Old browser warning

Site look funky?  Your browser is either Internet Explorer (hit refresh (F5) several times due to a bug in Microsoft's code that we can't work around) or is 10 years old and standards-based layouts and styling confuse it.   Consider updating.  One excellent option is Mozilla Firefox, versions of which are available for Linux, Mac and Windows. Safari 1.0+ and IE 6.0+ are also supported.

American Whitewater

Michigan Navigability Report

Summary

Navigable streams and rivers are those capable of being used for commerce, including floating commercial logs, at seasonal high flows. The public has the right to use navigable streams. Use includes wading and fishing in navigable streams; however, the law is unclear was to whether such use also includes the right to recreationally boat on the water.

State Test of Navigability

Michigan common law determines navigability, although “strictly navigable streams” are rivers that also satisfy the federal commerce test for navigability. Thus, in Michigan, a river or stream is navigable if it is sufficiently wide and deep to permit use for commercial purposes.1) The test is whether a stream inherently and by its own nature is capable of being used for commerce to float vessels, boats, rafts, or logs.2)

The navigability determination is made on a case-by-case basis and may be demonstrated where records indicate use for commercial log floating, by actually floating a number of large logs down the stream in question, or by surveying the body of water and comparing its dimensions (width, depth, rate of flow) to the reported dimensions of streams already found to be navigable.3) Even if the actual ability to float logs or allow commercial purposes is seasonal (i.e., where spring freshets occur), the public trust applies all year to that body of water.4) The public trust applies only to navigable waters, but does not attach to lakes unconnected to other waterways or to lakes with only one inlet or outlet held not to be navigable.5)

Michigan expressly chose not to adopt a recreational boating test as its state test of navigability.6)

Extent of Public Rights in Navigable and Non-Navigable Waters

In Michigan, the public has the right of navigation on every stream that is navigable. Moreover, the public right of fishing is extended to all navigable waters, including on waterways having an owner of riparian land on both sides of the water.7) Such public fishing and use of the water, however, is strictly limited to the water. A fisherman must be careful not to walk on the adjacent soil of the riparian owner. One step on the bank will be a trespass, as discussed below.8)

No court has specifically ruled on the question of whether recreational boating is a use protected by the navigation servitude. One court did note that a fisherman is quiet and unobtrusive as compared to the nuisance like behavior of recreational boaters.9) Thus, caution and consideration are needed.

Also, the public has no right to use waters not accessible by ship, or wide and deep enough for log flotation. If there is access to a small inland dead-end lake, the public may not enter over the objection of the owner of the surrounding land.10)

Miscellaneous

Willful trespass on private land, after receiving notice to depart, is a misdemeanor with a fine of up to 50 dollars and jail sentence up to 30 days.11)

1) Moore v. Sanborne, 2 Mich. 519 (1853).
2) Id.
3) America, Inc. v. Bollman et al., 709 N.W.2d 174, 219 (Mich. 2005).
4) Attorney General ex rel Director of Conservation v. Taggert, 11 N.W.2d 193, 197 (Mich. 1943).
5) Bott v. Comm. of Natural Resources of State of Mich. Dept. of Natural Resources, 327 N.W.2d 838, 846 (Mich. 1982).
6) Id. at 853.
7) , 10) Id. at 841.
8) Taggert, 11 N.W.2d at 195.
9) Bott, 327 N.W.2d at 843.
11) MI ST 750.552