If you own waterfront property in Michigan, you may have wondered whether the water body is navigable. As we’ve discussed before in this space, citizens of the State of Michigan generally have the right to use the surface of a navigable body of water. That’s why anglers can fish near your shore or kayakers can cross your bottomlands. In some cases, questions arise as to whether a body of water is truly navigable, and what rights the public truly has on the water.
In Michigan, courts use the “floating log” test to determine the navigability of a body of water. As its name suggests, the test asks whether commercial logs once floated in it or the water is currently deep enough to float logs of commercial size. There does not appear to be a commonly accepted definition of “commercial size,” but it is safe to assume such logs would be rather large. Like many legal principles, this test comes from Michigan’s past. It is a carryover of our state’s logging history. While it sounds outdated to most of us today, it is still used by courts.
The navigability determination can be made in several ways. First, it can be determined by actually floating a log in the body of water. Second, historical records could show previous logging use of the water. Finally, an expert could calculate the relevant data (depth, volume, etc.) and compare it with other bodies of water which are undisputably navigable. It should also be noted that the body of water does not need to be continuously navigable to pass the test, only periodically. In many cases, it will be obvious whether a body of water is navigable. But in cases where there is a legitimate question as to navigability, a court will make the final determination.
As stated above, whether a body of water is navigable determines whether the public can make use of its surface. This means the old navigability test continues to be very important to this day. The attorneys at Dalton & Tomich regularly represent landowners in cases regarding riparian rights. Whether you have an active dispute or simply need an analysis of your rights, please do not hesitate to contact us. We would be happy to speak with you.
