party who enjoys an easement is entitled to maintain it so that it is capable of the use for which it was given.”  Id. at 545.  In determining whether certain proposed improvements are allowed, Michigan courts apply the following standard:

[A] “fundamental principle” of property law is that the holder of an easement “cannot make improvements to the servient estate if such improvements are unnecessary for the effective use of the easement or they unreasonably burden” the servient estate.  A two-step inquiry has evolved for repairs or improvements to an easement.  The first inquiry is whether the repair or improvement is necessary for the effective use of the easement.  The second inquiry is whether the repair or improvement unreasonably burdens the servient estate.  (Morse, 317 Mich App at 545) (citations omitted).

Duke v Wittenbach

Interestingly, in its opinion, the trial court first concluded that Wittenbach and Delongchamp’s interest in preserving their cottages was not a sufficient reason to justify the construction of the revetment in the dune owned by Duke.  The trial court specifically stated:

[D]efendants do not own the land upon which the revetment will be constructed.  A private party cannot ask a court to essentially condemn or take an adjacent fee owner’s property and ‘give’ it to another.  If defendants only argued that the revetment would save their cottages, they would lose.   The easement uses described above do not grant adjacent landowners the right to use the beach easement to ‘protect’ their property and save it from falling into the lake.  (Opinion, pp. 6-7).

Instead of considering whether the cottages should be saved, the trial court conducted an analysis under Morsesupra, in an effort to determine whether the revetment proposed by the defendants was necessary for the effective use of the easement by defendants or unreasonably burdened the servient estate (and the easement interests of the Dunes lot owners).  In other words, was the revetment necessary to preserve the defendant’s use of the dunes and beach and would its installation unreasonably burden either Duke or the Dunes?  The trial court then relied on Maniaci v Diroff, ___ Mich ___; ___ NW2d ___ ; 2019 WL 6249561 (2019) and Wisniewski v Kelly, 175 Mich App 175, 177; 437 NW2d 25 (1989), to establish the principle that an easement holder may alter the land encumbered by the easement to allow the easement holder “to use the easement as contemplated . . . .”  (Opinion, p 8).

The court then found, based on the evidence and testimony submitted at trial, that the revetment proposed by the defendants satisfied the Morse standard and that the construction of the revetment would stabilize the beach area, maintain that area, and promote a more timely restoration of the beach area when/if Lake Michigan recedes.  In simple terms, the trial court concluded that the defendants had the right to maintain their easements and that their proffered method of maintaining their easement (constructing the revetment) was necessary and not only did not unreasonably burden the Duke property or the Dunes easement but would actually preserve and stabilize the property for the benefit of the property owner and any other easement holders.  The fact that such preservation and stabilization would have the side effect of preventing the collapse of the cottages down the dunes was a bonus, but not otherwise material to the analysis even if it was the main purpose of the revetment.

The court’s approach in Duke could, potentially, apply in those instances where the property owner with the soon-to-collapse cottage holds an easement in the land on which a revetment or seawall is sought to be built.  In such cases, that easement holder may have the ability to install a revetment even over the objection of the property owner or other easement holder if they are able to satisfy the Morse standard.  However, there are certain factors which could affect this analysis.  For example, the Dunes Association did not own the dunes or beach area, nor did the Dunes Association appear to have architectural control over any construction within the easement areas.  The owner of a beach area subject to an easement presented with an easement holder who seeks to construct a revetment should be able to object to the revetment if the easement holder’s proposal does not satisfy the Morse standard.  However, if an owner or administering homeowners association had reserved architectural control over any improvements within the easement area, does that subject the easement holder’s right of maintenance to the association’s architectural control?  Ideally the answer to this question would be supplied by the written document creating the easement or power of architectural control, though, as can be seen from the Duke opinion, in some instances a court is willing to find an easement where no such writing exists and no such guidance would be provided.

 

In addition, the Duke opinion touches an issue connected to the riparian rights held by Duke, namely whether the court’s analysis would have been affected in any way by the Public Trust Doctrine.

 

Public Trust Doctrine

Under the Public Trust Doctrine, derived from Michigan’s common law, “the state, as sovereign, has an obligation to protect and preserve the waters of the Great Lakes and the lands beneath them for the public.  The state serves, in effect, as the trustee of public rights in the Great Lakes for fishing, hunting, and boating for commerce or pleasure.”  Glass v Goeckel, 473 Mich 667, 678-79; 703 NW2d 58 (2005).  “[W]alking along the shore, subject to regulation (as is any exercise of public rights in the public trust) falls within the scope of the public trust.”

