PAUL PENTZ V RICHARD SCHLIMGEN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PAUL PENTZ,
UNPUBLISHED
December 19, 2006
Plaintiff-Appellee,
V
No. 258130
St. Joseph Circuit Court
LC No. 03-000744-CZ
RICHARD SCHLIMGEN and
MARILYN SCHLIMGEN,
Defendants-Appellants.
Before: O’Connell, P.J., and Murphy and Wilder, JJ.
PER CURIAM.
Defendants appeal as of right from the trial court’s denial of their motion for summary
disposition pursuant to MCR 2.116(C)(10), and its grant of summary disposition to plaintiff
pursuant to MCR 2.116(I)(2). We affirm.
This case involves a property dispute over the scope of defendants’ right to use the “lake
access area” in the plat where they reside. The Sunset Shores plat was recorded on June 6, 1962,
and included 30 lots. Lots 12, and 14-30 fronted Pleasant Lake (“frontlots”), and the plat
language provided that those lots ran to the water’s edge. Pleasant Shore Lane, a private road
dedicated to “the lot owners within the plat,” runs perpendicular to Pleasant Lake, and provides a
means of ingress and egress to lots 14-17 on the north side, and lots 18-22 on the south side.
Plat dedications adopted on August 22, 1964 dedicated a lake access area for use by the
owners of lots 1 to 11, the “backlots,” including defendants, whose lots did not abut the lake.
Paragraph 10 of the dedication provided as follows:
10. Lots 1 to 11 inclusive shall have access to [the] lake over Pleasant Shore
Lane, a private road. Use of said lake access shall be restricted to said lot owners
and their guests when accompanied by lot owners. Maintenance of this area shall
be controlled by property owners committee as denoted in Paragraph #3 above
and cost charged to owners of Lots 1 to 11. Parties using lake access area shall
not leave autos unattended or parked in manner that would prohibit access to [the]
lake for loading or unloading.
The lake access area is accessed by Pleasant Shore Lane and is the area between the terminus of
that road and the lake.
-1-
Plaintiff, the owner of lot 17 on the north side of Pleasant Shore Lane, and lots 18 and 19
on the road’s south side, filed a complaint for injunctive relief after defendants erected a dock
and moored their boat at the lake access area. Plaintiff did not dispute defendants’ right to use
the lake access area, but challenged those specific uses. Defendants asserted that they had a fee
interest, and therefore riparian rights in the lake access area, and were thereby permitted to place
a dock and moor a boat there. Defendants moved for summary disposition, and argued that there
was no material factual issue to decide based on their proffered evidence that the plat’s
proprietors intended that the permitted uses of the lake access area included dock placement and
boat mooring. Plaintiff argued that defendants’ interest was an unambiguous easement that must
be enforced as written; therefore, the extrinsic evidence offered by defendants could not be
considered in determining the scope of the plat dedication. Plaintiff further argued that the uses
at issue were normally reserved for those with riparian rights, and could not be implied from
simple access or travel easements.
The trial court ruled that the plat dedication language did not grant riparian rights to
defendants. It ruled that although the defendants had the right to use the surface water in a
reasonable manner and for activities such as boating, fishing, and swimming, they did not have
the right to erect a dock and permanently moor their boat during the summer season.
A determination of the extent of a party’s rights under a plat dedication is a question of
fact that is reviewed for clear error. Dyball v Lennox, 260 Mich App 698, 703; 680 NW2d 522
(2004). The intent of the grantor controls the scope of the grantor’s dedication. Dyball, supra at
704. Where the language of a legal instrument is plain and unambiguous, it is to be enforced as
written and no further inquiry is permitted. Little v Kin, 468 Mich 699, 700; 664 NW2d 749
(2003); Dyball, supra at 704. We review de novo a trial court’s decision on a motion for
summary disposition. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A
motion for summary disposition brought under MCR 2.116(C)(10) may be granted where there is
no genuine issue of material fact, except as to the amount of damages. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition under MCR
2.116(I)(2) is appropriate if the opposing party, rather than the moving party, is entitled to
judgment as a matter of law. Local Area Watch v Grand Rapids, 262 Mich App 136, 142; 683
NW2d 745 (2004).
Defendants raise several issues in support of their argument that they have a right to place
a dock and moor a boat as the holders of riparian rights, or alternatively, under the plat
dedication language.
Defendants first argue that the plat dedication language is ambiguous, in failing to clarify
whether Pleasant Shore Lane runs all the way to the lake and whether it is part of the “lake
access” area, and therefore, the trial court should have considered extrinsic evidence of the
proprietors’ intent in determining the scope of defendants’ lake access rights. We disagree.
