Marquette

Marquette

Luce

Alger

Schoolcraft

Chippewa

Mackinac

Delta

Beaver Island

Emmet

Cheboygan

Fox Islands

Charlevoix

Manitou Islands

Leelanau

Crawford

Grand

Kalkaska

Traverse

Benzie

Missaukee

Wexford

Manistee

Mason

Oceana

Newaygo

Mecosta

Gladwin

Isabella

Montcalm

Muskegon

Kent

Oscoda

RoscomOgemaw

mon

Clare

Osceola

Lake

Montmorency

Alpena

Otsego

Antrim

1836 Ceded lands and water

Presque Isle

Midland

Gratiot

MICHIGAN

Ionia

Ottawa

Public Rights to Fish and Hunt

On Lakes and Streams:

A Primer for Michigan’s Indian Tribes

by Christopher Bzdok, Michael Grant,

and William Rastetter

OLSON, BZDOK & HOWARD, P.C.

www.envlaw.com

© 2008

Published Spring 2008

OLSON, BZDOK & HOWARD, P.C.

420 E. Front St.

Traverse City, MI 49686

Contact: Bill Rastetter, Tribal Attorney

(231) 946-0044

Purpose of this Report

This report is meant to assist members of the five Indian Tribes who are political

successors to signatories of the 1836 Treaty of Washington.1 Those Tribes are: Bay

Mills Indian Community; Sault Ste. Marie Tribe of Chippewa Indians; Grand Traverse

Band of Ottawa and Chippewa Indians; Little River Band of Ottawa Indians; and Little

Traverse Bay Bands of Odawa Indians.

The 2007 Consent Decree governing inland fishing and hunting rights for the five

Tribes says that Tribal members may fish and hunt on lands and waters that are open

to the public. Therefore, the three questions that need answering are:

(1) What lakes and streams does the public have a right to use?

(2) How does the public access a lake or stream?

(3) What fishing hunting and activities are allowed on a lake or stream?

Having answers to these questions should help Tribal members exercise their

fishing and hunting rights under the 1836 Treaty and the Consent Decree. Because

this report is a primer on the rights of the public to access Michigan’s inland lakes and

streams for fishing and hunting, it may be useful for others as well.

About the Authors

Olson, Bzdok & Howard, P.C. is a public interest law firm specializing in

environmental and Indian law throughout the State of Michigan and the Midwest.

William Rastetter has more than 35 years of experience in federal civil litigation,

Indian law, civil rights and property law. He has represented the Grand Traverse Band

of Ottawa and Chippewa Indians since 1980 in extensive litigation involving rights

reserved by the Indian Tribes signatory to the March 28, 1836 Treaty of Washington.

Christopher M. Bzdok specializes in environmental litigation and water law. He

is also an Adjunct Professor at Michigan State University College of Law, where he

teaches environmental law and water law.

Michael C. Grant specializes in land use and environmental law. He worked

several years for non-profit land use and environmental organizations prior to attending

law school.

More information about the firm can be found at www.envlaw.com.

A note about format

The goal of this report is to provide practical information for a general audience.

Therefore, to the extent possible it is written with a minimum of legal jargon. For

lawyers and other interested parties, the endnotes of this report contain detailed legal

annotations to support and elaborate on the points made.

What lakes and streams does the public have a

right to use?

There are two main categories of public access to an inland lake or

stream: (1) the common law public trust doctrine; and (2) public access sites

and access points.

Category 1: Lakes and streams protected by the public trust

Background of the public trust doctrine

The public trust doctrine says that certain natural resources are owned

by the state and held in trust for the people.2 Therefore, the public’s right to

use these natural resources for certain traditional activities is protected from

interference by private parties.3 In Anglo-American legal history, the public

trust doctrine is almost 2,000 years old.4 In other cultures it may be even older.

In state law, the public trust doctrine was passed down from the European legal

system to the American legal system and then to Michigan when it became a

state.5

In Michigan, the public trust doctrine has been applied to the Great

Lakes,6 the shores of the Great Lakes,7 and navigable inland lakes8 and

streams.9 These are the natural resources for which there is a recognized

right of public use under state law. With respect to navigable inland lakes and

streams, the beds of these water bodies are owned by the adjacent property

owners.10 However, those property owners’ use of the water is subordinate

to the traditional activities protected by the public trust.11 In the case of a

conflict between traditional, protected public uses and private uses, the public

uses prevail.12 For inland lakes and streams, the traditional activities that

are protected by the public trust are bathing, swimming, wading, fishing, and

boating, including the temporary anchoring of boats.13 (More about this at

page 7, below.)

What makes a stream public?

What determines whether inland streams are navigable and therefore

public? A historical test called the log-float test.14 The log-float test arose in

Michigan in the 1850s in response to the widespread use of rivers for moving

saw logs.15 The log-float test says that a stream is navigable if it is capable of

floating an unspecified number of commercial-sized saw logs.

A stream may have enough water to float logs at certain times of the year,

and not enough water to float them at other times.16 Older cases say this

means the stream would only be public during the times of year when there

was enough water to pass the log-float test.17 More recent cases suggest that

if a stream has enough water to pass the log-float test at some times during

the year, it is navigable and public all year round.18

In order to be navigable, the stream must be capable of floating the logs

in its natural state.19 If a dam must be used to raise the water levels to flood

stage so that the logs can be flushed downstream when the dam is detonated,

1

the stream does not pass the log-float test.20 However, if natural obstacles

such as fallen trees must be removed from the stream in order to float logs

down it, the stream will still pass the log-float test.

While something of an anachronism, the log-float test remains the law

today.21 Attempts to expand the scope of navigable waters to those which can

be floated in a kayak or canoe have so far been rejected.22 The issue is still

debated, however, and may be reviewed by the courts again.23

How does one determine whether a stream passes the log-float test? The

courts recognize four methods:

1.

finding evidence that logs were historically floated on the

stream;

2.

comparing the water body to other streams that have been found

to be navigable by the courts;

3.

determining if the water body has already been found navigable

by a court; or

4.

conducting a demonstration test by floating logs down the

stream.24

What makes an inland lake public?