In applying the public trust doctrine to the oceans, courts have traditionally held that rights protected by this doctrine extend from the waters themselves and the lands beneath them to a point on the shore called the “ordinary high water mark.”  Goeckel, 473 Mich 685-86.  As applied to the Great Lakes, the determination of the “ordinary high water mark” is determined by reference to the markings on the shoreline left by the presence and action of the ebb and flow of the water.  At common law, the shore constitutes the space between the ordinary low and high water marks.  Goeckel, 473 Mich 686.    Since water levels fluctuate and water boundaries are dynamic, the exact location of the “ordinary high water mark” will shift over time.   Accordingly, the exact dimensions of the shore subject to the Public Trust Doctrine will likewise shift over time.

Private property owners who own shoreline property abutting the Great Lakes retain their property subject to the public trust.  As trustee, the state is obligated to ensure that private property owners do not “interfere with the[] traditional notions of the public trust.”  Id. at 694.  As it relates to walking along the shore, the Michigan Supreme Court has held that the public enjoys a “right of passage” which requires that the public “have a right of passage over land below the ordinary high water mark.”  Id.

The Public Trust Doctrine is relevant to the approach used in Duke and an analysis under Morse because the impact on the public (and their right of passage along the shore) of the proposed revetment in Duke would likely have been viewed comparatively to its impact on the lot owners of the Dunes (and their right to use their beach easement).  Significantly, in its analysis the trial court in Duke found that the construction of the revetment would actually “result in a present increase in the size of the bathing beach.”  Once the revetment was installed, it would also apparently permit the removal of a temporary wave break which presently separates the beach from the tide.  The end result of this process, at least under the testimony accepted by the trial court, appears to result in the preservation of the shore as a walking area by increasing the beach area and removing the temporary wave break.

From the perspective of the state itself then, whose obligation it is to protect and preserve the waters of the Great Lakes and the lands beneath them for the use of the public including the public’s right to passage along the shore, the construction of a revetment by a private property owner or easement holder could, potentially, advance the state’s interest in preserving the shore for the use of the public.

 

Addressing Erosion Directly Through Legislation

Lastly, the Duke cases arise out of an issue of growing importance to Michigan lakefront property owners—protecting beachfront property against the adverse effects of erosion and increased water levels.  The Duke cases themselves provide a possible avenue of relief by demonstrating how one can use an existing easement in someone else’s land to try to protect one’s own land, and the improvements located on that land.  There are, however, more direct ways for a state to permit its citizens to address erosion.  In fact, several bills have been proposed in the state legislature and even at the federal level dealing with the issue:

 

  • SB 714.   Michigan Senate Bill.  Introduced on January 9, 2020, SB 714 (Victory) would amend the Natural Resources and Environmental Protection Act to allow for the construction of a temporary erosion control structure without a permit under certain circumstances.
  • HB 5309.  Michigan House of Representatives Bill.  Introducted on December 19, 2019, HB 5309 (Lilly) would amend the Natural Resources and Environmental Protection Act to also allow for the construction of a temporary erosion control structure without a permit under certain circumstances.
  • HB 5310.  Michigan House of Representatives Bill.  Introducted on December 19, 2019, HB 5310 (Lilly) would amend the General Property Tax Act by amending Section 7g (MCL 211.7g) to prevent an increase in property taxes for homeowners who install certain erosion control measures.
  • H.R. 429.  United States House of Representatives Bill.  Originally introduced on January 23, 2019, H.R. 729 passed the House of Representatives on December 10, 2019.  The bill authorizes the Department of Commerce to award grants to Indian tribes to further certain tribal coastal zone objectives including implementation of any coastal or shoreline stabilization measure.

The above legislation attempts to directly address that which the Duke cases could only address in an indirect-manner. However, the above legislation may not be enacted, and the Duke cases themselves are potentially subject to reversal on appeal.  Even so, for any lakefront property owner seeking to identify ways to prevent erosion and further damage to their property, the Duke cases and the above-referenced legislation should be monitored to ensure that any recently approved means of protecting against erosion caused by increased water levels is known to that property owner.

 

Summary

The Duke cases demonstrate the practical application of ordinary easement principles to what, at first glance, appears to be a riparian rights case.  Whether the trial court’s opinion is upheld on appeal is another matter, and though there are numerous reasons why a party may wish to construct or oppose a revetment, the approach in the Duke cases can at least provide some guidance in future lakefront erosion cases under ordinary easement principles.

 

Matthew W. Heron is a Member at Hirzel Law, PLC where he concentrates his practice in real estate, community association law, condominium law, real estate litigation, and zoning and land use.  Mr. Heron also has extensive experience in a variety of litigation matters, including insurance coverage, non-compete agreements, automotive supplier disputes, and breach of contract.  He routinely appears in both federal and state courts throughout Michigan and has argued before the Michigan Court of Appeals and the Court of Appeals for the Sixth Circuit.