JOAN M GLASS V RICHARD A GOECKEL
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W.
Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 29, 2005
JOAN M. GLASS,
Plaintiff-Appellant,
v
No. 126409
RICHARD A. GOECKEL and KATHLEEN D. GOECKEL,
Defendants-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
The issue presented in this case is whether the public
has a right to walk along the shores of the Great Lakes
where a private landowner ostensibly holds title to the
water’s edge.
component
To resolve this issue we must consider two
questions:
(1)
how
the
public
trust
doctrine
affects private littoral1 title; and (2) whether the public
1
Modern usage distinguishes between “littoral” and
“riparian,” with the former applying to seas and their
coasts and the latter applying to rivers and streams.
Black’s Law Dictionary (7th ed).
Our case law has not
always precisely distinguished between the two terms.
Consistent with our recognition that the common law of the
1
trust encompasses walking among the public rights protected
by the public trust doctrine.
Despite the competing legal theory offered by Justice
Markman, our Court unanimously agrees that plaintiff does
not
interfere
with
defendants’
property
rights
walks within the area of the public trust.
to
insist,
as
do
Justices
Markman
and
when
she
Yet we decline
Young,
that
submersion2 at a given moment defines the boundary of the
public trust.
Similarly, we cannot leave uncorrected the
Court of Appeals award to littoral landowners of a “right
of exclusive use” down to the water’s edge, which upset the
balance between private title and public rights along our
Great Lakes and disrupted a previously quiet status quo.
Plaintiff Joan Glass asserts that she has the right to
walk
along
Lake
Huron.
Littoral
landowners
defendants
sea applies to our Great Lakes, see People v Silberwood,
110 Mich 103, 108; 67 NW 1087 (1896), citing Illinois
Central R Co v Illinois, 146 US 387, 437; 13 S Ct 110; 36 L
Ed 1018 (1892), we will describe defendants’ property as
littoral property.
Although we have attempted to retain
consistency in terminology throughout our discussion, we
will at times employ the term “riparian” when the facts or
the language previously employed so dictate. For example,
a littoral owner of property on the Great Lakes holds
riparian rights as a consequence of owning waterfront
property. See Hilt v Weber, 252 Mich 198, 225; 233 NW 159
(1930).
2
We note that, in the view of our colleagues,
“submerged land” includes not only land that lies beneath
visible water, but wet sands that are “infused with water.”
See post at 52.
2
Richard
and
trespasses
Kathleen
on
shoreline.
their
Goeckel
maintain
private
Plaintiff
land
argues
when
that
that
she
the
plaintiff
walks
public
the
trust
doctrine, which is a legal principle as old as the common
law
itself,
and
the
Great
Lakes
Submerged
Lands
Act
(GLSLA), MCL 324.32501 et seq.,3 protect her right to walk
along the shore of Lake Huron unimpeded by the private
title of littoral landowners.
Plaintiff contends that the
public trust doctrine and the GLSLA preserve public rights
in the Great Lakes and their shores that limit any private
property rights enjoyed by defendants.
Although
we
find
plaintiff’s
reliance
on
the
GLSLA
misplaced, we conclude that the public trust doctrine does
protect her right to walk along the shores of the Great
Lakes.
of
American law has long recognized that large bodies
navigable
water,
such
as
the
oceans,
are
natural
resources and thoroughfares that belong to the public.
In
our common-law tradition, the state, as sovereign, acts as
trustee
of
public
rights
in
these
natural
resources.
Consequently, the state lacks the power to diminish those
rights when conveying littoral property to private parties.
3
The Great Lakes Submerged Lands Act, formerly MCL
322.701 et seq., is now part of Michigan’s Natural
Resources and Environmental Protection Act, MCL 324.101 et
seq.
3
This “public trust doctrine,” as the United States Supreme
Court stated in Illinois Central R Co v Illinois, 146 US
387,
435;
13
S
Ct
110;
36
L
Ed
1018
(1892)
(Illinois
Central I), and as recognized by our Court in Nedtweg v
Wallace, 237 Mich 14, 16-23; 208 NW 51 (1926), applies not
only to the oceans, but also to the Great Lakes.
Pursuant to this longstanding doctrine, when the state
(or entities that predated our state’s admission to the
Union) conveyed littoral property to private parties, that
property remained subject to the public trust.
In this
case, the property now owned by defendants was originally
conveyed subject to specific public trust rights in Lake
Huron and its shores up to the ordinary high water mark.
The
ordinary
high
water
mark
lies,
as
described
by
Wisconsin, another Great Lakes state, where “‛the presence
and action of the water is so continuous as to leave a
distinct mark either by erosion, destruction of terrestrial
vegetation,
or
other
easily
recognized
characteristic.’”
State v Trudeau, 139 Wis 2d 91, 102; 408 NW2d 337 (1987)
(citation
omitted).4
Consequently,
4
although
defendants
We refer to a similarly situated sister state not for
the entirety of its public trust doctrine, but for a
credible definition of a term long employed in our
jurisprudence. Despite Justice Markman’s protestation over
upsetting settled rules, see, e.g., post at 37, we have
4
retain full rights of ownership in their littoral property,
they hold these rights subject to the public trust.
We
hold,
therefore,
that
defendants
cannot
prevent
plaintiff from enjoying the rights preserved by the public
trust doctrine.
Because walking along the lakeshore is
inherent in the exercise of traditionally protected public
rights
of
fishing,
hunting,
and
navigation,
our
public
trust doctrine permits pedestrian use of our Great Lakes,
up to and including the land below the ordinary high water
mark.
Therefore, plaintiff, like any member of the public,
enjoys the right to walk along the shore of Lake Huron on
land
lakeward
Accordingly,
of
we
the
reverse
ordinary
the
high
judgment
of
water
the
mark.
Court
of
Appeals and remand this case to the trial court for further
proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Defendants own property on the shore of Lake Huron,
and their deed defines one boundary as “the meander line of
Lake Huron.”5
Plaintiff owns property located across the
recourse to this persuasive definition because, as noted by
Justice Young, this area of law has been characterized by
critical terms receiving less than precise definition. See
post at 1.
5
We note that the parties do not contest the terms of
the deed by which defendants own their property.
We take
as given that defendants hold title to their property
5
highway
from
defendants’
lakefront
home.
This
case
originally arose as a dispute over an express easement.
Plaintiff’s
deed
provides
for
a
fifteen-foot
easement
across defendants’ property “for ingress and egress to Lake
Huron,” and she asserts that she and her family members
have
used
the
easement
access to the lake.
consistently
since
1967
to
gain
The parties have since resolved their
dispute about plaintiff’s use of that easement.
This
present
appeal
concerns
a
different
issue:
plaintiff’s right as a member of the public to walk along
the shoreline of Lake Huron, irrespective of defendants’
private
sought
walking
title.
to
During
enjoin
along
the
the
proceedings
defendants
from
shoreline.
below,
interfering
Defendants
plaintiff
with
sought
her
summary
disposition under MCR 2.116(C)(8) and (9), for failure to
state a claim upon which relief may be granted and for
failure to state a defense.
matter
of
law,
plaintiff
Defendants argued that, as a
could
not
walk
on
defendants’
property between the ordinary high water mark and the lake
without defendants’ permission.
according to the terms of their deed. The record does not
reflect any argument over the meaning of the term “meander
line” in this context. The issue before us is not how far
defendants’ private littoral title extends, but how the
public trust affects that title.
6
The trial court granted plaintiff summary disposition
under MCR 2.116(I)(2).
Although the court concluded that
no clear precedent controls resolution of the issue, it
held that plaintiff had the right to walk “lakewards of the
natural ordinary high water mark” as defined by the GLSLA.
The Court of Appeals reversed the trial court's order
in a published opinion.
(2004).
262 Mich App 29; 683 NW2d 719
It stated “[t]hat the state of Michigan holds in
trust the submerged lands beneath the Great Lakes within
its borders for the free and uninterrupted navigation of
the public . . . .”
from
navigational
Id. at 42.
issues,
The Court held that, apart
the
state
holds
title
to
previously submerged land, subject to the exclusive use of
the riparian owner up to the water’s edge.
Thus,
under
the
Court
of
Appeals
Id. at 43.
analysis,
neither
plaintiff nor any other member of the public has a right to
traverse the land between the statutory ordinary high water
mark and the literal water’s edge.
We subsequently granted leave to appeal.
471 Mich 904
(2004).
STANDARD OF REVIEW
We review de novo the grant or denial of a motion for
summary disposition.
597 NW2d 817 (1999).
Maiden v Rozwood, 461 Mich 109, 118;
In a motion under MCR 2.116(C)(8),
7
“[a]ll
true
well-pleaded
and
construed
nonmovant.”
v
Auto
in
a
allegations
light
most
Maiden, supra at 119.
Club
(1990),
factual
“a
Ins
Ass’n,
motion
435
for
Mich
summary
are
accepted
favorable
to
as
the
As we stated in Nasser
33,
47;
457
disposition
NW2d
under
637
MCR
2.116(C)(9) is tested solely by reference to the parties’
pleadings.”
ANALYSIS
THE HISTORY
I.
OF THE
PUBLIC TRUST DOCTRINE
Throughout the history of American law as descended
from English common law, our courts have recognized that
the sovereign must preserve and protect navigable waters
for its people.
Emperor
This obligation traces back to the Roman
Justinian,
whose
Institutes
provided,
“Now
the
things which are, by natural law, common to all are these:
the
air,
running
seashores.
. . .”
water,
the
sea,
and
therefore
the
Thus, no one is barred access to the seashore .
Justinian, Institutes, book II, title I, § 1, as
translated in Thomas, The Institutes of Justinian, Text,
Translation
and
Commentary
(Amsterdam:
North-Holland
Publishing Company, 1975), p 65; see also 9 Powell, Real
Property, § 65.03(2), p 65-39 n 2, quoting a different
translation.
The law of the sea, as developed through
English common law, incorporated the understanding that
8
both the title and the dominion of the sea, and
of rivers and arms of the sea, where the tide
ebbs and flows, and of all the lands below high
water mark, within the jurisdiction of the Crown
of England, are in the King.
Such waters, and
the lands which they cover, either at all times,
or at least when the tide is in, are incapable of
ordinary and private occupation, cultivation and
improvement; and their natural and primary uses
are public in their nature, for highways of
navigation and commerce, domestic and foreign,
and for the purpose of fishing by all the King’s
subjects.
Therefore the title, jus privatum, in
such lands . . . belongs to the King as the
sovereign;
and
the
dominion
thereof,
jus
publicum, is vested in him as the representative
of the nation and for the public benefit.
[Shively v Bowlby, 152 US 1, 11; 14 S Ct 548; 38
L Ed 331 (1894).]
This rule—that the sovereign must sedulously guard the
public’s interest in the seas for navigation and fishing—
passed from English courts to the American colonies, to the
Northwest
Nedtweg,
Territory,
supra
at
and,
17;
ultimately,
accord
to
Phillips
Michigan.
