SBM Real Property Law Section eNewsletter

April 2014

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Howard A. Lax, Bodman PLC

Patricia Paruch, Kemp Klein Law Firm

Court of Appeals Clarifies Definition of Riparian Rights

By Patrick A. Karbowski, McDonald Hopkins, PLC

In Holton v. Ward, (Mich App No. 308454, January 23, 2014), the Michigan Court of Appeals ruled that riparian/littoral rights do not attach to land abutting a large man-made body of water. In doing so, the court seems to have put rest any issue that may have existed as to whether the Inland Lakes and Streams Act (MCL 324.30101(i) and (s); MCL 324.30111) (ILSA) abrogated the common law definition of riparian rights.

Prior to splitting his parent parcel between subsequent owners Holton and Ward, the original common owner of the parcel created an earthen dam to collect surface water to eliminate a muddy wetland. The dam created a 20-acre pond, the majority of which was located on Ward's property. Adjoining property owner Holton claimed a riparian right to use the entire pond and sued Ward to remove a fence that prevented Holton from accessing Ward's portion of the pond.

Among other things, Holton argued that the ILSA created statutory riparian rights in landowners whose property abuts any body of water (natural and artificial) in excess of five acres. The court, after noting that the argument had not been preserved on appeal, criticized a contrary holding in Parsons v. Whittaker, (Mich App No. 170274, August 23, 1996, unpublished) cited by Holton in support of the ILSA argument.

The case confirms the long established common law rule that riparian/littoral rights do not attach to lands abutting artificial surface water bodies that do not abut a natural watercourse. The case clarifies that the language in ILSA establishing certain riparian rights for inland lakes and streams which are part of a natural watercourse (MCL 324.30111) does not abrogate this common law rule.

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Michigan Medical Marijuana Act Preempts Zoning Ordinance Penalizing MMMA-Compliant Use

By Norman Hyman, Strobl & Sharp

The Michigan Medical Marihuana Act (MMMA) immunizes registered qualifying patients from "penalty in any manner" for MMMA-compliant medical marijuana use. The City of Wyoming amended its zoning ordinance in 2010 to prohibit any land uses "contrary to federal law."

City resident John Ter Beek, a registered qualifying patient under the MMMA, filed suit claiming that the MMMA preempted the zoning ordinance. The city countered that the federal Controlled Substances Act (CSA) and its provision banning the manufacture, distribution, and dispensing of a controlled substance such as marijuana ( 21 USC §841), preempts the MMMA and allows the City to prohibit Ter Beek's use. The CSA states that:

§903 Application of State law. No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

The city argued that the MMMA conflicts with the CSA and the two statutes cannot consistently stand together.

In a unanimous decision, the Michigan Supreme Court found that the MMMA "immunity does not purport to alter the CSA's federal criminalization of marijuana or to undermine federal enforcement of that prohibition" and there was therefore no positive conflict between the MMMA and the CSA, and held that the MMMA preempted the Wyoming ordinance. Ter Beek v. Wyoming (Mich No. 145816, February 6, 2014). The Court discussed U.S. Supreme Court decisions on federal preemption principles which stress the strong presumption against federal preemption over state statutes.

Interested in writing a future article for the e-Newsletter?
Please contact co-editors:
Howard Lax at or Patricia Paruch at

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The views and opinions expressed in these articles are those of the authors, and they do not reflect in any way the positions of the State Bar of Michigan or the Real Property Law Section. These columns are meant for informational purposes only and should not be construed as legal advice.
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