The plaintiffs in this action are the current owners of several “back lots” near a lake. Plaintiffs’ properties do not contain any lake frontage; rather, plaintiffs claim a right to access the lake through a ten-foot-wide strip of land upon which has a dock extending into the lake. The record owners of the ten-foot strip are four people who died without conveying away any interest they had in the ten-foot strip. Their interest in the strip is therefore presumed to pass to their respective heirs, none of whom have been located or are parties to the litigation at issue.
Defendants are the owners of parcels directly neighboring both sides of that ten-foot-wide strip.
Sometime before 1980, the then-owners of the back lots erected a dock from or near the ten-foot strip. The then-owners of defendants’ properties filed suit to enjoin the then-owners of the back lots from encroaching on their property rights via this dock and using this dock in any way, including tying up rafts or pontoons. In 1980, the trial court issued the following ruling: The back lot owners have used the strip as an access to the lake for many years. A dock of varying size and shape has been maintained at the end of the strip for many years. The back-lot owners have built, maintained and used the dock for boating, fishing, swimming, wading, and normal lake recreation usage. For the purposes of this law suit, we find that the dock length and the tying of boats and rafts to it, at the far end had been done in a reasonable exercise. We would therefore enjoin only the use of anchorage that encroaches directly on and into the neighboring property owner’s submerged land.
It appears the now-owners of the back lots intended to use the access provided by the ten-foot strip more extensively than the prior owners via a dock that would allow for the mooring of more watercraft. Defendants apparently attempted to thwart this use by erecting two docks of their own. These docks were erected on either side of the ten-foot strip and prevent plaintiffs from mooring certain watercraft. Plaintiffs’ filed private nuisance and trespass claims.
Because they have no ownership interest in the ten-foot strip, the most the back-lot owners can hold is a right of way to access the water via a license or an easement. Because plaintiffs held only a license to access the lake, plaintiffs therefore could not maintain an action for private nuisance. A mere license also cannot support a trespass claim. Rather, a license is a mere permission to do some act or series of acts on the land without having any permanent interest in it.
If you are facing boundary, easement, or access disputes seek the advice of an experienced and skilled real estate litigation attorney. Litigation can be costly and time-consuming, make sure your attorney is focused on helping you resolve disputes in the most efficient and cost-effective manner possible.