Most inland lakes will float commercial-sized saw logs. Therefore, whether

an inland lake is public is not determined by the log-float test.25 Instead, it is

determined by a combination of two other factors:

(1)

whether the lake has inlet and outlet streams, and if so whether

those streams are navigable under the log-float test; and

(2)

whether the property along the lake is owned by one person or

by multiple owners.26

In deciding whether a lake is public when there are not both inlet and

outlet streams that pass the log-float test, the key question is whether there

is a theoretical reason besides recreation to navigate it. Is the lake on the

way to somewhere, or is there a place on the lake (for example, a commercial

destination) where someone might have a reason (besides recreation) reason

to go? If the answer is yes, the lake in most cases is navigable and therefore

public. To illustrate, if the lake is surrounded by private property and has no

inlet or outlet stream, the lake is private.27 If the lake has an inlet and an outlet

but neither of these is navigable under the log-float test, the lake is private. If

the lake has a navigable inlet or a navigable outlet, but not both, and the land

around the lake is owned by a single owner, the lake is private. If the lake has

a navigable inlet and a navigable outlet, the lake is public.

The question that has not been answered is what happens when the lake

has a navigable inlet or a navigable outlet, but not both, and the land around

the lake is owned by multiple owners. We believe the better argument is that

such a lake should be public, but the courts have not decided the issue one

way or another.28 Regardless whether the public trust doctrine applies, public

access may otherwise exist.

2

Category 2: Lakes and streams for which there are public

access sites

Access sites on inland lakes

An owner of property on an inland lake owns the lake bed from the

shoreline to the center of the lake.29 The ownership of land on the lake and

the corresponding ownership of the bed are what give the owner riparian

rights.30 A property owner on an inland lake who has riparian rights is called a

riparian owner or a littoral owner. 31 A riparian or littoral owner has the right to

use the water over the entire lake bed, not just the water over the part of the

bed that he or she owns.32

When there is a public access site or public access point on the lake,

members of the public gain some (but not all) of the rights that riparian owners

have.33 A person who can enter the lake using an access site or access point

may use the whole surface of the lake.34 Once on the lake, such a person may

bathe, swim, fish, and temporarily anchor a boat on the lake.35 More details

about what uses can and cannot be made by the public are found at page 10.

More details on what is and is not a public access site or access point are

found in the following section.

Access points on streams

Access points on streams are more of a gray area than those on lakes.

Just like with lakes, the discussion starts with the rights of riparian owners.

However, no case in Michigan has decided whether a riparian owner on a

stream that is not navigable has the right to use the entire surface of the stream

like a riparian owner on a lake does. For this reason, it is not clear whether

an access point on a stream that is not navigable gives the public any rights

to wade, float, or fish the stream other than from the access point itself. Of

course, if the stream is navigable, the public rights discussed in the section on

public trust would apply.

What makes an inland lake or stream public?

Type of

water

Characteristics

Public or

not?

stream

navigable with an access point

public

stream

navigable with no access point

not public

stream

not navigable with an access point

not public

stream

not navigable with no access point

not public

3

What makes an inland lake or stream public? cont...

inland

lake

navigable inlet and navigable outlet

public

(1)

navigable inlet or navigable outlet, but not

both

(2)

property around the lake owned by

more than one owner or lake contains a

commercial destination

status

uncertain;

arguably

public

inland

lake

(1)

no navigable inlet or navigable outlet

(2)

no access site or access point on lake

inland

lake

(1)

access site or access point on lake

(2)

property around the lake owned by more

than one owner

inland

lake

not public

most likely

public

How does the public access a lake or stream?

There are several legal ways to access a lake or stream from the land.

These include road ends, bridges, areas dedicated to public use in some plats,

private and public access sites, and undeveloped lands that are not posted

under the Recreational Trespass Act. We summarize the rules on each of

these types of access in this section.

Road ends

A road that ends at the edge of a navigable lake or stream provides public

access to the water.36 Such a road does not necessarily need to be improved

and maintained to provide public access. The road can be a two-track or

even a trail, as long as it originated through a written deed, easement, or plat

document that makes it public.37 A road to the water creating public access

can also originate through a long history of use, but in that case the road must

be improved and maintained by a local governmental unit.38

Members of the public who access the water from a road end can use

the surface of the water for boating (including anchoring temporarily), fishing,

and swimming.39 A local governmental unit can install a dock or ramp

at the road end to assist with getting boats on the water.40 Whether other

activities, such as sitting on the shore or picnicking, are allowed depends on

the circumstances; these are discussed in the section on plats, below. Local

4

units of government have the legal right to regulate docks and boats by local

ordinance.41 Local governments also sometimes pass ordinances regulating

the mooring of boats.42 However, it is doubtful that such ordinances could be

enforced against Tribal members exercising Treaty-reserved hunting or fishing

rights.43

Bridges

A bridge is essentially a road that enters and exits the water. Therefore, if

the law treats a bridge as a road end it should allow for public access. There is

not direct legal authority in Michigan on this question, but there is some indirect

authority to suggest that a bridge should be treated as an access point.44

Roads Along the Water

Roads along the water are different than roads that end at the water.

Roads along the water sometimes provide public access to the water, as well

as activities typical of a beach area such as picnicking and lounging, and

sometimes do not, depending on the scope of the road’s dedication.45 (See

the section on plats, below).

The owner of the land across the road from the water is usually found to

own the riparian rights to the water across from his or her lot.46 This is true

even if there is a strip of land between the right-of-way and the water.47 If the

fee in the road is owned by the governmental unit instead of just an easement,

there is an argument that the private land owner across the road from the

water does not have riparian rights.48

Plats

Historically, public access areas were sometimes created when the

owners of large tracts of land on the water platted that land into subdivisions.

Frequently the subdivisions had streets or alleys leading to the water, and in

some cases strips of land along the water. The plats sometimes have language

written into them saying these areas are “dedicated to the use of the public,” or

similar language. These dedications are often found to create public access

to the water.

