The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5246 December 2, 1977 SUBDIVISION CONTROL ACT: Plat of subaqueous land STATE TREASURER: Duty to accept or reject proposed plats It is the duty of the State Treasurer to reject a proposed plat which purports to subdivide or include within its boundaries submerged land on any inland lake or stream regardless of whether the submerged land is a natural lake or stream or is artificially created. Allison Green State Treasurer Department of Treasury Lansing, Michigan 48913 You have requested my opinion as to '1. Whether it is the duty of the State Treasurer to reject any proposed plat which attempts to subdivide or include within its boundaries any submerged or subaqueous lands on any inland lake or stream of this state, inasmuch as such a proposed plat does not conform with the provisions of the Subdivision Control Act, 1967 PA 288; MCLA 560.101 et seq; MSA 26.430(101) et seq, hereafter referred to as the 'Subdivision Control Act'. '2. Whether it is the duty of the State Treasurer to reject any proposed plat which attempts to subdivide or include within its boundaries any submerged or subaqueous lands on any artificial inland lake or on any impoundment of a natural inland lake or stream of this state, inasmuch as such a proposed plat does not conform with the provisions of the Subdivision Control Act, 1967 PA 288, supra.' Before considering the Subdivision Control Act, it will be helpful to review the case law on the subject of ownership of lands abutting inland lakes and streams. In Lorman v Benson, 8 Mich 18 (1860), the Michigan Supreme Court held that the owner of a tract riparian to a navigable stream held title to the thread of such stream. The Court reasoned: 'In applying the principles of the common law to the tideless stream in question, we do not perceive what public interests would be subserved by placing it on the footing of tide-waters, when the rules applying to public fresh water streams provide amply for every common easement. The right of navigation, to which all others are subservient, is in no way injured or abridged by this holding. And the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. We can perceive no advantage to the state in setting up a barren and useless title. We think that in this respect the common law is already adapted to our circumstances, and needs no changing. 'It is urged that this ruling will interfere with the improvement of rivers, and disturb the title of islands. But these objections are not well taken. The public authorities can regulate water highways as well as land highways, although the soil of neither belongs to the state. And if the government sees fit (as is the case with all islands in this river, which have not only been kept separate as property from the mainland, but most have been named and distributed between Great Britian and the United States by treaty) to regard each island as a separate property, this infringes no common law rule. Islands have always been susceptible of separate ownership, and when so separated, the filum aquae is to be drawn between them and the mainland. The facts before us create none of the embarrassments which have been suggested to us, and we have no difficulty in holding that the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. . . .' The Michigan Supreme Court has since adhered to the Lorman case. See Ryan v Brown, 18 Mich 196 (1889); Fletcher v Thunder Bay River Boom Co, 51 Mich 277; 16 NW 645 (1883); Butler v Grand Rapids RR Co, 85 Mich 246; 48 NW 569 (1891); Goff v Cougle, 118 Mich 307; 76 NW 489 (1898); People v Grand Rapids-Muskegon Power Co, 164 Mich 121; 129 NW 211 (1910); Ottawa Shores Ass'n v Lechla, 344 Mich 366; 73 NW2d 840 (1955). The Michigan Supreme Court has similarly ruled that the owner of lands riparian or littoral to an inland navigable lake takes title to the center line or midpoint of such lake. In Grand Rapids Ice & Coal Co, v The South Grand Rapids Coal Co, 122 Mich 227, 236-237; 60 NW 681 (1894), the Court held: 'The shore proprietor takes by virtue of shore ownership. His interest in the bed of the stream he acquires as appurtenant to the grant, and the extent of that interest depends upon his frontage, and the form, length, and breadth of the body of water upon which he abuts. That a lake may be of such form as to render the designation in it of the boundaries of the several riparian owners is somewhat difficult is not an objection to the application of the rule.' Ownership of portions of a stream or lake and the emjoyment of riparian or littoral rights thereto are appurtenant to the ownership of the riparian or littoral tract. Therefore, as the Supreme Court noted in Thompson v Enz, 379 Mich 667, 678, 679; 154 NW2d 473 (1967), (quoting from Hilt v Weber, 252 Mich 198, 218; 233 NW 159 (1930), with approval): 'It is a settled law both in this State and elsewhere, so settled that no contrary authority has been cited, that the interposition of a fee title between upland and water destroys riparian rights, or rather transfers them to the interposing owner. The basis of the riparian doctrine, and an indispensable requisite to it, is actual contact of the land with the water [citations omitted].' [Emphasis added] The Court in Thompson then stated: 'We hold that riparian rights are not alienable, severable, divisible, or assignable apart from the land which includes therein, or is bounded by a natural water course.' 379 Mich at p 686 In Hartz v Detroit, P & N RR Co, 153 Mich 337; 116 NW 1084 (1908), the Supreme Court indicated that where the boundaries of a stream have been changed by artificial means so as to create a pond, and the description in a conveyance describes land as running along the bank of a pond, such description conveys the right to the waterfront and to the use of the stream in its natural condition should the artificial pond be discontinued. With reference to artificial bodies of water, the Court in Thompson, supra, at p 679, observed: 'Artificial watercourses are waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes, and the like. 