The plat dedication language provides that the backlot owners and their guests can access
Pleasant Lake “over Pleasant Shore Lane.” The term “over” indicates that Pleasant Shore Lane
provides a means for travel to the lake access area, and is not part of the lake access area.
Additionally, that the plat dedication contains a separate provision for the maintenance of
Pleasant Shore Lane further supports a conclusion that the maintenance provision for the lake
access area excludes Pleasant Shore Lane.
-2-
Defendants next argue that the plat dedication language granting them lake access over
Pleasant Shore Lane is a grant of fee interest and full riparian rights. Again, we disagree.
Generally, land that abuts a river is defined as riparian, while land that includes or abuts a lake is
defined as littoral. Thies v Howland, 424 Mich 282, 288 n 2; 380 NW2d 463 (1985), citing
McCardel v Smolen, 404 Mich 89, 93 n 3; 273 NW2d 3 (1978). However, the term “riparian” is
often used to describe both types of land. Id.
Defendants are not riparian owners because they do not own land adjacent to Pleasant
Lake. The land dedication presently at issue occurred before the enactment of the Land Division
Act, MCL 560.101 et seq. Our Supreme Court has held that “dedications of land for private use
in plats before 1967 PA 288 took effect convey at least an irrevocable easement in the dedicated
land.” Little v Hirschman, 469 Mich 553, 564; 677 NW2d 319 (2004). This date distinction is
important because the Land Division Act [1967 PA 288], provides that a private dedication in a
plat transfers a fee simple to the donees. Martin v Beldean, 469 Mich 541, 548; 677 NW2d 312
(2004).
Defendants rely on several cases, including Thies, to support their position. In Thies,
supra at 510, a notation on the plat map designated driveways, walks, and alleys “to the joint use
of all the owners in the plat,” to provide lake access to the backlot owners. The frontlot, or
riparian, owners filed suit to enjoin the defendant backlot owners from building and maintaining
a dock at the end of one of the easements. Id. at 287. The trial court ruled that the defendants
could only use the lake for boating, fishing, and sunbathing, and could anchor their boats, and
granted the injunction. Id. This Court affirmed, but modified the injunction to prohibit the
anchoring of boats. Id. In determining whether the backlot owners were riparian owners, our
Supreme Court noted that the “ownership of the walk and alleys and the scope of the dedication
of these lands are interrelated, but distinct inquiries.” Id. at 289.
The Court stated that the plaintiffs were presumed to own a fee interest in the walkway
located between the plaintiffs’ lots and the lake, unless the plattors intended otherwise. Id. at
293. The Court ruled that the trial court’s finding that the walk was an easement was not clearly
erroneous, because “[t]he phrase ‘joint use’ standing alone does not ordinarily denote the passing
of a fee interest in land,” and the record did not support a different conclusion. Id. at 293-294.
The Court also ruled that the plat dedication did not evidence an intent to permit the owners to
construct docks along the walkway, because the phrase “joint use” did not “evidence an intent to
grant a right to construct docks, a right which normally is reserved to riparian owners.” Id. at
294.
The Thies Court noted the possibility of the defendants’ right to construct a dock at the
end of the alleys that terminated at the lake, and stated, “[c]ases involving a way which
terminates at the edge of a navigable body of water are treated differently from those involving a
way which runs parallel to the shore.” Id. at 295. However, because the defendants in Thies did
not build the dock at the end of an alley, the Court went no further in its analysis.
We find Thies instructive to the present case. The plattor’s intent controls the scope of
the dedication in terms of its ownership and use, Thies, supra at 289, 293, notwithstanding
defendants’ assertions why they have a fee interest and riparian rights in the lake access area
(including its definition as an “area,” that defendants are financially responsible for its
maintenance, and that their property assessment includes their rights to the lake access area).
-3-
This remains true regardless of whether the dedication at issue runs parallel to the waterway and
lies between the water and the frontlot owners’ lots, or whether it lies where a roadway or
walkway terminates at the water, or lies between such a terminus and the water’s edge. Id. at
289, 293-294; Little v Hirschman, supra, 469 Mich at 554-556, 563-564. Regarding ownership,
it is clear from Thies that the language used in the dedication affected was an important factor in
the determination that the defendants had an easement rather than a fee interest in land. Id. at
293-294.
Here, there was a dedication rather than an outright grant, and that fact, together with the
language used in the dedication, also supports the conclusion that defendants do not have a fee
interest or riparian rights in the lake access area. The dedication language in paragraph 10
provides for “access” to the lake, and for use of the “lake access area,” and does not indicate a
grant of ownership. Further, our Supreme Court has stated that the “[r]eservation of a right-ofway for access does not give rise to riparian rights but only right-of-way.” Thompson v Enz, 379
Mich 667, 685; 154 NW2d 473 (1967). We find that the plat dedication language provides
defendants and the other backlot owners with rights analogous to an irrevocable easement or
right-of-way, and does not grant a fee interest or riparian rights. The trial court’s ruling that the
owners’ “joint use” of the lake access area did not create a fee interest in the land was not clearly
erroneous.