Petroleum
See
Co
v
Mississippi, 484 US 469, 473-474; 108 S Ct 791; 98 L Ed 2d
877 (1988), quoting Shively, supra at 57.
Michigan’s courts recognized that the principles that
guaranteed public rights in the seas apply with equal force
to the Great Lakes.
Thus, we have held that the common law
of the sea applies to the Great Lakes.
See Hilt v Weber,
252
(1930);
Mich
198,
Silberwood,
110
213,
Mich
217;
233
103,
108;
NW
67
159
NW
1087
People
(1896).
v
In
particular, we have held that the public trust doctrine
9
from the common law of the sea applies to the Great Lakes.6
See
Nedtweg,
supra
at
16-23;
Silberwood,
supra
at
108;
State v Venice of America Land Co, 160 Mich 680, 702; 125
NW 770 (1910); accord Illinois Central I, supra at 437.
Accordingly,
Michigan’s
common
under
law,
the
longstanding
state,
as
principles
sovereign,
has
of
an
obligation to protect and preserve the waters of the Great
Lakes and the lands beneath them for the public.7
The state
serves, in effect, as the trustee of public rights in the
Great Lakes for fishing, hunting, and boating for commerce
or pleasure.
See Nedtweg, supra at 16; Venice of America
Land Co, supra at 702; State v Lake St Clair Fishing &
6
In this decision, we consider the public trust
doctrine only as it has applied to the Great Lakes and do
not consider how it has applied to inland bodies of water.
7
Although not implicated in this case, we note that
the Great Lakes and the lands beneath them remain subject
to the federal navigational servitude.
This servitude
preserves for the federal government control of all
navigable waters “for the purpose of regulating and
improving navigation . . . .” Gibson v United States, 166
US 269, 271-272; 17 S Ct 578; 41 L Ed 996 (1897).
“[A]lthough the title to the shore and submerged soil is in
the various States and individual owners under them, it is
always subject to the servitude in respect of navigation
created in favor of the Federal government by the
Constitution.” Id. at 272. Apart from this servitude, the
federal government has relinquished to the state any
remaining ownership rights in the Great Lakes. See 43 USC
1311.
10
Shooting Club, 127 Mich 580, 586; 87 NW 117 (1901); Lincoln
v Davis, 53 Mich 375, 388; 19 NW 103 (1884).
The state, as sovereign, cannot relinquish this duty
to preserve public rights in the Great Lakes and their
natural resources.
As we stated in Nedtweg, supra at 17:
The State may not, by grant, surrender such
public rights any more than it can abdicate the
police
power
or
other
essential
power
of
government.
But this does not mean that the
State must, at all times, remain the proprietor
of, as well as the sovereign over, the soil
underlying navigable waters. . . . The State of
Michigan has an undoubted right to make use of
its
proprietary
ownership
of
the
land
in
question, [subject only to the paramount right
of] the public [to] enjoy the benefit of the
trust.
Therefore,
convey
although
lakefront
necessarily
conveys
the
state
property
such
retains
to
property
the
private
subject
authority
to
parties,
it
to
the
public
trust.
At common law, our courts articulated a distinction
between
jus
principle:
privatum
and
jus
publicum
to
capture
this
the alienation of littoral property to private
parties leaves intact public rights in the lake and its
submerged land.
See Nedtweg, supra at 20; McMorran Milling
Co v C H Little Co, 201 Mich 301, 313; 167 NW 990 (1918);
Sterling v Jackson, 69 Mich 488, 506-507; 37 NW 845 (1888)
(Campbell, J., dissenting); see also Collins v Gerhardt,
11
237
Mich
38,
55;
211
NW
115
(1926)
(Fellows,
J.,
concurring) (recognizing the “different character” of the
rights held by the federal government as proprietor and as
trustee in an inland navigable stream); Lorman v Benson, 8
Mich 18, 27-28 (1860) (reciting the common-law distinction
between jus publicum and jus privatum in a case involving
ownership of a riverbed).8
Jus
publicum
refers
to
public
rights
in
navigable
waters and the land covered by those waters;9 jus privatum,
in contrast, refers to private property rights held subject
8
Indeed, other states also recognize the distinction
between private title and public rights. See, e.g., State
v Longshore, 141 Wash 2d 414, 427; 5 P3d 1256 (2000) (“The
state’s ownership of tidelands and shorelands is comprised
of two distinct aspects--the jus privatum and the jus
publicum.”); Smith v State, 153 AD2d 737, 739-740; 545
NYS2d 203 (1989) (“This doctrine grows out of the commonlaw concept of the jus publicum, the public right of
navigation and fishery which supersedes a private right of
jus privatum.”) (citations omitted); Bell v Town of Wells,
557 A2d 168, 172-173 (Me, 1989) (stating that the different
types of title in the same shore property “remain in force"
to this day); see also R W Docks & Slips v State, 244 Wis
2d 497, 509-510; 628 NW2d 781 (2001) (applying the public
trust doctrine as adopted in its state constitution).
9
See Black’s Law Dictionary
(7th ed), defining “jus
publicum” as “[t]he right, title, or dominion of public
ownership; esp., the government’s right to own real
property in trust for the public benefit.”
12
to the public trust.10
As the United States Supreme Court
explained in Shively, supra at 13:
In England, from the time of Lord Hale, it
has been treated as settled that the title in the
soil of the sea, or of arms of the sea, below the
ordinary high water mark, is in the King, except
so far as an individual or a corporation has
acquired rights in it by express grant or by
prescription or usage; and that this title, jus
privatum, whether in the King or in a subject, is
held subject to the public right, jus publicum,
of navigation and fishing. [Citations omitted.]
Thus, when a private party acquires littoral property from
the sovereign, it acquires only the
jus privatum.
Our
courts have continued to recognize this distinction between
private title and public rights when they have applied the
public trust doctrine.
Public rights in certain types of
access to the waters and lands beneath them remain under
the
protection
of
the
state.
Under
the
public
trust
doctrine, the sovereign never had the power to eliminate
those
rights,
property
so
remain
any
subsequent
subject
to
conveyances
those
public
of
littoral
rights.
See
Nedtweg, supra at 17; see also People ex rel Director of
Conservation v Broedell, 365 Mich 201, 205; 112 NW2d 517
(1961).
Consequently,
littoral
10
landowners
have
always
See id., defining “jus privatum” as “[t]he right,
title, or dominion of private ownership.”
13
taken
title
subject
to
the
limitation
of
public
rights
preserved under the public trust doctrine.
THE SCOPE
II.
OF THE
PUBLIC TRUST DOCTRINE
Having established that the public trust doctrine is
alive and well in Michigan, we are required in this appeal
to examine the scope of the doctrine in Michigan:
whether
it extends up to the ordinary high water mark or whether,
as
defendants
actually
below
argue,
it
applies
the
waters
of
only
the
to
land
that
is
Lakes
at
any
defined
the
established
the
Great
particular moment.
A. THE GREAT LAKES SUBMERGED LANDS ACT
Plaintiff
scope
of
the
argues
public
that
trust
the
Legislature
doctrine
and
outer limits of the doctrine in the GLSLA, thus supplanting
our case law.
This act, according to plaintiff, manifests
a legislative intent to claim all land lakeward of the
ordinary high water mark.
Thus, plaintiff claims that the
public trust extends to all land below the ordinary high
water mark as defined in the act, which states that “the
ordinary
high-water
mark
shall
be
at
the
following
elevations above sea level, international Great Lakes datum
of
1955:
Lake
Superior,
601.5
feet;
Lakes
Michigan
and
Huron, 579.8 feet; Lake St. Clair, 574.7 feet; and Lake
Erie, 571.6 feet.”
MCL 324.32501.
14
We
find
misplaced.
plaintiff’s
reliance
on
the
GLSLA
to
be
First, the act does not show a legislative
intent to take title to all land lakeward of the ordinary
high water mark.
MCL 324.32502 provides:
The lands covered and affected by this part
are all of the unpatented lake bottomlands and
unpatented made lands in the Great Lakes,
including the bays and harbors of the Great
Lakes, belonging to the state or held in trust by
it,
including
those
lands
that
have
been
artificially filled in. The waters covered and
affected by this part are all of the waters of
the Great Lakes within the boundaries of the
state. This part shall be construed so as to
preserve and protect the interests of the general
public in the lands and waters described in this
section,
to
provide
for
the
sale,
lease,
exchange, or other disposition of unpatented
lands and the private or public use of waters
over patented and unpatented lands, and to permit
the filling in of patented submerged lands
whenever it is determined by the department that
the private or public use of those lands and
waters will not substantially affect the public
use of those lands and waters for hunting,
fishing,
swimming,
pleasure
boating,
or
navigation or that the public trust in the state
will not be impaired by those agreements for use,
sales, lease, or other disposition. The word
“land” or “lands” as used in this part refers to
the
aforesaid
described
unpatented
lake
bottomlands
and
unpatented
made
lands
and
patented lands in the Great Lakes and the bays
and harbors of the Great Lakes lying below and
lakeward of the natural ordinary high-water mark,
but this part does not affect property rights
secured by virtue of a swamp land grant or rights
acquired by accretions occurring through natural
means or reliction. For purposes of this part,
the ordinary high-water mark shall be at the
following
elevations
above
sea
level,
international Great Lakes datum of 1955: Lake
Superior, 601.5 feet; Lakes Michigan and Huron,
15
579.8 feet; Lake St. Clair, 574.7 feet; and Lake
Erie, 571.6 feet.
The first sentence of this section states that the act
applies
only
“unpatented
to
made
“unpatented
lands.”
The
lake
bottomlands”
fourth
sentence,
and
however,
defines “land” or “lands” in the act as including not only
the
bottomlands
and
made
lands
described
in
the
first
sentence, but also “patented lands in the Great Lakes and
the bays and harbors of the Great Lakes lying below and
lakeward of the natural ordinary high-water mark . . . .”11
Thus, the act covers both publicly owned land (the lake
bottomlands and made lands described in the first sentence)
and privately owned land that was once owned by the state
(patented land below the ordinary high water mark).
In
other words, the act reiterates the state’s authority as
trustee of the inalienable jus publicum, which extends over
both publicly and privately owned lands.
The act makes no
claims to alter the delineation of the
jus privatum
of
individual landowners.
Moreover,
boundaries
of
the
the
act
never
public
purports
trust.
to
establish
Rather,
the
the
GLSLA
establishes the scope of the regulatory authority that the
11
A land patent is “[a]n instrument by which the
government conveys a grant of public land to a private
person.” Black’s Law Dictionary (7th ed), p 1147.
16
Legislature
doctrine.
exercises,
pursuant
to
the
public
trust
Indeed, most sections of the act merely regulate
the use of land below the ordinary high water mark.12
The
only section of the act that purports to deal with property
rights is § 32511, MCL 324.32511:
A riparian owner may apply to the department
for
a
certificate
suitable
for
recording
indicating the location of his or her lakeward
boundary or indicating that the land involved has
accreted to his or her property as a result of
natural accretions or placement of a lawful,
permanent structure. The application shall be
accompanied by a fee of $200.00 and proof of
upland ownership.
