22.00.3 Some Important General Legal Principles Relative To Flowing Waters

Grants by the United States of its public lands bounded on streams or other waters, made without reservation or restriction, are to be construed as to their effect according to the law of the state in which the lands lie.

Under Michigan law, the State of Michigan owns the bed beneath the Great Lakes and Lake St. Claire while adjoining land owners own to the center or thread of all other bodies of water (lakes, rivers and streams). Designation as ?navigable? affects the regulation and use of the water but has no bearing on bed ownership.

Note: Michigan law is contrary to the general rule that upon admission of a state into the Union, title to non-navigable river beds remained in the United States, but title to navigable streams passed to the state.

Grants by the United States prior to the admission to statehood extended to the beds of non-navigable streams and this cannot be subsequently changed by statute.

Title to the bed of non-navigable streams passed from the United States to the patentees.

Title to the bed of navigable streams passed to a state from the United States on admission to the Union.

Title to the bed of lands under non-navigable waters, but which are subject to the ebb and flow of the tide, passed to a state from the United States on admission to the Union.

The exclusive right of the riparian owner of a non-navigable stream to fishing cannot be affected by the legislature.

Title to the bed of a non-navigable stream depends on the law in effect at the time of the grant from the United States.

Land under navigable waters does not belong to the United States, and therefore, it can pass to a riparian grantee by force of a declaration by the state which owns it. In some states, the conveyance will be subject to a public trust or is a violation of public policy.

The respective states by virtue of their sovereignty, may use or dispose of the lands underlying navigable waters within their jurisdiction as they choose, subject always to the rights of the public in such waters and to the paramount power of Congress for the regulation of commerce between states and with foreign nations.

In the case of land bounded on a non-navigable stream, the United States assumes the position of a private owner subject to the general law of the state, so far as its conveyances are concerned.

The law of the state in which the water action takes place is the forum law to be applied. Exceptions to this principle are made in favor of federal law when:

  • The stream or other body of water is navigable and is part of interstate commerce.
  • The question of accreted material gradually deposited by action of the ocean on foreshore property, is at issue.