                          STATE OF MICHIGAN

                            COURT OF APPEALS



LAKE ADRIAN DEVELOPERS, LLC,                                         UNPUBLISHED
                                                                     December 17, 2015
               Plaintiff-Appellant,

v                                                                    No. 322511
                                                                     Lenawee Circuit Court
CITY OF ADRIAN and SAVOY ENERGY, LP,                                 LC No. 13-004851-CH

               Defendants-Appellees.


Before: JANSEN, P.J., and CAVANAGH and GLEICHER, JJ.

PER CURIAM.

       In this riparian rights case, plaintiff appeals as of right an order granting defendants’
motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm.

        This case arises from a dispute over plaintiff’s putative riparian rights to the bottomlands
of Lake Adrian, an artificial lake that was originally created by damming Wolf Creek, a natural
watercourse. Defendant City of Adrian (City) dammed the creek to create a municipal water
supply in 1941 and has exclusively maintained the resulting lake since that time. Defendant
Savoy Energy, LP (Savoy) entered into an agreement with City to provide royalty payments to
City in exchange for the rights to oil and gas exploration on numerous City-owned properties,
including the Lake Adrian bottomlands. Plaintiff owns six lots along the shore of Lake Adrian.
Plaintiff contends that it possesses riparian rights on Lake Adrian at common law and under
Michigan’s Inland Lakes and Streams Act (ILSA), MCL 281.951 et seq., and that, accordingly, it
should share in the royalty payments. The trial court disagreed, as do we.

        “This Court reviews de novo a trial court’s decision on a motion for summary
disposition.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d
223 (2013). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim. Id. at 131.
A trial court must decide the motion based on the pleadings alone. Id. Further, the court must
“accept as true all factual allegations supporting the claim, and any reasonable inferences or
conclusions that might be drawn from those facts,” id., and construe those factual allegations in a
light most favorable to the nonmoving party, Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d
817 (1999). However, the court need only accept as true the factual allegations supporting the
claim, not a party’s legal conclusions. Davis v Detroit, 269 Mich App 376, 379 n 1; 711 NW2d
462 (2005). A court may grant a motion under MCR 2.116(C)(8) “only where the claims alleged
are so clearly unenforceable as a matter of law that no factual development could possibly justify

                                                -1-
recovery.” Maiden, 461 Mich at 119 (citation and quotation marks omitted). We also review de
novo common-law claims, including those involving riparian rights. Holton v Ward, 303 Mich
App 718, 725; 847 NW2d 1 (2014).

         Riparian rights are “special rights to make use of water in a waterway adjoining the
owner’s property.”1 Dyball v Lennox, 260 Mich App 698, 705; 680 NW2d 522 (2003) (citation
and quotation marks omitted). “Among other privileges, these rights include: the right to make
natural and artificial use of the water in the watercourse; the right to construct and maintain a
dock; and the right to use the entire surface of the watercourse for recreational purposes.”
Holton, 303 Mich App at 725-726 (internal references omitted). A landowner’s “riparian rights
to water-covered bottomlands are, other than the public’s right of reasonable access to the water
itself, indistinguishable from ordinary fee ownership of dry land.” Heeringa v Petroelje, 279
Mich App 444, 451; 760 NW2d 538 (2008).

                                    I. COMMON-LAW CLAIMS

          This Court has previously noted Michigan’s straightforward rule regarding riparian
rights:

          riparian rights attach to land that abuts or includes a natural watercourse—i.e., a
          ‘natural stream of water fed from permanent or periodical natural sources and
          usually flowing in a particular direction in a defined channel, having a bed and
          banks or sides, and usually discharging itself into some other stream or body of
          water.’ Riparian rights do not attach to land that abuts an artificial watercourse—
          i.e., ‘waterways that owe their origin to acts of man, such as canals, drainage and
          irrigation ditches, aqueducts, flumes, and the like.’ [Holton, 303 Mich App at 726
          (citations omitted).]