Whether platted streets or strips of land along the water create public

access is determined by the intent of the person who platted the subdivision.49

As with any legal document, intent is determined from the text of the document

if the document is unambiguous.50 If the document is ambiguous, then the

circumstances existing at the time of the dedication – such as historical use –

can be relevant to intent.51 Circumstances existing after the dedication (such

as historical use after the subdivision already existed) are not relevant.52

Platted road ends dedicated simply “to the use of the public” have been

found to be ambiguous enough to allow historical evidence to be introduced

about intent.53 Without historical evidence, however, a platted road end will

usually be found to allow public access to the water, including temporary

mooring, swimming, and fishing; but not beach activities or permanent

mooring.54

5

Private Land with Permission

A private landowner with riparian rights can give permission to other people

to use his or her land to access a lake or stream.55 The access by the other

people must be a reasonable use of the land owner’s riparian rights.56 Too

many people, or too much disturbance, can be unreasonable; and if so it can

be legally prohibited.57

Public Land

Members of the public have the right to access navigable lakes and

streams from public land, including municipal parks. The Michigan Department

of Natural Resources has the authority to manage state-owned public land,

and to acquire and build public access sites.58 When the government owns

land on a lake or stream, it has the same riparian rights as any other land

owner (though it also has regulatory powers).59 While no court in Michigan has

ruled on the issue, courts in other states have found mismanaged or overused

public access sites to be an unreasonable use of the government’s rights as

a riparian landowner, and put limits on the use of those sites.60 In Michigan,

DNR public access sites are subject to local zoning regulation.61 Access sites

on tribal lands may or may not be subject to local zoning, depending on the

circumstances.62

Recreational Trespass

The right to fish in navigable waters does not carry with it the right to

trespass on the land of a riparian owner.63 However, the Recreational Trespass

Act allows a person to cross private property that is not posted or fenced in

order to access a lake or stream.64 It is not legal, however, to enter or remain on

farm property or a wooded area connected to farm property for this purpose.65

Even on fenced or posted property or farm property, a person who is wading

or floating a navigable stream may step onto and walk along the riverbanks to

avoid a hazard or obstruction.66 The burden of proof is on the person entering

the private property to show that it was necessary.67

6

What hunting and fishing activities are allowed on a

lake or stream?

As above, we divide our discussion of what activities are allowed on a lake

or stream depending on the legal basis providing access to a particular water

body: (1) the common law public trust doctrine; or (2) public access sites.

Category 1: Lakes and streams protected by the public trust

Recall from above that navigable inland lakes and streams are impressed

with the public trust, and as such are natural resources for which there is a

right of public access under state law. While the beds of these water bodies

are owned by the adjacent shoreline owners, those private owners’ use of the

water is subordinate to the traditional activities protected by the public trust.

In the case of both navigable lakes and navigable streams, the public has

a right to boat, swim, and fish on these water bodies.68 Along with the right to

fish under the public trust doctrine comes the right to wade69 and temporarily

anchor boats70 on privately-owned bottom lands. Michigan law has never

decided whether the public trust allows fishing on navigable inland lakes and

streams with nets that touch privately-owned bottom lands (for example, by

using removable impoundment nets). There is a good argument that the

public trust does include that right.71 Regardless whether the general public

may utilize such fishing nets, property rights reserved by the Tribes in the

1836 Treaty both predate and inform Michigan common law regarding fishing

activities under the 2007 Consent Decree.72

The public does not have the right to trap on private bottom lands of a

navigable lake or stream.73 However, an argument has recently emerged that

the public does have the right to hunt while floating over private bottomlands

on the surface of a navigable inland lake or stream.74

Category 2: Lakes and streams for which there are public

access sites

If there is a public access site on a lake or stream, then the members of

the public who use that site have the same rights to use those waters as does

a private owner of shoreline property.75 This includes the rights to boat, fish,

and swim. It also includes the right to hunt and trap.76 The right to trap only

extends to that area of the lake or stream that is adjacent to the public access

site or other public lands. It would not likely apply to public access gained by

road ends, except perhaps over the bottom lands within the extension of the

road end.77

The same is true of access gained through recreational trespass. It would

appear that public access via a trespass would not qualify as a “site.” Thus

the trespasser would only have the right to boat, fish, and swim (but not trap

and perhaps not hunt) on the water body that he or she had trespassed to gain

access to, and only if that lake or stream was also navigable. As yet, however,

this question has not been addressed directly by a court.78

7

Legal Annotations

1. In the Treaty of Washington signed March 28, 1836, 7 Stat. 491

(“1836 Treaty”), the Indian Tribes reserved usufructuary rights in inland portions

of the ceded territory that are confirmed in docket entry 1799 filed November 2,

2007 in the litigation captioned United States, et al. v. Michigan, et al., United

States District Court for the Western District of Michigan File No. 2:73-CV-26

(“Consent Decree”). Section VII, pages 13-15, delineates the categories of

lands and waters upon which Tribal members may exercise these “Treaty

rights”:

VII. LANDS AND WATERS ON WHICH TRIBAL MEMBERS

MAY EXERCISE INLAND ARTICLE 13 RIGHTS

Except as otherwise provided below, Tribal members may

exercise Inland Article 13 Rights, to the extent defined in

Paragraph 6.2, on the following lands and Waters within the

boundaries of the 1836 Ceded Territory, as depicted in Appendix

A, provided that the Tribes shall not exercise Inland Article 13

Rights in disputed areas lying generally between the Ford and

Escanaba Rivers in the Upper Peninsula or on the Thunder Bay

Peninsula in Alpena County unless and until the dispute as to

such areas is resolved by mutual agreement of the Parties or

Court order:

(a) Public lands and Waters that are open to the public under

federal or State law for the particular activity (e.g., Hunting,

Fishing, Trapping or Gathering), notwithstanding any species,

season, method or use limitations in federal or State law, provided

that in State, county and municipal parks, State wildlife refuges,

formally designated State wildlife research areas, and formally

designated State fisheries research areas, Tribal regulations

shall only permit Hunting and Fishing in such areas where and

at such times when the parks, refuges, and research areas

are open to the public for Hunting and Fishing, and shall be no

less restrictive than other State regulations limiting Hunting and

Fishing in such areas, and provided further that such limitations

shall not apply to a new or expanded park, wildlife refuge or

wildlife or fisheries research area if the creation or expansion

of the area was intended to limit treaty harvesting opportunities,

and provided further that the State shall consult with the Tribes

before creating a new or expanding an existing State park,

wildlife refuge, wildlife research area or fisheries research area

and shall attempt to avoid or minimize any adverse impact on

the exercise of the Tribes’ rights under this Decree as a result of

such designation or expansion;

8

(b) Private lands and Waters that are required to be open to

the public under federal or state law for the particular activity,

such as Hunting and Fishing (but not Gathering) on lands

enrolled in the State’s [Commercial Forest Act] CFA program,

notwithstanding any species, season, method or use limitations

in federal or state law, provided that, in the interests of social

harmony, the Tribes or their members shall obtain permission

from a CFA landowner in order to Hunt or Fish on his or her

CFA lands outside State seasons and methods if the CFA

landowner owns, in the aggregate, less than 1,000 acres in the

CFA program, and provided further that generally applicable

provisions of State law regarding the liability of CFA landowners

arising from the activities of hunters or fishers on CFA lands, and

generally applicable provisions of the CFA program allowing CFA

landowners to limit access to CFA lands subject to active timber

harvesting operations shall apply to Hunting and Fishing by

Tribal members on CFA lands, and provided further that nothing

herein shall be construed to authorize the use of snowmobiles,

all‑terrain vehicles, or other motor vehicles on CFA lands if such

use is otherwise prohibited under applicable law;