12
Section 32503 provides that the Department of
Environmental Quality (DEQ) may enter into agreements
regarding land use or alienate unpatented land to the
extent that doing so will not impair “the public trust in
the waters . . . .” MCL 324.32503. Section 32504 governs
applications for deeds or leases to unpatented lands. MCL
324.32504.
Section 32504a concerns the restoration and
maintenance of lighthouses. MCL 324.32504a. Section 32505
covers unpatented lake bottomlands and unpatented made
lands, again providing that such lands may be conveyed as
long as the public trust “will not be impaired or
substantially injured.”
MCL 324.32505.
Sections 32506
through 32509 concern the valuation of unpatented lands and
various administrative matters (with § 32509 delegating
authority to promulgate rules to the DEQ).
MCL 324.32506
through 324.32509.
Section 32510 establishes that a
violation of the act is a misdemeanor punishable by
imprisonment or a fine.
MCL 324.32510.
Prohibited acts
are defined in § 32512, MCL 324.32512, with § 32512a, MCL
324.32512a, specifically focusing on the removal of
vegetation.
Sections
32513
and
32514
return
to
administrative matters, such as applications for permits
and public notice of hearing. MCL 324.32513 and 324.32514.
Section 32515, MCL 324.32515, deals with enlargement of
waterways, and § 32516, MCL 324.32516, returns again to the
removal of vegetation.
17
As shown previously, a vital distinction in public trust
law exists between private title (jus privatum) and those
public
rights
that
limit
that
title
(jus
publicum).
Section 32511 only establishes a mechanism for landowners
to
certify
the
privatum).
boundary
The
publicum)—distinct
of
boundary
from
a
their
of
private
the
boundary
property
public
on
trust
private
(jus
(jus
littoral
title—remains a separate question, a question that the act
does not answer.
Finally,
plaintiff
also
relies
on
the
following
language in § 32502 to argue that the GLSLA establishes the
scope of the public trust doctrine:
This part [the GLSLA] shall be construed so
as to preserve and protect the interests of the
general public in the lands and waters described
in this section, to provide for the sale, lease,
exchange, or other disposition of unpatented
lands and the private or public use of waters
over patented and unpatented lands, and to permit
the filling in of patented submerged lands
whenever it is determined by the department that
the private or public use of those lands and
waters will not substantially affect the public
use of those lands and waters for hunting,
fishing,
swimming,
pleasure
boating,
or
navigation or that the public trust in the state
will not be impaired by those agreements for use,
sales, lease, or other disposition.[13]
13
MCL 324.32502.
18
Again, plaintiff’s reliance on this section is misplaced.
This sentence states that the act will be construed to
protect the public interest.
But that rule of construction
begs the question and cannot resolve whether the public has
an interest in a littoral property in the first place.
It
provides no reason to expand the public trust beyond the
limits
established
elsewhere
to
at
determine
common
the
law.
precise
Thus,
scope
we
of
must
the
look
public
trust to which § 32502 refers.14
B. THE PUBLIC TRUST DOCTRINE
AS
APPLIED
TO THE
GREAT LAKES
Because the GLSLA does not define the scope of the
public trust doctrine in Michigan, we must turn again to
our common law.
In applying the public trust doctrine to the oceans,
courts
have
traditionally
held
that
rights
protected
by
this doctrine extend from the waters themselves and the
lands
beneath
them
to
a
point
14
on
the
shore
called
the
The Legislature has recognized the public trust in
other contexts as well. As early as 1913, the Legislature
had made provision for the disposition and preservation of
the public trust by entrusting trust lands and waters to
the care of the predecessor of the DEQ. See 1913 PA 326,
1915 CL 606 et seq.; see also Nedtweg, supra at 18, 20
(upholding the constitutionality of the act because any
authorized uses would yield to the “rights of the public”).
In addition, the Legislature has conveyed small fractions
of the lakes and shoreline to private parties, though only
after ensuring that such conveyances did not disturb the
public trust. See, e.g., 1954 PA 41; 1959 PA 31; 1959 PA
84.
19
“ordinary high water mark.”
See, e.g., Shively, supra at
13; Hardin v Jordan, 140 US 371, 381; 11 S Ct 808; 35 L Ed
428 (1891); see also Hargrave’s Law Tracts, 11, 12, quoted
in Shively, supra at 12 (“‘The shore is that ground that is
between the ordinary high water and low water mark [and
this
ground
belongs
to
the
sovereign.]’”).
The
United
States Supreme Court described this common-law concept of
the “high water mark” in
Borax Consolidated, Ltd v Los
Angeles, 296 US 10, 22-23; 56 S Ct 23; 80 L Ed 9 (1935):
The tideland extends to the high water mark.
This does not mean . . . a physical mark made
upon the ground by the waters; it means the line
of high water as determined by the course of the
tides. By the civil law, the shore extends as far
as the highest waves reach in winter. But by the
common law, the shore “is confined to the flux
and reflux of the sea at ordinary tides.” It is
the land “between ordinary high and low-water
mark, the land over which the daily tides ebb and
flow. When, therefore, the sea, or a bay, is
named as a boundary, the line of ordinary highwater mark is always intended where the common
law prevails.” [Citations omitted.]
An
“ordinary
high
water
mark”
therefore
intuitive meaning when applied to tidal waters.
has
an
Because of
lunar influence, ocean waves ebb and flow, thus reaching
one point on the shore at low tide and reaching a more
landward point at high tide.
The latter constitutes the
high water mark on a tidal shore.
mark
and
the
low
water
mark
is
20
The land between this
submerged
on
a
regular
basis, and so remains subject to the public trust doctrine
as “submerged land.”
See, e.g., Illinois Central R Co v
Chicago, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622 (1900)
(Illinois
Central
II)
(“But
it
is
equally
well
settled
that, in the absence of any local statute or usage, a grant
of lands by the State does not pass title to submerged
lands
below
[the]
high
water
mark
.
.
.
."
(Citations
omitted; emphasis added.)
Michigan’s courts have adopted the ordinary high water
mark as the landward boundary of the public trust.
For
example, in an eminent domain case concerning property on a
bay of Lake Michigan, we held that public rights end at the
ordinary high water mark.
Peterman v Dep’t of Natural
Resources, 446 Mich 177, 198-199; 521 NW2d 499 (1994).15
Thus, we awarded damages for destruction of the plaintiff’s
property above the ordinary high water mark that resulted
from construction by the state (which occurred undisputedly
in the water and within the public trust).
Id.
Similarly,
in an earlier case where the state asserted its control
under the public trust doctrine over a portion of littoral
15
This decision relied not simply on a “navigational
servitude”
unique
to
that
case,
but
rooted
that
“navigational servitude” in the public trust doctrine. See
id. at 194 n 22, citing Collins, supra at 45-46; Venice of
America Land Co, supra; Nedtweg, supra at 16-17.
21
property, the Court also employed the high water mark as
the boundary of the public trust.
Venice of America Land
Co, supra at 701-702.
Our Court has previously suggested that Michigan law
leaves some ambiguity regarding whether the high or low
water mark serves as the boundary of the public trust.
Broedell,
supra
at
205-206.
But
the
See
established
distinction in public trust jurisprudence between public
rights
(jus
resolves
publicum)
this
and
apparent
private
ambiguity.
title
(jus
Cases
privatum)
that
seem
to
suggest, at first blush, that the public trust ends at the
low
water
littoral
than
mark
actually
owner’s
the
boundary
private
of
the
considered
property
public
the
(jus
trust
boundary
privatum)
(jus
of
the
rather
publicum).16
16
See La Porte v Menacon, 220 Mich 684; 190 NW 655
(1922) (resolving a dispute between private landowners over
a deed term and bounding property at the low water mark);
Lake St Clair Fishing & Shooting Club, supra at 587, 594595 (setting the boundary of private title at the low water
mark, while simultaneously endorsing Shively and Illinois
Central I and II); Silberwood, supra at 107 (reciting the
holdings of other jurisdictions that a riparian owner’s fee
ends at the low water mark); Lincoln, supra at 384
(considering the boundaries of a grant made by the federal
government, rather than the boundary on what the government
retained).
In Collins, supra at 60 (Fellows, J.,
concurring), our Court differed and used the high water
mark as the boundary to private title, but that case
involved property on an inland stream.
In
(1898),
People v Warner, 116 Mich 228, 239; 74 NW 705
the Court appeared to place a single boundary
22
Because the public trust doctrine preserves public rights
separate from a landowner’s fee title, the boundary of the
public
trust
need
not
equate
landowner’s littoral title.
with
the
boundary
of
a
Rather, a landowner’s littoral
title might extend past the boundary of the public trust.17
between the riparian owner’s title and state control,
stating that “[t]he adjoining proprietor’s fee stops [at
the high or low water mark], and there that of the State
begins.”
Yet this boundary marks “the limit of private
ownership.”
Id.
This recalls the fact that the state
might hold proprietary title or, separate from that title,
title as trustee to preserve the waters and lands beneath
them on behalf of the public.
The Court proceeded to
distinguish the state’s interest in the waters from the
interest of the public in navigation, fish, and fowl. Id.
Thus, in context, the Warner Court recognized a boundary on
a riparian title, a title that remained subject to the
public trust.
But the Court did not equate that boundary
with the limit of the public trust.
17
Although in the context of an inland stream case,
Justice
Fellows
noted
the
possibility
of
different
boundaries on the public trust and riparian ownership in
his concurring opinion in Collins, supra at 52, quoting
Bickel v Polk, 5 Del 325, 326 (Del Super, 1851):
“The right of fishing in all public streams
where the tide ebbs and flows, is a common right,
and the owner of land adjoining tide water,
though his title runs to low water mark, has not
an exclusive right of fishing; the public have
the right to take fish below high water mark,
though upon soil belonging to the individual, and
would not be trespassers in so doing; but if they
take the fish above high water mark, or carry
them above high water mark and land them on
private property, this would be a trespass . . .
.
In all navigable rivers, where the tide ebbs
and flows, the people have of common right the
privilege of fishing, and of navigation, between
23
Our
case
law
necessarily
contrary,
nowhere
ends
the
where
suggests
public
distinction
we
that
rights
have
private
begin.
drawn
title
To
between
the
private
title and public rights demonstrates that the jus privatum
and the jus publicum may overlap.
Nor does this recognition of the potential for overlap
represent
a
novel
invention.
While
not
binding
on
Michigan, other courts have similarly accommodated the same
practical
waters:
challenge
of
fixing
boundaries
on
shifting
they acknowledged the possibility of public rights
coextensive with private title.