Another panel of this Court stated it even more succinctly, holding that “it is clear under
Michigan law that no riparian rights arise from an artificial body of water.” Persell v Wertz, 287
Mich App 576, 579; 791 NW2d 494 (2010). Furthermore, “riparian rights are not alienable,
severable, divisible or assignable apart from the land which includes therein, or is bounded by, a
natural watercourse.” Thompson v Enz, 379 Mich 667, 686; 154 NW2d 473 (1967) (emphasis
added). This Court has noted with approval other states’ rationales in withholding riparian rights
from landowners whose property abuts an artificial watercourse: that it would be inequitable to
grant riparian rights to an artificial watercourse when the watercourse exists solely because of
another’s labor. See Holton, 303 Mich App at 727-728.

        Generally speaking, then, the common-law rule is that riparian rights simply do not attach
to an artificial watercourse. Persell, 287 Mich App at 579. Michigan courts have followed this


1
  We note that the bottomlands at issue in this case are more properly classified as “littoral,”
because they abut or include a lake. See Holton, 303 Mich 721 n 1. Michigan courts have
historically used the term “riparian” to refer to both rivers and lakes, however, and we will do
likewise. See id.


                                                  -2-
general principle even when the artificial watercourse was a manmade canal connected to a
natural lake, see Thompson, 379 Mich at 679-680, and when the plaintiffs argued that they had
acquired riparian rights to a large manmade pond through prescription, see Hudson v Village of
Homer, 351 Mich 73, 81-83; 87 NW2d 72 (1957). It is worth noting, as well, that the pond in
Hudson was created by damming one fork of a river, and that some of the plaintiffs in the case
owned property abutting the pond, lending the case a degree of factual similarity to the instant
appeal. Id. at 76-77.

        Given Michigan caselaw and the guiding principle behind it, we agree with the trial court
that plaintiff did not possess riparian rights on Lake Adrian. Certainly, the lake is an artificial
watercourse because it owed its “origin to acts of man.” Holton, 303 Mich App at 726 (citation
and quotation marks omitted). City dammed Wolf Creek to create a municipal water supply, and
City alone was, and continues to be, responsible for its maintenance. Accordingly, under the
rulings in Thompson and Hudson, as well as Holton, 303 Mich App at 727-728, the fact that
Lake Adrian was created by damming a natural watercourse does not exempt the case from the
general rule. City bought or acquired all of the property abutting Wolf Creek before damming its
flow, and plaintiff only bought property after Lake Adrian—an artificial lake—was created.
Accordingly, we agree with the trial court that the general rule—that riparian rights simply do
not attach to an artificial watercourse—applies here. See Persell, 287 Mich App at 579.

       Plaintiff argued below, and continues to argue on appeal, that this Court’s holding in
Holton left open the very question at issue in this case and, in so doing, created a rule by
negative implication wherein riparian rights attach to an artificial watercourse that was created
by modifying a natural watercourse. The language upon which plaintiff relies is as follows:

       Plaintiffs have made no allegations that the common owner dammed a natural
       watercourse, nor is there any evidence to suggest that he did. In fact, it appears
       that the original wetland dredged and dammed by the common owner merely
       served as a collection point for surface waters . . . . Surface waters do not give rise
       to riparian rights: said rights only attach to land that abuts a natural watercourse. .
       . . If the original wetland modified by the common owner was not a ‘natural
       watercourse,’ it is impossible for plaintiffs to have any riparian rights in the
       (artificial) pond and deeper wetland created by the common owner’s actions.
       [Holton, 303 Mich App at 728-729 (citations and quotation marks omitted).]

        Plaintiff, however, misconstrues this portion of the Holton opinion. According to
plaintiff, the above-quoted passage suggests that riparian rights could attach to any artificial
watercourse at any point in time, so long as it was not composed of surface water and had been
created by modifying a natural watercourse. Instead, the Holton Court was posing a theoretical
situation in which a common owner of a natural watercourse modified or deepened that
watercourse, possibly creating riparian rights for another common owner in the resulting larger,
deeper artificial watercourse—a situation which the Holton Court chose not to address because it
did not coincide with the facts of the case. But this theoretical scenario does not avail plaintiff.
Admittedly, City modified a natural watercourse, but plaintiff was never a common owner of the
preexisting natural watercourse, Wolf Creek. We further note that the Michigan Supreme Court
denied leave to appeal Holton earlier this year because it was “not persuaded that the questions
presented should be reviewed by this Court.” Holton v Ward, 497 Mich 980; 861 NW2d 20

                                                -3-
(2015). Consequently, despite the quoted language, and in the absence of a situation
corresponding to the theoretical one that the Holton Court raised, there is no “open question”
regarding whether riparian rights attach to an artificial watercourse that was created by damming
a natural one.