(c) Lands and Waters owned by a Tribe, a Tribal member or the

spouse of a Tribal member;

(d) Other private lands and Waters owned by non‑Tribal members,

with permission from the owner or authorized lessee, provided

that, in the case of private Waters, i.e., a non‑navigable Lake

with no public access or a non‑navigable stream segment on a

parcel or parcels of private property, the grant of permission by a

riparian owner does not violate the Michigan common law rights

of any other riparian owners, and provided further that, except

for special needs subsistence or ceremonial permits, which

shall be limited in number, the Tribes shall restrict Hunting and

Trapping on such lands and Waters in a manner consistent with

State seasons and methods, and provided further that, during

State seasons, permission shall be implied on lands and Waters

open to the public for Hunting and Fishing under the Michigan

Recreational Trespass Act, Mich. Comp. Laws, § 324.73101 et

seq., as now in force or hereafter amended, and provided further

that, when permission is not implied, the Tribes shall require

their members to possess written evidence of permission from

the landowner or authorized lessee, or the name and phone

number of the landowner or authorized lessee from whom they

obtained permission, while Hunting on such lands; and

(e) All other Waters that are open to the public for Fishing under

federal or State law notwithstanding any species, season,

9

method or use limitations in federal or State law, including such

Waters open to the public that are accessible through public

rights‑of‑way and public road crossings or otherwise accessible

to Tribal members by permission granted by the landowner

or authorized lessee, but only for purposes of Fishing in such

Waters, provided that Tribal members exercising Fishing rights

within the scope of subparagraph (a) of Paragraph 6.2 of this

Decree shall not place Impoundment Nets on privately owned

bottom lands if doing so is in violation of the Michigan common

law riparian rights of the private bottom land owner.

Nothing herein shall be construed as recognizing a right to Fish

on private Waters not open to the public except those owned by

a Tribe, a Tribal member or the spouse of a Tribal member or on

which permission is obtained from a riparian owner as provided

in subparagraph (d) of this Section VII (Lands and Waters on

Which Tribal Members May Exercise Article 13 Rights).

Information about the Consent Decree and the Tribes’ Treaty-reserved rights

is available at the following web sites: www.envlaw.com and www.michigan.

gov/dnr/0,1607,7-153-10364_44983---,00.html.

2. Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 452, 36 L. Ed. 1018,

13 S.Ct. 110 (1892); Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58 (2005);

Obrecht v. National Gypsum Co., 361 Mich. 399, 412-413, 105 N.W.2d 143,

149 (1961).

3. Id. Studies of the public trust doctrine include Sax, The Public Trust

Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich.

L. Rev. 471 (1970); Wilkinson, The Headwaters of the Public Trust Doctrine:

Some Thoughts on the Source and Scope of the Traditional Doctrine, 19

Envtl. L. Rev. 425 (1989); and Olson, Public Trust Doctrine: Procedural

and Substantive Limitations on the Governmental Reallocation of Natural

Resources in Michigan, 1975 Det. C.L. Rev. 161.

4. The earliest known formulation of the public trust doctrine was by

the Roman Emperor Justinian:

By the law of nature, these things are common to mankind: “the

air, running water, the sea, and consequently the shores of the

sea.”

Institutes of Justinian, 2.1.1, 529 A.D.

10

5. The Michigan Supreme Court described the history as follows:

It will be helpful to recall that Michigan was carved out of the

Northwest Territory; that the Territory was ceded to the United

States by Virginia; that the United States held this territory in

trust for future states to be created out of it; that the United

States held the waters of navigable rivers and lakes and the

soil under them in trust for the people, just as the British crown

had formerly held them in trust for the public uses of navigation

and fishery; that when Michigan entered the union of states,

she became vested with the same qualified title that the United

States had; that these waters and the soil under them passed

to the state in its sovereign capacity, impressed with a perpetual

trust to secure to the people their rights of navigation, fishing,

and fowling.

Collins v. Gerhardt, 237 Mich. 38, 45-46, 211 N.W. 115 (1926).

6. See the cases cited in note 2, supra.

7. Glass v. Goeckel, supra note 2.

8. Bott v. Natural Resources Commission, 415 Mich. 45, 327 N.W.2d

838 (1982).

9. Attorney General v. Taggart, 306 Mich. 432, 440, 11 N.W.2d 193

(1943).

10. Thies v. Howland, 424 Mich. 282, 380 N.W.2d 463 (1985) (lakes);

Nedtweg v. Wallace, 237 Mich. 14, 208 N.W. 51 (1926) (streams). See also,

Michigan Land Title Standard 24.2.

11. Nedtweg v. Wallace, id., 237 Mich. at 20:

The riparian proprietor has private rights to the thread of the

river but such rights are subordinate, at all times, to the public

rights of navigation and other rights inherent in the people.

12. Collins v. Gerhardt, supra note 5, 237 Mich. at 49.

13. McCardel v. Smolen, 71 Mich. App. 560, 566, 250 N.W.2d 496

(1977), aff’d, 404 Mich. 89, 95-96, 273 N.W.2d 3 (1978).

14. Bott v. Natural Resources Commission, supra note 8.

11

15. Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209 (1853). The

original test for navigability arguably was broader than the log-float test,

defining navigable streams as those which could be used by the public for

some public purpose:

The servitude of the public interest depends rather upon the

purpose for which the public requires the use of its streams,

than upon any particular mode of use and hence, in a region

where the principal business is lumbering, or the pursuit of any

particular branch of manufacturing or trade, the public claim to

a right of passage along its streams must depend upon their

capacity for the use to which they can be made subservient. In

one instance, perhaps, boats can only be used profitably, from

the nature of the product to be transported‑‑whilst, in another

they would be utterly useless. Upon many of our streams,

although of sufficient capacity for navigation by boats, they

are never seen‑‑whilst rafts of lumber of immense value, and

mill logs which are counted by thousands, are annually floated

along them to market. Accordingly, we find that a capacity to

float rafts and logs in those States where the manufacture of

lumber is prosecuted as a branch of trade, is recognized as

a criterion of the public right of passage and of use, upon the

principle already adverted to, that such right is to be ascertained

from the public necessity and occasion for such use.