'Land abutting on an artificial watercourse has no riparian rights.' Turning now to the provisions of the Subdivision Control Act, supra, section 171 provides that the State Treasurer shall review a final plat and: '. . . when it conforms to all of the provisions of this act, he shall approve it and send 1 copy of the plat to the register of deeds for recording;' or, if it does not so conform: 'Reject the plat and notify the proprietor in writing of the reasons.' While lands submerged by waters of an inland lake or stream are susceptible of private ownership, the Subdivision Control Act does not contemplate the division of such subaqueous or submerged lands for platting purposes. A plat which purports to subdivide subaqueous or submerged lands, or to describe a body of water wholly included within the plat as an outlot or parcel separate and distinct from parcels riparian or littoral thereto, must be rejected. Every subdivision of land must be made pursuant to a survey and map complying with requirements of the Subdivision Control Act. Section 125 of the Subdivision Control Act, supra. Section 136(e) of the Subdivision Control Act, supra, provides: 'When the subdivision is bounded by an irregular shoreline of a body of water, the bearings and distances of a closing intermediate traverse, extending across the plat so that it intersects the sidelines of the shore lots; the dimensions of the sidelines of the shore lots from the street line to the traverse line, and the distance from the traverse line to the water's edge as found at the time of the survey; distances along the traverse line between its intersections with the sidelines of the lots; the location of monuments at all angle points of the intermediate traverse. All lots extending to the water's edge shall be noted accordingly on the plat. If the proprietor intends to retain possession of the area between the intermediate traverse and the water's edge, a statement to that effect shall be noted on the plat.' Clearly then, lots adjacent to a body of water shall either extend to the water's edge of if they do not, the plat proprietor shall retain possession of and title to an area of land between the intermediate traverse and the water's edge. The act does not permit any extension of lot lines over land lying beneath a contiguous body of water. Section 138 of the Subdvision Control Act, supra, provides: 'When any part of a subdivision lies within or abuts a floodplain area, the plat shall include and show the following: '(a) The floodplain shall be shown within a contour line, established by the water resources commission, department of conservation. '(b) The contour line shall intersect the side lines of the lots. '(c) The sidelines shall be dimensioned to the traverse line from the street line and the established floodplain (contour) line. '(d) The floodplain area shall be clearly labeled on the plat with the words 'floodplain area'.' In pertinent part, section 140 of the Subdvision Control Act, supra, provides: 'All lots and outlots included in the plat shall be shown as follows: '(a) All lots numbered consecutively. '(b) All outlots lettered in alphabetical order. '(c) The length and bearing of each side lot line. '(d) The bearing of each front and rear lot line, except as otherwise provided in this section. '(e) A note showing the front line of any lot fronting on 2 or more streets or a body of water except for lots served by public sewers and public water or available and accessible thereto.' Section 141 of the Subdivision Control Act, supra, provides: 'When the plat includes or abuts certain improvements other than streets, alleys, roads or highways, such as county drains, lagoons, slips, waterways, lakes, bays or canals, which connect with or are proposed to connect with or enlarge public waters, the included or abutting portions of such proposed improvement shall be shown on the plat.' Clearly then, no lot or outlot shall be portrayed as including natural bodies of water; to the contrary each lot which is riparian or littoral to a stream or lake shall be measured from its intermediate traverse to: (a) the established floodplain (contour line), and (b) the water's edge; as well as to the (c) street line. Pursuant to section 144 of the Subdivision Control Act, supra, a final plat must bear the certificate of the proprietor, which shall be signed by: '(a) All persons holding the title by deed of the lands. '(b) All persons holding any other title of record. '(c) All persons holding title as mortgagee or vendee under land contract, or who are in possession but shall not include renters. '(d) The wives of persons named in subdivisions (a), (b) and (c).' A wholly artificial body of water included within or abutting a plat must, however, be shown upon the plat. Again quoting section 141 of the Subdivision Control Act, supra: 'When the plat includes or abuts certain improvements other than streets, alleys, roads or highways, such as county drains, lagoons, slips, waterways, lakes, bays or canals, which connect with or are proposed to connect with or enlarge public waters, the included or abutting portions of such proposed improvement shall be shown on the plat.' If lots contiguous to such waters are shown as running to the water's edge, the side lot lines must, as with natural bodies of water, be measured from an intermediate traverse to the waters edge; floodplain contour and front street line. In such case the artificial body is not to be subdivided. If it is the intent of a proprietor to set such improvements apart he must provide that contiguous lots do not run to waters' edge. As noted above, all riparian owners whose property adjoin the same stream or lake share correlative rights. I OAG, 1959-1960, No 3380, p 16, 19, (February 5, 1959), stated: '. . . Generally it can be expressed by saying that each riparian owner on a lake or stream has the right to make the use of the water bed of that lake or stream to its fullest extent as it existed in a state of nature and that as a corollary no riparian owner has the right by artificial filling or by assertion of exclusive proprietary interests to deprive other coriparians of the use of the full and complete surface of the lake or stream. . . .' For this reason the opinion concluded that the plat act (1) did not contemplate the subdivision or inclusion with a proposed plat of subaqueous or submerged lands. As noted, no change from this conclusion is warranted by the provisions of the Subdivision Control Act. That trust secures to each citizen the right to the free and unobstructed use of navigable bodies of water for navigation and other uses inherently associated therewith, including fishing, swimming, and wading. It is therefore my opinion that a proposed plat which purports to subdivide or include within its boundaries submerged or subaqueous lands on a natural inland lake or stream violates provisions of the Subdivision Control Act and must be rejected. It is my further opinion that a proposed plat which includes or abuts improvements such as county drains, lagoons, slips, waterways, lakes, bays or canals, which connect with or are proposed to connect with or enlarge public waters, shall show on the plat the included or abutting portions of such improvement or proposed improvement. The lands inundated by such improvement or proposed improvement shall not, however, be subdivided. Frank J. Kelley Attorney General (1)