See, e.g., State v Korrer,
127 Minn 60, 76; 148 NW 617 (1914) (Even if a riparian
owner holds title to the ordinary low water mark, his title
is absolute only to the ordinary high water mark and the
intervening shore space between high and low water mark
remains subject to the rights of the public.); see also
North Shore, Inc v Wakefield, 530 NW2d 297, 301 (ND, 1995)
(stating that neither the state nor the riparian owner held
absolute
interests
between
high
and
low
water
mark);
Shaffer v Baylor’s Lake Ass’n, Inc, 392 Pa 493, 496; 141
A2d 583 (1958) (subjecting private title held to low water
mark to public rights up to high water mark); Flisrand v
high and low
private soil.”
water
mark;
24
though
it
be
over
Madson, 35 SD 457, 470-472; 152 NW 796 (1915) (same as
Korrer, supra); Bess v Humboldt Co, 3 Cal App 4th 1544,
1549; 5 Cal Rptr 2d 399 (1992) (noting that it is “well
established”
that
riparian
title
to
the
low
water
mark
remained subject to the public trust between high and low
water marks).
In
the
instant
case,
the
Court
of
Appeals
relied
extensively on Hilt to set a boundary on where defendants’
property ended and where plaintiff’s rights (as a member of
the
public)
began.
But
our
concern
in
Hilt
was
the
boundary of a littoral landowner’s private title,18 rather
than the boundary of the public trust.
206
(noting
water’s
that
edge”).
the
government
Indeed,
the
See Hilt, supra at
conveyed
Hilt
title
Court
“to
the
endorsed
the
Nedtweg Court’s discussion of the public trust and decided
the issue of the boundary on private littoral title within
the context of the public trust doctrine.
224-225, 227.19
See id. at 203,
Consequently, the Court of Appeals erred by
18
Moreover, the particular issue in Hilt was the
boundary of private title on relicted/accreted land, which
is not at issue in the present case.
19
The Hilt Court concluded by stating how the public
trust doctrine affected a riparian owner’s private title:
While the upland owner, in a general way,
has full and exclusive use of the relicted land,
his enjoyment of its use, especially his freedom
25
granting defendants an exclusive right of use down to the
water’s edge, because littoral property remains subject to
the
public
trust
and
because
defendants
hold
title
according to the terms of their deed.
Our
public
trust
doctrine
employs
a
term,
“the
ordinary high water mark,” from the common law of the sea
and applies it to our Great Lakes.
While this term has an
obvious meaning when applied to tidal waters with regularly
recurring high and low tides, its application to nontidal
waters like the Great Lakes is less apparent.
See, e.g.,
Lincoln, supra at 385 (noting, amidst a discussion of the
extent of private littoral title, some imperfection in an
analogy between the Great Lakes and the oceans).
In the
Great Lakes, water levels change because of precipitation,
barometric
pressure,
and
other
forces
that
lack
the
regularity of lunar tides, which themselves exert a less
noticeable influence on the Great Lakes than on the oceans.
Applying a term from the common law of the sea, despite the
obvious difference between the oceans and the Great Lakes,
to develop and sell it, is clouded by the lack of
fee title, the necessity of resorting to equity
or to action for damages instead of ejectment to
expel a squatter, and the overhanging threat of
the State’s claim of right to occupy it for State
purposes.
The State, except for the paramount
trust purposes, could make no use of the land
. . . . [Id. at 227.]
26
has led to some apparent discontinuity in the terminology
employed
in
our
case
law.
Notwithstanding
some
prior
imprecision in its use, a term such as “ordinary high water
mark” attempts to encapsulate the fact that water levels in
the Great Lakes fluctuate.
This fluctuation results in
temporary exposure of land that may then remain exposed
above where water currently lies.
This land, although not
immediately and presently submerged, falls within the ambit
of the public trust because the lake has not permanently
receded
from
that
point
and
influence up to that point.
may
yet
again
exert
its
See Nedtweg, supra at 37
(setting apart from the public trust that land which is
permanently
“rendered
exposed
suitable
by
for
the
“recession
human
of
water”
occupation”).
and
Thus,
so
the
ordinary high water mark still has meaning as applied to
the Great Lakes and marks the boundary of land, even if not
instantaneously
trust.
submerged,
included
within
the
public
Our sister state, Wisconsin, defines the ordinary
high water mark as
the point on the bank or shore up to which the
presence and action of the water is so continuous
as to leave a distinct mark either by erosion,
destruction of terrestrial vegetation, or other
easily recognized characteristic.
And where the
bank or shore at any particular place is of such
a character that is impossible or difficult to
ascertain where the point of ordinary high-water
mark is, recourse may be had to other places on
27
the bank or shore of the same stream or lake to
determine whether a given stage of water is above
or below ordinary high-water mark.
[Diana
Shooting Club v Husting, 156 Wis 261, 272; 145 NW
816 (1914), (citation omitted).]
Although Diana Shooting Club involved a river, Wisconsin
has applied this definition not only to inland waters, but
also to the Great Lakes.
See R W Docks & Slips, supra at
508-510; Trudeau, supra at 102.20
This definition has long
served a state with which we share a border and that also
has an extensive Great Lakes shoreline.
Although we do not import our sister state’s public
trust doctrine where this Court has already spoken, we are
persuaded to adopt this definition to clarify a term long
used
but
little
defined
in
our
jurisprudence.
Indeed,
Wisconsin’s definition of ordinary high water mark is not
20
While an average member of the public may not
require this degree of precision, Trudeau illustrates how a
factual dispute over the location of the ordinary high
water mark may be resolved.
In that case, the parties
presented evidence via expert witnesses. Id. at 108. For
example, the state’s expert testified that he “analyzed
several aerial photographs . . . , the government survey
maps, the site’s present configuration, and stereo [threedimensional] photographs . . . .” Id. Numerous resources
exist to provide guidance to professionals.
See, e.g.,
Simpson,
River
&
Lake
Boundaries:
Surveying
Water
Boundaries—A Manual (Kingman, AZ: Plat Key Publishing,
1994); Cole, Water Boundaries (New York: J Wiley & Sons,
1997).
Not surprisingly, this Court requires a survey
based on proper monuments to establish an actual property
line.
Hurd v Hines, 346 Mich 70, 78-79; 77 NW2d 341
(1956).
The same requirement would apply for a boundary
set by one of our Great Lakes.
28
far
removed
Michigan.
from
meanings
previously
recognized
in
See MCL 324.30101(i);21 1999 AC, R 281.301(j);
Peterman, supra at 198 n 29 (noting a statutory definition
regarding inland waters, now enacted as MCL 324.30101(i),
when
considering
Michigan).
the
federal
the
ordinary
high
water
mark
on
Lake
This definition also parallels that employed by
government.
See,
e.g.,
33
CFR
328.3(e).22
Thus, we clarify the meaning of “ordinary high water mark”
consistently
with
a
definition
21
that
has
Enacted after the GLSLA employed a
International Great Lakes Datum for the
324.30101(i), which contains definitions
in the former Inland Lakes and Streams
part provides:
served
another
standard based on
Great Lakes, MCL
previously found
Act, in relevant
“Ordinary-high water mark” means the line
between upland and bottomland that persists
through successive changes in water levels, below
which the presence and action of the water is so
common or recurrent that the character of the
land is marked distinctly from the upland and is
apparent in the soil itself, the configuration of
the surface of the soil, and the vegetation.
22
33 CFR 328.3(e) provides:
The term ordinary high water mark means
that line on the shore established by the
fluctuations of water and indicated by physical
characteristics such as clear, natural line
impressed on the bank, shelving, changes in the
character of soil, destruction of terrestrial
vegetation, the presence of litter and debris,
or other appropriate means that consider the
characteristics of the surrounding areas.
29
Great Lakes state for some hundred years and is in accord
with the term’s limited development in our own state.
The
concepts
behind
the
term
“ordinary
high
water
mark” have remained constant since the state first entered
the
Union
up
to
the
present:
boundaries
on
water
dynamic and water levels in the Great Lakes fluctuate.23
are
In
light of this, the aforementioned factors will serve to
identify
the
ordinary
high
water
mark,
but
the
precise
location of the ordinary high water mark at any given site
on the shores of our Great Lakes remains a question of
fact.
III. THE PUBLIC TRUST INCLUDES WALKING
WITHIN ITS
BOUNDARIES
We have established thus far that the private title of
littoral
landowners
remains
subject
beneath the ordinary high water mark.
23
to
the
public
trust
But plaintiff, as a
As our Court has consistently recognized, water
boundaries necessarily defy static definition.
See Hilt,
supra at 219.
For example, the common law recognized
riparian rights to accretion and reliction.
This meant
that riparian landowners gained private title to land
adjacent
to
their
property
that
gradually
became
permanently exposed through erosion or a change in water
level. See Peterman, supra at 192-193. The recognition of
these riparian rights shows that our courts have refused to
fix a line that defies natural processes.
Also, the
concept of a “moveable freehold” to accommodate the effects
of accretion and reliction on the bounds of littoral title
shows our acknowledgement of the shifting nature of water
boundaries. See id., Klais v Danowski, 373 Mich 262, 275276; 129 NW2d 414 (1964), and Broedell, supra at 206, all
quoting Hilt, supra at 219.
30
member of the public, may walk below the ordinary high
water mark only if that practice receives the protection of
the public trust doctrine.
We hold that walking along the
shore, subject to regulation (as is any exercise of public
rights in the public trust) falls within the scope of the
public trust.
To
reiterate,
the
public
trust
doctrine
serves
to
protect resources—here the waters of the Great Lakes and
their submerged lands—shared in common by the public.
See
pp 9-11 of this opinion; see also Venice of America Land
Co, supra at 702 (noting that “the State of Michigan holds
these
lands
people”).
in
trust
for
the
use
and
benefit
of
its
As trustee, the state must preserve and protect
specific public rights below the ordinary high water mark
and
may
permit
interfere
trust.
with
only
these
those
traditional
uses
notions
that
of
the
do
not
public
See Obrecht v Nat'l Gypsum Co, 361 Mich 399, 412-
413; 105 NW2d 143 (1960).
not
private
permit
the
state,
Yet its status as trustee does
through
any
of
its
branches
of
government, to secure to itself property rights held by
31
littoral owners.
See Hilt, supra at 224 (“The state must
be honest.”).24
We first note that neither party contests that walking
falls within public rights traditionally protected under
our public trust doctrine.
Rather, they dispute where, not
whether, plaintiff may walk:
below the literal water’s
edge or below the ordinary high water mark.
While the
parties’ agreement on this point cannot determine the scope
of
public
rights,
this
agreement
does
existence of a common sense assumption:
lakeshore
is
inherent
in
the
indicate
the
walking along the
exercise
of
traditionally
protected public rights.
Our
courts
have
traditionally
articulated
rights
protected by the public trust doctrine as fishing, hunting,
and
navigation
for
commerce
or
pleasure.
See
Nedtweg,
supra at 16; Venice of America Land Co, supra at 702; Lake
24
For example, in Hilt, supra at 225, we noted several
riparian rights held by landowners whose property abuts
water.
These riparian rights include the “[u]se of the
water for general purposes, as bathing, domestic use, etc.