2 Mich. at 525-26.

16. Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336 (1875).

17. Id.; see also People v. Summer School of Painting at Saugatuck,

Inc., 105 Mich. App. 550, 307 N.W.2d 87 (1981).

18. The Michigan Supreme Court in Bott said that Collins partially

overruled Thunder Bay River Booming Co. and made seasonally-navigable

streams public all year round:

It is apparent that at first the [navigational] servitude was

considered limited to the commercial flotation of logs and all

activity incident thereto and existed only during the periods

when such flotation could be carried on. Collins expanded the

permissible use of the public as an incident of the navigational

servitude to include fishing and declared the servitude to be

permanent....

Bott v. Natural Resources Commission, supra note 8, 415 Mich. at 70, n.22.

12

19. Moore v. Sanborne, supra note 15, 2 Mich. at 523-524; Thunder Bay

River Booming Co. v. Speechly, supra note 16, 31 Mich. at 4.

20. Id.

21. Bott v. Natural Resources Commission, supra notes 8 and 18.

22. Id.

23. Id. For arguments that the test for navigability should include

canoes and kayaks, see Shafer, Public Rights in Michigan’s Streams: Toward

a Modern Definition of Navigability, 45 Wayne L. Rev. 9 (1999), and Strom,

Peter W. and Strom, Paul L., “Stream Fishing Law in Michigan: Let’s Redefine

Navigability,” Michigan Bar Journal, May, 1990, p. 390.

24. Bott v. Natural Resources Commission, supra note 8, 415 Mich. at

72, n.27.

25. Id., 415 Mich. at 63, n.13.

26. Id., 415 Mich. at 64.

27. Id., 415 Mich. at 71.

Bott:

28. Our position on this issue is based on the following reasoning from

The precept that a servitude will not be extended beyond

the purpose for which it was granted explains the holding in

Winans that a small inland dead‑end lake is not open to the

public, although there is a navigable means of access, if all the

surrounding land is in unified ownership. In such a case, no

ship can dock, and logs cannot be floated to or from the land

without the permission of the owner. Where the owner objects,

no use can be made of a right of passage, and, hence, there is

no servitude for navigation although there is a navigable means

of access to the dead‑end lake.

415 Mich. at 64.

29. Bauman v. Barendregt, 251 Mich. 67, 231 N.W. 70 (1930); see also

Hall v. Wantz, 336 Mich. 112, 114, 57 N.W.2d 462 (1953).

30. Thompson v. Enz, 379 Mich. 667, 677-679, 154 N.W.2d 473

(1967).

13

31. McCardel v. Smolen, supra note 13, 404 Mich. at 93, n.3; Thies v.

Howland, supra note 10, 424 Mich. at 288, n.2.

32. Beach v. Hayner, 207 Mich. 93, 173 N.W. 487 (1919); Burt v. Munger,

314 Mich. 659, 23 N.W.2d 117 (1946).

33. The cases are not very clear on whether a lake with an access site

must also be navigable in order for the public to enjoy the rights given by

an access site over the whole lake as opposed to over only part of it. The

only comments on this issue from the Michigan Supreme Court that we are

aware of suggest that, if the lake has an access site, it is not also necessary to

demonstrate navigability in order for members of the public to exercise public

use rights:

Plaintiffs, in their brief in this Court, state that they have never

argued that the general public does not have a right of navigation

on the waters of Higgins Lake and that they “take no exception

whatsoever” to the Attorney General’s argument that the public

has a right to navigate and to exercise the incidents of navigation

on waters of this state which are capable of being navigated by

oar or motor-propelled craft, small craft, so long as members of

the public have lawful means of access to such waters.

The Court of Appeals stated: “Assuming lawful access, that

portion of the lower court’s order which prohibited the defendants

from ‘bathing, swimming, * * * (temporarily) anchoring boats or

similar activities’ must be vacated (deletion and addition by the

Court of Appeals).”

The public, as plaintiffs acknowledge, may lawfully enter the

waters of Higgins Lake from the points where the other streets

of the subdivision terminate at the water’s edge, and may use

the waters in front of plaintiffs’ lots, provided they have so or

otherwise lawfully gained access, for bathing, swimming and

temporarily anchoring boats.

McCardel v. Smolen, supra note 13, 404 Mich. at 96 (footnotes omitted).

34. Id.

35. Id. Bott v. Natural Resources Commission, supra note 8, tried

to suggest that fishing was the only public right that had been solidified by

the Michigan Supreme Court’s prior decisions, and that whether the public

had a right to “general boating and water recreation” was an open question.

415 Mich. at 66. However, Thies v. Howland, supra note 10, 424 Mich. at

288, stated that members of the public had all the rights listed in McCardel

14

v. Smolen. Recently the Michigan Supreme Court noted that “navigational

servitude” is rooted in the public trust doctrine. Glass v. Goeckel, supra note 2,

473 Mich. at 687, n.15. See Michigan Land Title Standard 24.3, Comment A.

36. Backus v. Detroit, 49 Mich. 110, 13 N.W. 380 (1882); McCardel v.

Smolen, supra note 13, 404 Mich. at 96; Thies v. Howland, supra note 10, 424

Mich. at 295; Jacobs v. Lyon Township (after remand), 199 Mich. App 667, 502

N.W.2d 382 (1993).

37. The common law definition of “highways” in Michigan is broad. In

Burdick v. Harbor Springs Lumber Co., 167 Mich. 673, 679, 133 N.W. 822

(1911), the Michigan Supreme Court defined highways this way:

The term ‘highway’ is the generic name for all kinds of public

ways, including county and township roads, streets and alleys,

turnpikes and plank roads, railroads and tramways, bridges

and ferries, canals and navigable rivers. In short, every public

thoroughfare is a highway.

In Petition of Carson, 362 Mich. 409, 107 N.W.2d 902 (1961), an abandonment

case, the court determined that an unimproved “sandy path which leads over

a hill to Lake Michigan” was a public highway. The Michigan Supreme Court

said:

A highway is a way open to all the people. This court has

adopted this definition of the term: “A highway is a public way

open and free to any one who has occasion to pass along it on

foot or with any kind of vehicle.” “A street is a highway in a city

or town, used by the public for the purpose of travel, either by

means of vehicles or on foot.”

The trial court did not err in considering that the use of the area

as a footpath constituted a contemplated use as a roadway.

362 Mich. at 412 (citation omitted).

38. MCL 221.20 is the highway-by-user statute. An illustrative case is

Boone v. Antrim County Board of Road Commissioners, 177 Mich. App. 688,

694, 442 N.W.2d 725 (1989).