We now address the scope of defendants’ rights under the plat dedication. Defendants
argue that the instant case is analogous to a public road ending at a lake rather than an easement
situation. Defendants further argue that they are entitled to dockage rights because public
dockage rights have been found in several cases determining the public’s right of access,
including Backus v Detroit, 49 Mich 110; 13 NW 380 (1882), Higgins Lake Prop Owners Ass’n
v Gerrish Twp, 255 Mich App 83; 662 NW2d 387 (2003), and Jacobs v Lyon Twp (After
Remand), 199 Mich App 667; 502 NW2d 382 (1993).
Michigan Courts have held that publicly dedicated streets that end at the edge of
navigable waters generally provide public access to the water. Jacobs, supra at 671, citing
Thies, supra at 295; McCardel, supra at 96; Backus, supra. For example, the right of a
municipality to build a wharf or dock at the end of a street that terminates at the edge of
navigable waters is based on the presumption that the plattor intended to give access to the water
and permit the building of structures to aid in that access. Thies, supra at 295-296. “Nonriparian
owners and members of the public who gain access to a navigable waterbody have a right to use
the surface of the water in a reasonable manner for such activities as boating, fishing and
swimming. An incident of the public’s right of navigation is the right to anchor boats
temporarily.” Thies, supra at 288, citing Delaney v Pond, 350 Mich 685, 688; 86 NW2d 816
(1957); Hall v Wantz, 336 Mich 112, 116-117; 57 NW2d 462 (1953). However, the extent to
which the right of public access includes the right to erect a dock or boat hoists depends on the
scope of the dedication. McCardel, supra at 97.
Riparian rights include the right to erect and maintain a dock, and the right to anchor
boats permanently. Thies, supra at 288. Because defendants do not have riparian rights in the
lake access area, the right to erect a dock and permanently moor a dock is not automatically
vested in defendants. However, as noted in Thies, supra at 289,
-4-
Even if we conclude that defendants merely have an easement interest in the walk
and alleys, they may still prevail. Plaintiffs cannot prevent defendants from
erecting a dock or permanently anchoring their boats if these activities are within
the scope of the plat’s dedication, McCardel v Smolen, 404 Mich 89, 97, 103; 273
NW2d 3 (1978), and do not unreasonably interfere with plaintiff’s use and
enjoyment of their property. [Footnote omitted.]
The scope of defendants’ rights in the lake access area depends on the plat dedication
language. Id. Whether the construction and maintenance of a dock is within the scope of this
type of easement was addressed by this Court in Dyball, supra. In that case, the Court held that
the plain and unambiguous language of an easement grant by a riparian owner to a nonriparian
owner for ingress and egress to the water’s edge of Lake Fenton did not grant riparian rights. Id.
at 708. Therefore, it did not permit the maintenance of a dock or permanent mooring of a boat.
Id. at 708-709. The Court reasoned that “nothing in the plain and unambiguous language of the
easement permits or grants defendant the right to erect and maintain a dock or permanently moor
a boat at the end of the easement.” Id. at 709. It further stated that an easement created for
access or ingress and egress to the lake cannot be expanded, and noted that access was defined as
including “‘a right to use the surface of the water in a reasonable manner for such activities as
boating, fishing and swimming,’ and a right to temporarily anchor boats.” Id. at 709, 709 n 4,
citing Thies, supra at 288.
Here, the dedication language grants defendants and the other backlot owners the right to
access the lake and use the lake access area for loading or unloading. It does not specifically
grant defendants the right to erect a dock and moor their boats. The language, which provides
“access to [the] lake,” “use of lake access,” and specifies a condition for “[p]arties using lake
access area,” does not evidence an intent to allow dock construction or the mooring of boats;
rather, it clearly provides a place for the backlot owners to access Pleasant Lake within the plat.
The prohibition against leaving “autos unattended or parked in a manner that would prohibit
access to [the] lake for loading or unloading,” also evidences an intent that the lake access area
was dedicated to allow the back lot owners ingress and egress to Pleasant Lake. We find that the
trial court’s ruling that the dedication provided defendants with access rights and surface water
rights, but not the right to erect a dock and permanently moor boats, is not clearly erroneous.
Affirmed.
/s/ Peter D. O’Connell
/s/ William B. Murphy
/s/ Kurtis T. Wilder
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