        Finally, plaintiff contends that it acquired riparian rights through adverse possession.
“[A] plaintiff must provide clear and cogent proof that possession has been actual, visible, open,
notorious, exclusive, continuous, and uninterrupted for the statutory period of fifteen years” to
establish a claim of adverse possession. Canjar v Cole, 283 Mich App 723, 731; 770 NW2d 449
(2009) (citation and quotation marks omitted). The plaintiff must also show that his or her
“actions were hostile and under claim of right, meaning that the use is inconsistent with the right
of the owner, without permission asked or given, and which use would entitle the owner to a
cause of action against the intruder.” Id. at 731-732 (citation and quotation marks omitted).

        Assuming that riparian rights could be acquired to an artificial watercourse through
adverse possession, plaintiff still fails to establish its claim. Plaintiff’s use of Lake Adrian was
not exclusive. City allowed anyone to use the lake, subject to certain restrictions such as a
boating speed limit. Plaintiff’s use was also not hostile or under claim of right because City gave
its implicit permission and because plaintiff’s use was not inconsistent with City’s rights. See id.

                                    II. STATUTORY CLAIMS

       Plaintiff next contends that the ILSA afforded it riparian rights in Lake Adrian. The
ILSA has been recodified as Part 301 of the Natural Resources and Environmental Protection
Act (NREPA). Holton, 303 Mich App at 730 n 15. Under the NREPA, MCL 324.30101(i)
defines an “inland lake” as

       a natural or artificial lake, pond, or impoundment; a river, stream, or creek which
       may or may not be serving as a drain as defined by the drain code of 1956, 1956
       PA 40, MCL 280.1 to 280.630; or any other body of water that has definite banks,
       a bed, and visible evidence of a continued flow or continued occurrence of water,
       including the St. Marys, St. Clair, and Detroit rivers. Inland lake or stream does
       not include the Great Lakes, Lake St. Clair, or a lake or pond that has a surface
       area of less than 5 acres.

MCL 324.30101(r) defines a “riparian owner” as “a person who has riparian rights,” and MCL
324.30101(s) provides that “riparian rights” are “those rights which are associated with the
ownership of the bank or shore of an inland lake or stream.”

         Plaintiff argues that, in spite of its artificial nature, Lake Adrian is an inland lake under
MCL 324.30101(i) because its surface area is greater than five acres. In turn, plaintiff asserts
that it has riparian rights in Lake Adrian under MCL 324.30101(s) because it owns the shore of
an inland lake. The plaintiff in Holton asserted the same argument, i.e., that the ILSA granted
him riparian rights to an artificial watercourse because it qualified as an inland lake by definition.
Holton, 303 Mich App at 729. This Court dismissed the plaintiff’s contentions, holding that “the
statute does not grant or enlarge riparian rights—it simply defines those terms as generally
understood.” Id. at 730. The Court went on, noting: “The use of ‘has’ indicates that MCL

                                                 -4-
324.30101(r) refers to landowners who already possess riparian rights—it does not extend
riparian rights to new groups of property holders.” Id. (emphasis added). The Court additionally
remarked that “the statute nowhere mentions that it abrogates the common law, nor does it
evince intent to do so.” Id.

        This Court’s holding in Holton controls here. Lake Adrian may indeed be an inland lake
for purposes of Part 301 of the NREPA, but MCL 324.30101 does not confer riparian rights
where none previously existed, and the statute does not abrogate or transcend the general
common-law rule discussed above. Accordingly, the trial court did not err in granting summary
disposition in favor of defendants because no factual development could possibly justify
plaintiff’s recovery. See Maiden, 461 Mich at 119.

       Affirmed.



                                                           /s/ Kathleen Jansen
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Elizabeth L. Gleicher




                                              -5-