39. Thies v. Howland, supra note 10, 424 Mich. at 288; Jacobs v. Lyon

Township, supra note 36.

id.

40. Thies v. Howland, id., 424 Mich. at 296; Jacobs v. Lyon Township,

15

41. Square Lake Hills Condominium Ass’n v. Bloomfield Township, 437

Mich. 310, 471 N.W.2d 321 (1991).

42. See Jacobs v. Lyon Township, supra note 36.

43. Local units of government have no power of their own; they derive

all of their authority from the State of Michigan. Clements v. McCabe, 210

Mich. 207, 215-16, 172 N.W. 722 (1920) (citation omitted):

The governmental authority known as “police power” is

concededly an inherent attribute of state sovereignty. It only

belongs to subordinate governmental divisions when and

as conferred by the state either through its Constitution or

constitutionally authorized legislation.

Michigan’s statehood in 1837 was subordinate to the property rights reserved

by the Tribes in the 1836 Treaty. Grand Traverse Band of Ottawa and Chippewa

Indians v. Director, Michigan Dep’t of Natural Resources, 971 F. Supp. 282,

288-91 (W.D. Mich. 1995), aff’d, 141 F.3d 635, 638-41 (6th Cir. 1998), cert.

denied, 454 U.S. 1124 (1998):

[U]nder the Supremacy Clause [Art. VI, cl. 2] of the United

States Constitution, treaties override any conflicting state or

local laws.

Id., 141 F.3d at 641 (citation omitted). Therefore, any power a local unit of

government may have to restrict activities such as boat mooring by ordinance

derives from State power that is subordinate to Treaty fishing and hunting

rights.

44. MCL 224.18 requires that before abandoning a road that terminates

at or crosses a lake or stream, the county road commission must offer to give

the road to the township. The use of the word “crosses” in the statute suggests

that a bridge would be included in the concept of a road.

According to one case, the purpose of the requirement is to allow the township

to preserve “access and ingress/egress to the stream.” Acer Paradise, Inc. v.

Kalkaska County Road Commission, 262 Mich. App. 193, 195, 684 N.W.2d 903

(2004). The case also says that “[n]othing in the statutory language indicates

that such access be limited to one side of a stream or lake; thus, access may

be attained from either side of the stream in this case.” Id., 262 Mich. at 203,

n.4.

16

45. McCardel v. Smolen, supra note 13, 404 Mich. at 96-97 (footnotes

omitted):

The public, as plaintiffs acknowledge, may lawfully enter the

waters of Higgins Lake from the points where the other streets

of the subdivision terminate at the water’s edge, and may use

the waters in front of plaintiffs’ lots, provided they have so or

otherwise lawfully gained access, for bathing, swimming and

temporarily anchoring boats.

There remain the questions whether the public i) may lounge and

picnic on the boulevard and ii) has a right, via the boulevard, of

access to and from the water for swimming and boating.

Lounging and picnicking on this wide boulevard, activities which

need not involve use of the water, are not riparian or littoral rights.

We agree with the Court of Appeals that “(t)hose activities are in no

way directly related to a true riparian use of the waters of Higgins

Lake; even assuming that the defendants choose to lounge and

picnic on the boulevard because of the lake’s proximity. In that

context ... the only ‘use’ of the water is the enjoyment of its scenic

presence.”

Just as clearly, access to and from the water is a riparian or littoral

right. Assuming, Arguendo, that the plaintiffs own the riparian

or littoral rights as an incident of front lot ownership, it does not

follow necessarily that the public does not have the right to enter

and leave the water from the boulevard. The question to which

the parties have devoted most of their attention in this litigation

(ownership of the riparian or littoral rights) is, again, not dispositive.

The question whether the public has the right to enter and leave

the water from the boulevard, like the question whether they may

lounge and picnic on the boulevard, depends, rather, on the scope

of the dedication.

On remand the trial court in McCardel found that the scope of the dedication

of the boulevard in that case did include beachfront uses, and the Court of

Appeals affirmed in an unpublished opinion. The most significant factor to the

trial court was the large width of the boulevard (over 100 feet), which suggested

uses beyond mere passage were intended.

For a contrary view:

The rule that a road commencing or terminating at another

road is intended to furnish a passage from and to the latter

applies to a road terminating at a navigable river or other body

of navigable water, and the terminus may be presumed to have

17

been intended for a public landing as an incident to the highway.

But the dedication of a highway along the shore of navigable

waters outside of towns and cities does not carry with it a right

to land vessels indiscriminately on such highway, and to use

it as a public landing place to discharge and receive freight

and passengers. The presumption that the road is intended to

furnish passage to the water does not apply in such case....

39 Am Jur 2nd, Highways, Streets, and Bridges, § 256, p. 644.

46. Croucher v. Wooster, 271 Mich. 337, 344, 260 N.W. 739 (1935);

Thies, supra note 10, 424 Mich. at 295.

47. Meridian Township v. Palmer, 279 Mich. 586, 589, 273 N.W. 277

(1937).

48. Thies v. Howland, supra note 10, 424 Mich. at 290-91 (quoting 78

Am. Jur. 2d, Waters, § 273, p. 716):

While there is some authority to the contrary, the majority of the

courts have followed the rule that land which is separated from

water by a highway or street the fee of which is in the public

is not riparian land; but where the fee in the land covered by

the highway or street is in the owner of the land, riparian rights

remain in such owner.

49. McCardel v. Smolen, supra note 13, 404 Mich. at 97; Thom v.

Rasmussen, 136 Mich. App. 608, 612, 358 N.W.2d 569 (1984); Jacobs v. Lyon

Township, 181 Mich. App. 386, 387-88, 448 N.W.2d 861 (1989), vacated, 434

Mich. 922, 455 N.W.2d 715 (1990); after remand, 199 Mich. App. 667, 502

N.W.2d 382 (1993).

50. Little v. Kin, 468 Mich. 699, 700, 664 N.W.2d 749 (2003). (“Little II”)

51. Dobie v. Morrison, 227 Mich. App. 536, 540, 575 N.W.2d 817 (1998);

Bang v. Forman, 244 Mich. 571, 576, 222 N.W. 96 (1928).

52. Higgins Lake Property Owners Ass’n v. Gerrish Township, 255 Mich.

App. 83, 103; 662 N.W.2d 387 (2002).

53. Dobie v. Morrison, supra note 51.

54. Higgins Lake Property Owners Ass’n v. Gerrish Township, supra

note 52.