[,] . . . wharf[ing] out to navigability [,] . . . [a]ccess
to navigable waters [, and] . . . . [t]he right to
accretions.”
(Citations omitted.)
Moreover, “[r]iparian
rights are property, for the taking or destruction of which
by the State compensation must be made, unless the use has
a real and substantial relation to a paramount trust
purpose.” Id.; see also Peterman, supra at 191. Thus, we
have long recognized the value of riparian rights, but
those rights remain ever subject to the “paramount” public
trust.
32
St Clair Fishing & Shooting Club, supra at 586; Lincoln,
supra at 388.25
In order to engage in these activities specifically
protected by the public trust doctrine, the public must
have a right of passage over land below the ordinary high
water mark.
Indeed, other courts have recognized a “right
of passage” as protected with their public trust.
See Town
of Orange v Resnick, 94 Conn 573, 578; 109 A 864 (1920)
(listing
as
public
rights
“fishing,
boating,
hunting,
bathing, taking shellfish, gathering seaweed, cutting sedge
and . . . passing and repassing”); Arnold v Mundy, 6 NJL 1,
12 (1821) (reserving to the public the use of waters for
“purposes of passing and repassing, navigation, fishing,
fowling, [and] sustenance”).
We
can
protect
traditional
public
rights
under
our
public trust doctrine only by simultaneously safeguarding
activities inherent in the exercise of those rights.
See
e.g., Attorney General, ex rel Director of Conservation v
Taggart,
306
Mich
432,
435,
443;
11
NW2d
193
(1943)
(permitting wading in a stream pursuant to the public trust
25
Indeed, we have even noted that the public might cut
ice or, in the context of inland waters, might float logs
downriver.
See Lake St Clair Fishing & Shooting Club,
supra at 587; Grand Rapids Booming Co v Jarvis, 30 Mich
308, 319 (1874).
33
doctrine).
Walking the lakeshore below the ordinary high
water mark is just such an activity, because gaining access
to the Great Lakes to hunt, fish, or boat required walking
to reach the water.26
Consequently, the public has always
held a right of passage in and along the lakes.
Even before our state joined the Union, the Northwest
Ordinance of 1787, art IV, protected our Great Lakes in
trust:
“The navigable waters leading into the Mississippi
and St. Lawrence, and the carrying places between the same,
shall be common highways and forever free . . . .”
Northwest Ordinance of 1787, art IV.
See
Given that we must
protect the Great Lakes as “common highways,” see id., we
acknowledge
that
our
public
trust
doctrine
permits
pedestrian use–in and of itself–of our Great Lakes, up to
and including the land below the ordinary high water mark.
Yet in Hilt, supra at 226, our Court noted the rule
stated by the Wisconsin Supreme Court in Doemel v Jantz,
180 Wis 225; 193 NW 393 (1923):
“[T]he public has no right
of passage over dry land between low and high-water mark
but the exclusive use is in the riparian owner . . . .”
When read in context, this quotation does not represent a
26
This does not imply a right of lateral access in the
public, i.e., a right to traverse the land of littoral
owners to reach the lands and waters held in trust.
See,
e.g., Collins, supra at 49.
34
rejection
trust.
Court
of
walking
as
impermissible
within
our
public
As correctly described by Justice Markman, the Hilt
cited
regarding
this
the
passage
Michigan
as
Supreme
part
of
Court’s
earlier departure from the common law.27
its
discussion
correction
of
an
See post at 51-53.
But rather than adopting that rule from Doemel, the Hilt
Court listed this rule, among others, to refute the notion
that the state held “substantially absolute title” in the
lakes and the lands beneath them.
Hilt, supra at 224.
Instead, “the State has title in its sovereign capacity,”
id., pursuant to the public trust doctrine.
Consequently,
“the right of the State to use the bed of the lake, except
for
the
trust
riparian owner.”
at 578.
purposes,
is
subordinate
to
that
of
the
Id. at 226, citing Town of Orange, supra
In light of this exception for the public trust,
littoral owners’ rights supersede public rights in the same
property (by virtue of their ownership) only to the extent
that littoral owners’ rights do not contravene the public
trust.
See id.
When the Hilt Court recognized the greater
27
The Kavanaugh cases departed from the common law by
fixing the meander line as the boundary on private littoral
title and by fixing the legal status of land below that
line, regardless of subsequent physical changes. See Hilt,
supra at 213; see also Kavanaugh v Rabior, 222 Mich 68; 192
NW 623 (1923); Kavanaugh v Baird, 241 Mich 240; 217 NW 2
(1928).
35
rights of littoral property owners, it did not alter the
public trust or preclude the public from walking within it.
We must conclude with two caveats.
By no means does
our public trust doctrine permit every use of the trust
lands
and
waters.
Rather,
this
doctrine
protects
only
limited public rights, and it does not create an unlimited
public right to access private land below the ordinary high
water mark.
See Ryan v Brown, 18 Mich 196, 209 (1869).
The public trust doctrine cannot serve to justify trespass
on
private
property.
Finally,
any
exercise
of
these
traditional public rights remains subject to criminal or
civil regulation by the Legislature.
IV.
RESPONSE TO OUR COLLEAGUES
Our Court unanimously agrees that defendants cannot
prevent
plaintiff
from
walking
along
the
shore
Huron within the area of the public trust.
separate
theory
that
undergirds
the
of
Lake
Despite the
analysis,
Justices
Markman and Young agree with the majority that plaintiff
may walk along Lake Huron in the area of the public trust.
Moreover,
several
other
the
majority
points.
We
and
our
agree
colleagues
that
the
agree
public
on
trust
doctrine, descended at common law, applies to our Great
Lakes.
See
Hilt,
supra
at
202
(“[T]his
Court
has
consistently held that the State has title in fee in trust
36
for the public to submerged beds of the Great Lakes within
its boundaries.”).
We further agree that the public trust
doctrine requires the state as trustee to preserve public
rights in the lakes and lands submerged beneath them.
Nedtweg, supra at 16.
See
Finally, we agree that plaintiff
retains the same right to walk along the Great Lakes she
has
always
held.
Post
at
50-52.
That
our
colleagues
disagree with the other members of this Court over the
particulars of how far those public rights extend ought not
overshadow our fundamental agreement:
plaintiff does not
interfere with defendants’ property rights when she walks
within the public trust.
Despite
the
sound
and
fury
concurring and dissenting opinion,28
of
Justice
Markman’s
we do not radically
depart from our precedents or destabilize property rights
by
upholding
and
applying
our
28
common
law.
While
our
For example, Justice Markman predicts the appearance
of fences along the shore.
Yet to the extent that
landowners may do as they see fit on their own property,
they could always erect a fence.
While we share Justice
Markman’s desire to preserve any “long coexist[ence] in
reasonable harmony,” post at 2 n 2, we find peculiar his
implication that resolving an actual instance of disharmony
between these parties or correcting the lower court’s
departure from our common law equates with this Court’s
endorsement of (or even comment on) property owners using
fences.
Were we to adopt our colleagues’ approach,
littoral landowners could place fences as far down as the
water’s edge.
37
colleagues in dissent claim to maintain the status quo,
they
do
not
clarifies
do
the
so.
status
Rather,
quo.
the
The
majority
trial
retains
court
and
correctly
permitted plaintiff to walk lakeward of the ordinary high
water mark.
the
The Court of Appeals also correctly recognized
importance
reverse
its
of
the
public
requirement
that
trust
doctrine,
plaintiff
walk
though
only
we
where
water currently lies.
Yet our colleagues in dissent would repeat this error
by continuing to grant an exclusive right of possession to
littoral
landowners.
Indeed,
they
would
compound
this
error by granting littoral landowners all property down to
where
unsubmerged
water’s
edge,29
land
ends,
regardless
of
which
the
they
terms
locate
of
at
the
landowners’
29
Numerous states bound their public trust, not at an
instantaneously defined “water’s edge,” but at their high
water mark. See, e.g., Barboro v Boyle, 119 Ark 377, 385;
178 SW 378 (1915) (high water mark for a lake); Simons v
French, 25 Conn 346, 352-353 (1856) (high water mark on
tidal waters); Day v Day, 22 Md 530, 537 (1865) (high water
mark on tidally influenced rivers and streams); State v
Florida Natural Properties, Inc, 338 So 2d 13, 19 (Fla,
1976) (ordinary high water mark); Freeland v Pennsylvania R
Co, 197 Pa 529, 539; 47 A 745 (1901) (ordinary high water
mark); Allen v Allen, 19 RI 114, 115; 32 A 166 (1895) (high
water mark); State v Hardee, 259 SC 535, 541-542; 193 SE2d
497 (1972) (high water mark on tidally influenced stream).
Indeed, references in other states to “water’s edge”
often tie that term to either a high or low water mark.
See, e.g., Concord Mfg Co v Robertson, 66 NH 1, 19-21; 25 A
718 (1889); Lamprey v State, 52 Minn 181, 198; 53 NW 1139
38
deeds.30
We would not so casually set aside the countless
deeds that order property rights for the length of our
state
shoreline.
landowners
the
We
would
absolute
preserved for the people.
a
grave
disturbance
to
not
title
give
to
away
public
to
littoral
trust
land
Such a departure would represent
the
property
rights
of
littoral
landowners and of the public.
Notwithstanding Justice Markman’s characterization of
this case as “aberrational,” post at 4, 5, and 65, we have
not invented the dispute presented to us.
Nor do we have
the luxury of forsaking public rights; our Court is one of
the “sworn guardians of Michigan’s duty and responsibility
as trustee of the [Great Lakes].”
412.
See Obrecht, supra at
For the reasons described earlier in the opinion, we
conclude that public rights may overlap with private title.
Consequently, we refuse to enshrine–for the first time in
our history–a solitary boundary between them.
In this way,
(1893); Hazen v Perkins, 92 Vt 414, 419-421; 105 A 249
(1918); Mont Code, § 70-16-201; ND Cent Code, § 47-01-15.
30
In the absence of a review of the myriad deeds by
which landowners hold title to property on the Great Lakes,
Justice Markman assumes that their deeds will describe, in
some manner, the “water’s edge.” Yet, as he acknowledges,
that water’s edge may shift.
This could result in water
reaching above the low water mark, even though a deed could
convey title to the low water mark. See, e.g., La Porte v
Menacon, 220 Mich 684, 687; 190 NW 655 (1922) (enforcing a
deed that extended private title to the “shore,” meaning
the “water’s edge at its lowest mark”).
39
we preserve littoral title as landowners have always held
it, and we preserve public rights always held by the state
as trustee.
In dissent, our colleagues resist acknowledging the
boundary of the public trust as the ordinary high water
mark.
To reach this conclusion, Justice Markman relies on
cases concerning the boundary of private title, rather than
the boundary of the public trust.
See e.g., Silberwood;
Lake St Clair Hunting & Fishing; Hilt.31
accept
our
Michigan–that
Court’s
“‘the
holding–in
limit
of
a
the
ordinary high water mark . . . .’”
(citation omitted).32
He refuses to
case
involving
public’s
right
is
Lake
the
Peterman, supra at 198
Although he criticizes the majority
31
Justice Markman makes frequent reference to colonial
cases, particularly relying on Massachusetts. But as that
state’s high court has made clear, at common law the state
owned to the mean high water line subject to public rights
in navigation and fishing. See Opinion of the Justices to
the House of Representatives, 365 Mass 681, 684-685; 313
NE2d 561 (1974). What the court described as the colonial
ordinance of 1641 to 1647 changed the common law to allow
private title to the low water mark, but even that extended
title remained subject to public rights.
Id.
Unlike
Massachusetts, no colonial ordinance altered the common-law
concepts in Michigan.
32
In seeming contradiction to his reading of Peterman,
Justice Markman does accept that “the ‘ordinary high water
mark’ is simply the outside edge of property that may . . .
be regulated to preserve future navigational interests at
times of high water . . . .” Post at 29. He also goes so
far as to suggest that our Court has equated the high and
40
for vagueness with regard to the definition of that term,33
we clarify the meaning of that term in a way that allows
for the fact-specific inquiry necessary to account for the
range of physical forces and variety of landforms along our
shoreline.34
We decline to draw, merely for a charade of
clarity, a universal line along the Great Lakes without any
factual development of the point in the instant case or
low water marks, see post at 55, but the Warner Court on
which he relies did not address that issue. Warner, supra
at 239 (“If the absence of tides upon the Lakes, or their
trifling effect if they can be said to exist, practically
makes high and low water mark identical for the purpose of
determining boundaries (a point we do not pass upon), the
limit of private ownership is thereby marked.”).
Additionally, our precedent stands in contradiction to
Justice Young’s intuition that the ordinary high water mark
has no application in Michigan. See, e.g., Peterman, supra
at 198-199 (calculating damages, at least in part, on the
basis of the location of the ordinary high water mark). In
contrast, the “wet sand” standard supported by Justice
Young appears for the first time in our state in this case.
We have serious reservations about adopting the view that
he joins Justice Markman in advancing. See post at 49-51.
33
In apparent tension with his claim that the majority
fails to rely on Michigan common law, Justice Markman
purports to offer an authoritative definition for ordinary
high water mark that derives from a federal case and a 1997
dictionary. See post at 41-42 & n 35.
34
We are unpersuaded that Justice Markman’s recitation
of natural forces demonstrates a difficulty in ascertaining
the ordinary high water mark, because those same forces
operate to shift the “water’s edge.”
See post at 43-48.
If anything, the results of this scientific expedition show
the complexity of arriving at a water-tight definition,
rather than prove that the “water’s edge” concept escapes
similar difficulties.
41
legal argument on an issue of significance to our state’s
jurisprudence.
Nor
does
provide
our
superior
intuitively
colleagues’
clarity.
appear
to
“water’s
Although
mean
where
the
edge”
the
concept
term
meets
water
might
land,
Justice Markman expands the term to include sand dampened
by water.
See, e.g., post at 50 (“Because by definition
such
are
sands
within
infused
with
water,
the
the
definition
of
‘submerged
colleagues’
conception
of
“water’s
wet
sands
fall
lands.’”).
edge”
Our
neglects
to
account for (1) geography where sand is absent; (2) sudden
changes in water levels such as storm surges; (3) what
degree of dampness suffices:
sight,
or
a
scientific
review
that identified by touch,
that
could
identify
the
presence of a single water molecule; and (4) the source of
the water, where dampness may arise because of contact with
a liquid, such as rain, other than water from the Great
Lakes.
property
Also,
boundary
landowners.
our
the
instant-by-instant
affords
little
determination
certainty
to
of
a
littoral
Given these serious difficulties in applying
colleagues’
“water’s
edge”
rule
and
the
absence
of
support in our case law, we refuse to shift the boundary on
the public trust away from the ordinary high water mark.
42
As trustee, the state has an obligation to protect the
public trust.
Because
The state cannot take what it already owns.
private
littoral
title
remains
subject
to
the
public trust, no taking occurs when the state protects and
retains that which it could not alienate:
public rights
held pursuant to the public trust doctrine.35
the
loss
result
of
from
littoral
an
property
or
unconstitutional
riparian
taking.
Certainly,
rights
could
See,
e.g.,
Peterman, supra at 198, 208 (compensating the plaintiffs
for losses above the ordinary high water mark); see also
Bott v Natural Resources Comm, 415 Mich 45, 80; 327 NW2d
838 (1982); Hilt, supra at 225.
Yet, here, defendants have
not lost any property rights.
Rather, they retain their
property subject to the public trust, just as all property
that abuts the Great Lakes in Michigan remains subject to
the public trust, pursuant to our common law.
35
The United States Supreme Court has held that the
issue before us is a matter of state property law.
See
Phillips Petroleum Co v Mississippi, 484 US 469, 475; 108 S
Ct 791; 98 L Ed 2d 877 (1988) (“[T]he individual States
have the authority to define the limits of the lands held
in public trust and to recognize private rights in such
lands as they see fit.”); see also Shively, supra at 40
(“[T]he
title
and
rights
of
riparian
or
littoral
proprietors in the soil below high water mark of navigable
waters are governed by the local laws of the several
States, subject, of course, to the rights granted to the
United States by the Constitution.”).
43
Justice
Markman
also
criticizes
the
majority
for
leaving unanswered many questions, several of which require
the adoption of the legal framework that he proposed.
Yet
this case raises none of the questions that Justice Markman
poses.
In general, we reserve the judgment of this Court
for “actual cases and controversies” and do not “declare
principles or rules of law that have no practical legal
effect
in
the
case
before
us
.
.
.
.”
Federated
Publications, Inc v City of Lansing, 467 Mich 98, 112; 649
NW2d 383 (2002).
Accordingly, we decline to rule on issues
that are not before us.
V.
CONCLUSION
We conclude that plaintiff, as a member of the public,
may walk the shores of the Great Lakes below the ordinary
high water mark.
Under longstanding common-law principles,
defendants hold private title to their littoral property
according to the terms of their deed and subject to the
public trust.
We therefore reverse the judgment of the
Court of Appeals and remand this case to the trial court
for further proceedings consistent with this opinion.
Maura D. Corrigan
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
44
S T A T E
O F
M I C H I G A N
SUPREME COURT
JOAN M. GLASS,
Plaintiff-Appellant,
v
No. 126409
RICHARD A. GOECKEL AND KATHLEEN D. GOECKEL,
Defendants-Appellees.
_______________________________
YOUNG, J. (concurring in part and dissenting in part).
This case poses a deceptively simple question: where,
if anywhere, can a member of the public walk on the private
beach of one of our Great Lakes without trespassing on a
lakefront (littoral) owner’s property?
Although the question is simple, the answer, as amply
demonstrated by the more than one hundred pages of the
rival
opinions
filed
in
this
case,
is
muddled
by
an
abstruse body of precedent that has been less than precise
in defining critical terms and issues.
This was a well-
briefed and argued case that has resulted in a vigorous
debate within the Court.
Justice
Markman
present
The opinions of the majority and
compelling,
principled,
but
competing constructions of an ambiguous body of Michigan
law and that of other jurisdictions concerning Great Lakes
property rights.
In the final analysis, I believe that
answer offered by Justice Markman is more firmly anchored
than
that
of
the
majority
in
the
admittedly
obscure
property law of the Great Lakes.
I concur in the majority’s determination that the Great
Lakes Submerged Lands Act (GLSLA), MCL 324.32501 et seq.,
does not create a right to walk the shores of our Great
Lakes.
The Act plainly evinces the Legislature’s intent to
regulate the use of land below what the International Great
Lakes Datum identifies as the “ordinary high water mark,”
rather
than
to
define
new
public
rights
or
limit
established property rights.1
However, I join Justice Markman’s opinion with respect
to the other issues presented by this appeal.
Like Justice
Markman, I believe the majority errs by recognizing a right
that we have never before recognized-the right to “walk”
the private beaches of our Great Lakes- and by granting
public access to private shore land up to an ill-defined
and
utterly
chimerical
“ordinary
high
water
mark”
as
described in the majority opinion.2
1
See ante at 14-19.
See ante at 19-30. The majority concedes that:
“Applying a term [ordinary high water mark] from the common
law of the sea, despite the obvious difference between the
oceans and the Great Lakes, has lead to some apparent
discontinuity in the terminology employed in our case law.”
2
2
To
be
sure,
the
majority’s
opinion
constitutes
a
concerted and honest effort to give coherence to a very
vague body of precedent.
However admirable the majority’s
effort, I remain convinced that the “ordinary high water
mark” concept on which the majority relies applies only to
tidal waters, with their regularly recurring high and low
tides.3
The only “water mark” that one can find on the
Great Lakes is the water’s edge—viz., the wet portion of
the
shore
flowing.
over
I
which
believe
the
it
lake
is
is
only
presently
in
this
ebbing
area
of
and
wet
shoreline that the public may walk.
They may do so, not
because
walk”
of
a
recognized
“right
to
the
otherwise
private beaches of our Great Lakes, for no such “right” has
ever been recognized previously to be a part of Michigan’s
public trust doctrine.4
Nor, in my view, is the public’s
Ante at 26-27. Precisely so. In effort to employ a term
that does not adequately reflect the physical realities of
our Great Lakes, the majority has borrowed definitions
variously from statutes and Wisconsin cases in a struggle
to make this tidal term fit where it does not, and in so
doing, has immeasurably expanded the scope of the public
trust.
3
See post at 31-35.
4
Until today, Michigan cases have only recognized the
right of the public to use the public trust for navigation,
hunting, fishing, and fowling.
See, e.g., Hilt v Weber,
252 Mich 198, 224; 233 NW 159 (1930); Collins v Gerhardt,
237 Mich 38, 46; 211 NW 115 (1926); State v Lake St Clair
3
opportunity to walk the shoreline a product of an overlap
between private and public property titles as the majority
asserts. Rather, I believe that the littoral landowner has
no property claim to assert over submerged land—land over
which the waters of a Great Lake is presently ebbing and
flowing and which constitutes the lake bed.
This area is
the outer boundary of the public trust that is owned by and
maintained for the People of Michigan.
The
difficulty
of
the
majority’s
rule
and
the
soundness of Justice Markman’s approach is evident when one
actually tries to apply their different standards to the
shore.
In the attached photograph,5 an area of darker, wet
sand forms the outer boundary of the lake bed.
is
presently
acting
on
this
portion
of
the
The water
beach,
evidenced by the fact that the land is waterlogged.
as
Under
Justice Markman’s view and my own, it is only in this area
that the public may walk, and it may do so because the land
is presently subject to reinundation and is part of the
Fishing
(1901).
&
Shooting
Club,
127
5
Mich
580,
586;
87
NW
117
Photograph by David Hansen, Minnesota Agricultural
Experiment Station, University of Minnesota.
Reproduced
with permission.
4
lake bed. Thus, in the photograph, both the seagull and the
beach walker are within the public trust.6
Where,
however,
lies
the
majority’s
water mark” in this photograph?