18

55. Thompson v. Enz, 379 Mich. 667, 685-87, 154 N.W.2d 473 (1967);

Little v. Kin, 249 Mich. App. 502, 513, 644 N.W.2d 375 (2002).

56. Thompson v. Enz, id.

57. Id.

58. MCL 324.503(1) states:

The department shall protect and conserve the natural resources

of this state [and] provide and develop facilities for outdoor

recreation.... The department has the power and jurisdiction over

the management, control, and disposition of all land under the

public domain, except for those lands under the public domain

that are managed by other state agencies to carry out their

assigned duties and responsibilities. On behalf of the people of

the state, the department may accept gifts and grants of land

and other property and may buy, sell, exchange, or condemn

land and other property, for any of the purposes contemplated

by this part.

The DNR also has the following powers and duties:

(a) To acquire, construct, and maintain harbors, channels, and

facilities for vessels in the navigable waters lying within the

boundaries of the state of Michigan.

(b) To acquire, by purchase, lease, gift, or condemnation the

lands, rights of way, and easements necessary for harbors and

channels....

***

(h) To charge fees for both daily and seasonal use of

state‑operated public access sites....

MCL 324.78105.

59. Stupak-Thrall v. Glickman, 226 F.3d 467 (6th Cir. 2000) (dicta).

60. See, e.g., Botton v. State, 69 Wash. 2d 751, 420 P. 2d 352 (1966).

61. Burt Township v. Dep’t of Natural Resources, 227 Mich. App. 252,

576 N.W.2d 170 (1997); aff’d, 459 Mich. 659, 593 N.W.2d 534 (1999).

62. See 25 CFR §1.4.

19

63. Michigan United Conservation Clubs v. Board of Trustees of Michigan

State University, 172 Mich. App. 189, 431 N.W.2d 217 (1988); Delaney v.

Pond, 350 Mich. 685, 86 N.W.2d 816 (1957); Douglas v. Bergland, 216 Mich.

380, 185 N.W. 819 (1921).

64. MCL 324.73102(1).

65. MCL 324.73102(2).

66. MCL 324.73102(3).

67. People v. Gatski, 260 Mich. App. 360, 677 N.W.2d 357 (2004).

68. Thies v. Howland, supra note 10, 424 Mich. at 288.

69. Glass v. Goeckel, supra note 2, 473 Mich. at 696 (citing Atttorney

General v. Taggart, supra note 9, 306 Mich. at 435 & 443).

70. Thies v. Howland, supra note 10, 424 Mich. at 288.

71. The Consent Decree says “Tribal members exercising Fishing rights

within the scope of subparagraph (a) of Paragraph 6.2 of this Decree shall not

place Impoundment Nets on privately owned bottom lands if doing so is in

violation of the Michigan common law riparian rights of the private bottom land

owner.” Consent Decree, supra note 1, Section VII(e).

The public’s right to fish under the public trust is generally described as an

incident of the public’s right to the use of the surface, and not the bottom lands,

of navigable lakes and streams. See Bott v. Natural Resources Commission,

supra note 8, and Higgins Lake Property Owners Ass’n v. Gerrish Township,

supra note 52, 255 Mich. App. at 103-104. It is lawful, however, to moor a

water craft temporarily to the bottom lands of a navigable inland lake. Thies v.

Howland, supra note 10, 424 Mich. at 288.

Although the issue has never been addressed by the Michigan courts, by

analogy it would be lawful to use nets to catch fish if they were only temporarily

attached to the bottom lands of a navigable inland water body. The question

turns on whether temporary anchoring of nets is an activity “incident to” or

“inherent in” the exercise of a traditional public trust activity. Hall v. Wantz, 336

Mich. 112, 116-17, 57 N.W.2d 462 (1953) (“incident to”); Thies v. Howland,

supra note 10, 424 Mich. at 288 (“incident to”); Glass v. Goeckel, supra note

2, 473 Mich. at 698:

We can protect traditional public rights under our public trust

doctrine only by simultaneously safeguarding activities inherent

in the exercise of those rights.

20

Finally, in Lincoln v. Davis, 53 Mich. 375, 19 N.W. 103 (1884), the Michigan

Supreme Court held that the public trust provides for the use of removable trap

nets to catch fish in the Great Lakes. The Lincoln case is interesting because

the court wrongly assumed that the bottom lands were owned by the adjacent

landowners, in the way the bottom lands of inland lakes are owned by the

adjacent landowners. So it is possible that the reasoning of Lincoln would

apply to the case of an inland lake. It is unlikely, however, that it would be

lawful to permanently affix such nets to the bottom lands of a navigable lake or

stream in order to catch fish. Cf. Hall v. Wantz, supra, 336 Mich. at 119.

72. Federal case law recognizes the Tribes’ rights under the 1836 Treaty

both to access traditional fishing grounds and also to access opportunities

secured by a consent decree. “Treaty-reserved rights to access traditional

fishing areas and catch fish are property rights protected by the United States

Constitution.” Grand Traverse Band of Ottawa and Chippewa Indians v.

Director, Michigan Dep’t of Natural Resources, 971 F. Supp. 282, 288-91

(W.D. Mich. 1995), aff’d, 141 F.3d 635, 638-41 (6th Cir. 1998), cert. denied,

454 U.S. 1124 (1998). Michigan’s statehood in 1837 was subordinate to

these property rights reserved by the Tribes in the 1836 Treaty, which include

easements impacting privately-owned bottom lands. Michigan could not

achieve statehood in 1837 until the United States obtained legal title from the

Indian Tribes to more than 13 million acres ceded in the 1836 Treaty. Id., 141

F.3d at 637. Unlike an ordinary land transaction in which the seller conveys

all of the rights in the property being sold, the Indians reserved a right to fish

when they conveyed title to the land ceded in the 1836 Treaty. United States v.

Michigan, 471 F. Supp. 192, 212-13 and 253-59 (W.D. Mich. 1979), aff’d, 653

F.2d 277 (6th Cir. 1981), cert. denied, 454 U.S. 1124 (1981). “Title to almost all

the land in Michigan is derived from the United States, which once owned the

land.” Cameron, Michigan Real Property Law, n.8 at page 456. Subsequent

conveyances by the State of title to bottom lands of inland navigable waters

within the cession area were subject to the Tribes’ preexisting property rights

(including easements, or profits a prendre) reserved in the 1836 Treaty.