“ordinary
high
Presumably, the majority
would identify the point where sand gives way to vegetation
in the upper right-hand corner of the picture.
The lake
water is nowhere near that point now and, absent a storm,
the water is unlikely to reach that point any time in the
near
future.
vegetation
6
line
Even
if
the
due
to
extremely
Accordingly, I
the zone of wet sands
so without creating a
no property interests
lake
did
high
rise
to
meet
precipitation
the
or
would hold that plaintiff may walk in
on Lake Huron, provided that she does
nuisance, because the defendants have
in the bed of that lake.
5
powerful barometric forces, in what sense would the line of
vegetation be an
ordinary
high water mark in the sense
suggested by the majority’s definition?
Moreover, the majority notes that its ordinary high
water mark excludes all dry land except that “temporar[ily]
expos[ed]”7 by the water.
The pictorial beach illustration
shows how unsatisfactory is the majority’s formulation of
its definition of “ordinary high water mark” as applied to
our Great Lakes: What exactly does the majority mean by
“temporary” exposure?
If it simply means land from which
the lake waters have “not permanently receded,”8 at what
point may anyone determine that the recession of the water
is “permanent”?
lake bed
If the portion of the shore between the
(including the wet sand area over which the lake
is presently lapping) and the vegetation line has been dry
for a season or more, can it truly be argued that this area
of
the
beach
is
“temporarily”
exposed?
These
are
apparently pure questions of fact for the majority,9 but I
believe they are critical threshold questions that must be
posed
and
answered
7
Ante at 27.
9
giving
Ante at 27.
8
when
Ante at 30.
6
the
term
“ordinary
high
water mark” a workable legal definition as applied to the
Great Lakes.
In
essence,
then,
I
believe
that
the
majority
concludes that the dry sandy area in the attached picture
is
entirely
within
this
the
area
below
the
protected,
looks
like
“ordinary
high
state-owned
it
may
have
water
mark”
public
trust)
been
subject
(thus
because
to
the
influence of water at some unidentifiable point in the past
and because it may again, at some unidentifiable point in
the future, be covered by the lake.
is
an
impractical
proposition
If nothing else, this
because
it
requires
the
uncritical application to our nontidal Great Lakes of a
term–the “ordinary high water mark”-that is applicable only
to tidal waters.
I believe the analysis offered by Justice Markman is
more persuasive than that offered by the majority.
In my
view, not only has Justice Markman analyzed the applicable
common law decisions with greater accuracy but, in contrast
with the majority opinion, he has articulated a rule that
is both faithful to the physical realities of our Great
Lakes and consonant with the available confused precedent
that we have all valiantly struggled to decipher.10
10
If we must transform the term “ordinary high water
mark” in order to use it, I believe that we ought at least
7
For
these
reasons,
I
concur
in
part
II(A)
of
the
majority opinion but join parts I-III and V of Justice
Markman’s
opinion
in
respectfully
dissenting
from
the
remainder of the majority opinion.
Robert P. Young, Jr.
define and apply it in a way that reflects the physical
nature of our non-tidal Great Lakes and that does least
damage to heretofore stable lakefront property rights in
the State.
8
S T A T E
O F
M I C H I G A N
SUPREME COURT
JOAN M. GLASS,
Plaintiff-Appellant,
v
No. 126409
RICHARD A. GOECKEL AND KATHLEEN D. GOECKEL,
Defendants-Appellees.
_______________________________
MARKMAN, J. (concurring in part and dissenting).
Because I would not alter the longstanding status quo
in our state concerning the competing rights of the public
and lakefront property owners, I respectfully dissent.
In
concluding that the “public trust doctrine” permits members
of the public to use unsubmerged lakefront property up to
the “ordinary high water mark,” the majority creates new
legal rules in Michigan out of whole cloth by adopting
Wisconsin law in piecemeal fashion and discarding Michigan
rules that have defined the relationship between the public
and lakefront property owners for virtually the entirety of
our
state’s
1
history.1
Equally
troubling,
the
majority
Although, quite remarkably, the majority purports
that it “retains and clarifies the status quo,” ante at 38,
there is not a scintilla of support for the proposition
replaces clear and well-understood rules-- rules that have
produced reasonable harmony over the decades in Michigan-with obscure rules.
about
the
One of the few things that is clear
majority’s
opinion
is
that
it
will
lead
inevitably to more litigation-- more litigation in an area
of the law that, mercifully, has been largely free from
such litigation for the past century and a half in our
state.
In the place of the reasonable harmony that has
developed between the public and littoral property owners,
there will be litigation.
In the place of open beaches,
there almost certainly will be a proliferation of fences
erected by property owners determined to protect their now
uncertain rights.2
In the place of rules that have both
that Wisconsin law has ever been the law of Michigan, not a
single Michigan case referencing the majority’s new test,
and not a paragraph of argument in any of the briefs of
plaintiffs, defendants, or amici identifying Wisconsin law
as the law of Michigan.
2
The majority fails to recognize why its new rules are
a prescription for fences.
It is, of course, true that a
lakefront property owner “could always erect a fence,” as
the majority observes.
Ante at 37 n 28.
However, fences
have not heretofore generally been thought necessary.
Under current law, which I would not alter, members of the
public and lakefront property owners have long coexisted in
reasonable harmony. It is the majority’s actions today in
departing from our precedents and creating new and vague
law that will almost certainly transform this relationship
and cause at least some property owners to believe that
they must erect fences in order to protect boundaries that
now have been called into question and that apparently will
2
upheld
the
property
rights
of
lakefront
landowners
and
provided an environment in which reasonable public use of
lakefront
property,
routinely
take
including
place,
the
beach-walking,
majority
introduces
could
new
rules
that will create tensions between the public and lakefront
property owners.
In the place of a boundary that can be
determined by simple observation, the majority’s new rules
would
require
“aerial
property
photographs,”
owners
a
and
the
“government
public
survey
to
bring
map[]”
and
“stereo [three-dimensional] photographs,” ante at 28 n 20,
in order to determine where their rights begin and end.
the
place
of
rules
in
which
property
rights
have
In
been
clearly defined by law, the majority expands the “public
trust” in an uncertain fashion, in accordance with rules
and regulations to be issued at some future time by the
administrative agencies of state government.
In the place
of the clear rule of law in which property rights have been
respected in a consistent fashion for more than a century
and
a
half,
there
will
be
political
dispute
and
negotiation.
This is the first such dispute to come before this
Court in our history.
be subject
Resources.
to
Rather than recognizing the harmony
definition
by
3
the
Department
of
Natural
that has been produced by the present rules in the course
of
the
between
millions
the
of
public
interactions
and
occur
each
year
owners
property
that
along
the
Great
Lakes, the majority instead creates new rules on the basis
of an isolated and aberrational dispute between the present
parties.
The majority departs from the longstanding status quo
in our state, despite the following: (1) there is no realm
of the law in which there is a greater need to maintain
stability
and
continuity
than
with
regard
to
property
rights; (2) the parties in this case have all asserted that
they favor a maintenance of the status quo;3 (3) there is no
3
Plaintiff argues that use of the term “‘water’s edge’
[in Hilt v Weber, 252 Mich 198; 233 NW 159 (1930)] is
consistent with the nomenclature of many other state and
federal cases using ‘water’s edge’ to mean ‘high water
mark.’” Plaintiff's brief at 24. See, also, amicus brief
of the Tip of the Mitt Watershed Council at 18; amicus
brief of the Michigan Senate Democratic Caucus at 2; amicus
brief of the Michigan Land Use Institute at 10; and amici
brief of the Michigan Departments of Environmental Quality
and Natural Resources at 11.
Defendants argue that the
status quo gives the littoral owner “exclusive use of the
beachfront to the water’s edge as it exists from time to
time.” Defendants’ brief at 13. See, also, amici brief of
the Michigan Chamber of Commerce, National Federation of
Independent Business Legal Foundation, Michigan Bankers
Association, and Michigan Hotel, Motel & Resort Association
at 11 (“The relevant Michigan authorities thus compel the
conclusion that the public trust applies only to submerged
lands when they are actually submerged”); amici brief of
the Save our Shoreline and the Great Lakes Coalition, Inc
at 9 (“[t]hat the water’s edge was the boundary between
4
evidence that the status quo has not reasonably balanced
the interests of property owners and the public in Michigan
for more than a century and a half; and (4) there is no
evidence that the present dispute is anything other than an
isolated and aberrational dispute, not one upon which to
predicate
the
reversal
of
a
century-and-a-half-old
conception of private property rights.
This
maintaining
Court
the
has
recognized
security
of
the
importance
private
of
property
by
“declar[ing] that stare decisis is to be strictly observed
where
past
decisions
establish
induce extensive reliance.”
‘rules
of
property’
that
Bott v Natural Resources Comm,
415 Mich 45, 77-78; 327 NW2d 838 (1982).
In Bott, we noted
that “[j]udicial ‘rules of property’ create value, and the
passage of time induces a belief in their stability that
generates commitments of human energy and capital.”
78.
Id. at
Therefore, such rules should be closely respected and
overturned only for “the very best of reasons.”
See, e.g.,
Dolby v State Hwy Comm'r, 283 Mich 609, 615; 278 NW 694
public and [littoral] ownership was first suggested in [La
Plaisance]”); amici brief of the legislators at 4 (arguing
that numerous Michigan cases establish that littoral owners
“have title to their property to the water’s edge, free of
any public trust interest in the submerged lands of the
Great Lakes”); and amicus brief of the Defenders of
Property Rights at 12 (noting that in the past sixty-four
years, this Court has rejected any attempt to expand public
rights to areas landward of the water’s edge).
5
(1938);
Lewis
v
Sheldon,
103
Mich
102,
103;
61
NW
269
(1894).
The public’s right to use property abutting the Great
Lakes
under
been
limited
the
public
to
trust
“submerged
doctrine
lands,”
has
traditionally
i.e.,
those
covered by the Great Lakes, including their wet sands.
lands
The
“water’s edge” is that point at which wet sands give way to
dry sands, thus marking the limit of the public’s rights
under the public trust doctrine.
This has been the rule in
our state since this Court’s decision in Hilt v Weber, 252
Mich 198; 233 NW 159 (1930), a case that for seventy-five
years has defined the limits of the public’s rights of use
of littoral property.4
period
immediately
Indeed, except for the seven-year
preceding
Hilt,
this
water’s
edge
principle is consistent with Michigan case law dating back
over
160
years
and
probably
4
even
earlier.
Lakefront
As noted by the majority, “[o]ur case law has not
always
precisely
distinguished”
between
the
terms
“littoral” and “riparian.”
Ante at 1 n 1.
The former
applies to oceans, seas, the Great Lakes, and their coasts,
while the latter applies to rivers and streams.
Black’s
Law Dictionary (7th ed).