Tribal rights reserved in the 1836 Treaty “included an easement of access over

the land surrounding these traditional fishing grounds, even were the land to

have been privately owned.” Grand Traverse Band of Ottawa and Chippewa

Indians v. Director, Michigan Dep’t of Natural Resources, supra, 141 F.3d at 639

(citations omitted). The technical legal terminology for such an easement is profit

a prendre. Id., 141 F.3d at 639, n.9. The Tribes retain profits a prendre to take

fish from the waters within the territory ceded in the 1836 Treaty. Id.; see also

United States v. Michigan, supra, 471 F. Supp. at 276: “The Indians reserved

such an interest in land [profit a prendre or easement] by the Treaty of 1836.”

Michigan law recognizes that profits a prendre include “the right to kill and take

as his own game on another’s land, [and] fish in waters thereon,...” St. Helen

Shooting Club v. Mogle, 234 Mich. 60, 68, 207 N.W. 915 (1926). Therefore

riparian property rights recognized by Michigan common law likewise may be

21

imbued with tribal easements of access including the temporary anchoring of

fishing nets on privately-owned bottom lands, consistent with the proposition

that tribal “fishers have an easement of access ... reasonably necessary for

meaningful ... fishing from traditional sites.” Grand Traverse Band of Ottawa

and Chippewa Indians v. Director, Michigan Dep’t of Natural Resources, supra,

971 F. Supp. at 290 (citations omitted); see 141 F.3d at 639.

73. It is unlawful to attach traps, temporary or permanent, to the bottom

lands of a navigable inland lake to catch fur-bearing animals. Johnson v.

Bughorn, 212 Mich. 19, 29, 179 N.W. 225 (1920). The right to such trapping is

a property right held by the adjacent riparian owner, who also owns the bottom

lands of the lake or stream. Id. See also Sewers v Hacklander, 219 Mich. 143,

151, 188 N.W. 547 (1922).

74. Glass v. Goeckel, supra note 2, lists hunting as one of the traditionally

recognized public trust uses:

Our courts have traditionally articulated rights protected by

the public trust doctrine as fishing, hunting, and navigation for

commerce or pleasure.

473 Mich. at 695 (citations omitted). While Glass does not draw any distinctions

between Great Lakes and inland water bodies, there certainly is an argument

that Glass’ dicta on hunting was only meant to apply to hunting over the

publicly-owned bottom lands of the Great Lakes. This argument would be

based on prior cases that did draw distinctions between hunting over privately

owned bottom lands and those owned by the public. See, e.g., Sterling v.

Jackson, 69 Mich. 488, 37 N.W. 845 (1888):

Since every person has the right of exclusive dominion as

to the lawful use of the soil owned by him, no man can hunt

or sport upon another’s land but by consent of the owner. It

will be conceded that the owner of lands in this state has the

exclusive right of hunting and sporting upon his own soil * * *

The defendant claims that he had the right to shoot the wild

fowl from his boat because, as the waters were navigable

where he was, he had the right to be there; that, there being no

property in wild fowl until captured, if he committed no trespass

in being where he was, no action will lie against him for being

there and shooting the wild duck. There is a plausibility in the

position which, considered in the abstract, is quite forcible, and

if applied to waters where there is no private ownership of the

soil thereunder would be unanswerable. But, so far as the

plaintiff is concerned, defendant had no right to be where he

was, except for the purpose of pursuing the implied license held

out to the public of navigating the waters over his land. So long

22

as that license continued he could navigate the waters with his

vessel and do all things incident to navigation. He could seek

the shelter of the bay in a storm and cast his anchor therein; but

he had no right to construct a “hide,” nor to anchor his decoys

for the purpose of attracting ducks within reach of his shotgun.

Such acts are not incident to navigation, and in doing them

defendant was not exercising the implied license to navigate

the waters of this bay, but they were an abuse of such license.

69 Mich. at 497. That said, the cases that decline to recognize a public right to

hunt from water overlying private bottom lands all precede Collins v. Gerhardt,

supra note 5,the case that recognized a public right to fish on inland water

bodies in 1926. See Sterling v. Jackson, 69 Mich. 488, 37 N.W. 845 (1888);

Hall v. Alford, 114 Mich. 165, 72 N.W. 137 (1897); Ainsworth v. Hunting and

Fishing Club, 153 Mich. 185, 116 N.W. 992 (1908) and 159 Mich. 61, 123 N.W.

802 (1909); and Sewers v. Hacklander, 219 Mich. 143, 151, 188 N.W. 547

(1922).

In Collins, the Michigan Supreme Court stated that it was deciding for the first

time that a public fishing right existed in water overlying private bottom lands.

The Court quoted with approval an Arkansas case that said the rights to hunt

and fish inhere in the public’s rights:

The common right of hunting and fishing in such navigable

waters is not reserved to the public as a right attached and

incident to the right of navigation, but it is one that inheres in

the public in our state because the state, in trust for the public,

is the owner of the soil in navigable waters to high‑water mark,

and the common right of hunting and fishing is incident to such

ownership, as well as the other common right of navigation.

237 Mich. at 50-51 (quoting State v. Parker, 132 Ark. 316 200 S.W. 1014

(1917)). Therefore, the combination of Collins and the Glass dicta could be

used to argue for a public right to hunt while floating over private bottomlands

on a navigable inland lake or stream. This right would have an as-yetundetermined relationship to Tribal members’ Treaty rights.

75. Bott v. Natural Resources Commission, supra note 8, 415 Mich. at

57; McCardel v. Smolen, supra note 13, 404 Mich. at 96.

76. While there are no court decisions that have held this point directly, it

is a logical conclusion that the public has such rights based upon the case law

holding that the rights to hunt and trap on lakes and streams are held by the

adjacent shoreline property owners. See St. Helen Shooting Club v. Mogle,

supra note 72, 234 Mich. at 64-65 (hunting); and Johnson v. Bughorn, supra

note 70, 212 Mich. at 29 (trapping). Presumably, if the public owns shoreline

23

property on a lake or stream then the public likewise has the right to hunt and

trap over the adjacent bottom lands on that water body.

77. Jacobs v. Lyon Township, 188 Mich. App. 386, 448 N.W.2d 861

(1989) (before remand), says that road ends are held by the government in

“qualified fee,” for road purposes only, and not in fee simple. Because they

are not held in fee simple, the court reasoned, road ends only provide access

to the water (and uses incidental to access), not the full array of property rights

that would be associated with fee ownership of the land.

78. People v. Gatski, 260 Mich. App. 360, 677 N.W.2d 357 (2004).

24