Unfortunately, the misuse of
these terms appears to at times have led this Court to
misapply aspects of the public trust doctrine as they
relate to rivers and streams as if those aspects also
related to the Great Lakes. See, e.g., Peterman v Dep’t of
Natural Resources, 446 Mich 177, 195; 521 NW2d 499 (1994).
I will use the term “littoral” when discussing property
abutting the Great Lakes.
6
property
owners,
reliance
on
businesses,5
including
present
rules
have
invested
the
relationship
concerning
between the public and lakefront property owners.
reliance
on
longstanding
rules
should
have
in
This
given
the
majority considerable pause before it altered the status
quo and redefined the public trust doctrine.
This
settled
is
rules
not
of
the
first
property
time
on
the
this
Great
Court
has
Lakes,
upset
but
the
lessons of the first time do not seem to have been welllearned by the majority.
Before the 1920s, property owners
believed that their title extended to the water’s edge.
Steinberg, God’s terminus: Boundaries, nature, and property
on the Michigan shore, 37 Am J Legal Hist 65, 72 (1993).
However,
in
the
Kavanaugh
cases,6
this
Court
abruptly
5
In particular, the consequences of the majority’s new
rules are uncertain for those in the tourism industry in
Michigan who have invested in reliance on the rule set
forth in Hilt.
The majority, in using the “ordinary high
water mark” as “defined” under Wisconsin law, has opened to
public use unsubmerged lands up to a wholly unspecified
point landward of the water and this change would seem to
have implications for the ability of at least some Great
Lakes tourists to enjoy the type of tranquil retreat
offered
by
private
beaches
within
Michigan.
See,
generally, the amici brief of the Michigan Chamber of
Commerce, National Federation of Independent Business Legal
Foundation, Michigan Bankers Association, and Michigan
Hotel, Motel & Resort Association.
6
Kavanaugh v Rabior, 222 Mich 68; 192 NW 623 (1923),
and Kavanaugh v Baird, 241 Mich 240; 217 NW 2 (1928).
7
overruled eighty years of then-existing case law and held
that a littoral owner’s title extended only to the “meander
line,” a survey line used by the federal government to
determine the amount of property available for sale in the
Michigan Territory.7
time
that
this
While this Court recognized at the
decision
was
“against
the
overwhelming
weight of authority,”8 unlike the majority’s decision today,
it was at least arguably grounded in dictum from a prior
Michigan
decision.9
established
rule
Nevertheless,
of
property
by
deviating
rights
in
from
favor
an
of
establishing a boundary at an imaginary line that property
owners could not easily identify, the Kavanaugh cases threw
Michigan’s lakeshores into disarray.
For example, renters
of property between the meander line and the water’s edge
withheld their rent and in fact were advised to do so by
the director of the Department of Conservation.
78.
Id. at 77-
Further, littoral owners found that third parties were
building
on
property
between
7
meander
line
and
the
Hilt, supra at 204-205.
8
the
Baird, supra at 252.
9
In Ainsworth v Munoskong Hunting & Fishing Club, 159
Mich 61, 64; 123 NW 802 (1909), we stated that “[littoral]
owners along the Great Lakes own only to the meander line
. . . .”
Later, however, in Hilt, supra at 207, we noted
that in Ainsworth, the meander line and water’s edge were
the same on the bay in question.
8
water’s edge, thus effectively blocking their access to the
lake.
Other littoral owners were forced to hire surveyors
in order to determine with any certainty what property they
actually owned.
The chaos caused by the departure from the
traditional rule in the Kavanaugh cases was so dramatic
that just seven years later this Court corrected its error
and reestablished the rules of property as they had existed
on the Great Lakes for at least the prior eighty years.
Hilt, supra at 227.
The majority today revamps the public trust doctrine
on the basis of Wisconsin law-- or at least on the portions
of it that the majority finds to their liking-- and, in so
doing, announces new rules of law regarding lands subject
to the public trust doctrine.
Because I believe that the
public’s rights under the doctrine have always been limited
to
the
use
of
submerged
lands,
which
includes
the
wet
sands, I do not believe that the Court of Appeals erred in
holding that the public may not walk on unsubmerged lands.
However, I do believe the Court of Appeals erred in holding
that the state’s title begins at the “ordinary high water
mark.”
Therefore, I would affirm in part and reverse in
part the decision of the Court of Appeals and remand to the
trial
court
to
apply
the
principles
opinion.
9
set
forth
in
this
I.
MISUNDERSTANDING
THE
“ORDINARY HIGH WATER MARK”
The majority concludes that the “ordinary high water
mark”
is
the
doctrine.10
landward
While
the
boundary
of
the
majority
does
public
not
trust
necessarily
disagree that the water’s edge serves as the boundary of
the littoral owner’s title, it would expand the public’s
legal right to use property up to the utterly indiscernible
“‘point on the bank or shore up to which the presence and
action of the water is so continuous as to leave a distinct
mark
either
vegetation,
by
or
erosion,
other
destruction
easily
recognized
Ante at 27 (citation omitted).
of
terrestrial
characteristic.’”
The majority further adds
that this newly described “ordinary high water mark,” one
never before seen in Michigan, includes unsubmerged lands
that are the product of “fluctuation” in the level of the
lake that “results in temporary exposure of land that may
10
The
majority
also
creates
a
new
rhetorical
formulation for the test determining whether a use is
permitted by the public trust doctrine, although I fail to
see any significant distinction between a use that is
“inherent in the exercise of traditionally protected public
rights,” ante at 32, and a use that bears “a real and
substantial relation to a paramount trust purpose.”
Hilt,
supra at 225. I agree with the majority that beach-walking
is a permissible public trust use.
Walking in submerged
lands is an activity that bears a “necessary and
substantial relation” to other water-borne recreational
activities protected by the doctrine, e.g., boating,
swimming, and fishing.
10
then remain exposed above where water currently lies.”
Id.
I disagree.
The majority replaces a workable and easily
identifiable
boundary
with
one
whose
exact
location
is
anyone’s guess and it has done so on the basis of the
Wisconsin public trust doctrine, or at least that part of
Wisconsin’s
rule.11
doctrine
that
supports
the
majority’s
new
Instead, I believe that the public’s entitlement to
use property under the public trust doctrine of Michigan is
limited to submerged lands, i.e., the Great Lakes and their
wet sands.
The majority’s creation of this new rule is rooted in
its
misunderstanding
of
the
importance
of
the
“ordinary
high water mark” for the purpose of defining the boundary
of
the
public
trust
on
the
nontidal
Great
Lakes.
The
public trust doctrine in the United States is derived from
the English common law, which extended to tidal land below
11
Curiously, the majority adopts Wisconsin law in this
area, despite the fact that Wisconsin’s 820 miles of Great
Lakes shoreline is dwarfed by the 3,288 miles of shoreline
in this state.
<http://www.michigan.gov/deq/0,1607,7-1353313_3677-15959--,00.html>
(accessed
June
24,
2005).
Nonetheless, the critical point is not whether it is the
law of a state with a longer or shorter shoreline than
Michigan's that has been adopted by the majority. Rather,
it is why any new law has been adopted when current law has
proven workable for many decades of our state-- clearly
setting forth the rights of the public and the property
owner, minimizing litigation, and simultaneously protecting
private property rights while allowing reasonable public
use of the Great Lakes, including beach-walking.
11
the ordinary high water mark.
Borax Consolidated, Ltd v
Los Angeles, 296 US 10, 23; 56 S Ct 23; 80 L Ed 9 (1935).
The rights protected by the English common law included use
of
tidal
lands
up
to
the
ordinary
high
water
mark
for
“navigation and commerce . . . and for the purposes of
fishing . . . .”
Shively v Bowlby, 152 US 1, 11; 14 S Ct
548; 38 L Ed 331 (1894).
Following the American Revolution, the title held for
the public trust by the King passed to the states, subject
only
to
those
rights
federal government.
surrendered
Id. at 14-15.
by
the
states
to
the
While each state is
required to protect the uses permitted by the public trust
doctrine, Illinois Central R Co v Illinois, 146 US 387,
453; 13 S Ct 110; 36 L Ed 1018 (1892) (Illinois Central I),
the scope of property subject to that trust is governed by
“the local laws of the several States . . . .”12
12
Shively,
The majority also notes that in Illinois Central R
Co v Chicago, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622
(1900) (Illinois Central II), the United States Supreme
Court found that “a grant of lands by the State does not
pass title to submerged lands below high-water mark
. . . .” However, as stated in Shively, the scope of lands
subject to the public trust is determined by state law. In
determining the scope of the trust doctrine in Illinois
Central II, the United States Supreme Court looked to “the
law of the State of Illinois, as laid down by the Supreme
Court . . . .”
Id. at 659.
In finding that Illinois’s
title went to the high water mark, the point emphasized by
the majority, the United States Supreme Court cited
12
supra at 40.
Thus, it cannot be said that the American
public trust doctrine uniformly extends to the “ordinary
high water mark.”
thirteen
colonies
Id.
While a majority of the original
followed
the
English
common-law
rule,
Shively noted that four of the original colonies held that
the littoral owner holds title to the “low water mark,”
subject only to the public’s right to use the water for
navigation and fishing when it is above that point.
18-25.13
Id. at
For example, in Commonwealth v Alger, 61 Mass 53,
70 (1851), the Supreme Court of Massachusetts held, under
Illinois case law directly.
Id. at 660, citing Seaman v
Smith, 24 Ill 521 (1860), People ex rel Attorney General v
Kirk, 162 Ill 138, 146; 45 NE 830 (1896), and Revell v
People, 177 Ill 468, 479; 52 NE 1052 (1898).
Because
Illinois Central II applied Illinois law, its holding
regarding the scope of lands subject to the public trust
doctrine is not binding on this Court. Rather, the common
law as developed in this state determines the scope of
lands subject to the doctrine.
13
Those states are: Massachusetts, Shively, supra at
18-19 (littoral owner takes title in fee to the low water
mark “subject to the public rights of navigation and
fishery”); New Hampshire, id. at 20 (“a right in the shore
has been recognized to belong to the owner of the adjoining
upland”); Pennsylvania, id. at 23 (“the owner of lands
bounded by navigable water has the title in the soil
between high and low water mark, subject to the public
right of navigation”); and Virginia, id. at 24-25 (“the
owner of land bounded by tide waters has the title to
ordinary low water mark, and the right to build wharves,
provided they do not obstruct navigation”).
13
the “local laws” of that state,14 a littoral owner’s title
extends
to
the
low
water
mark.
However,
the
littoral
owner’s title is limited because “whilst [lands above the
low water mark] are covered with the sea, all other persons
have the right to use them for the ordinary purposes of
navigation.”
Id. at 74-75.
In other words, the public’s
rights under the public trust doctrine are limited to the
use of property that is currently submerged.
Thus, the
public trust doctrine as defined in the “low water mark”
colonies restricts the public’s right of use to either land
below the low water mark or to such land as is currently
covered by the waters of the ocean.15
Likewise, the “local laws” of Michigan did not adopt
the English definition of public trust lands, but rather
restricted
the
public’s
rights
under
doctrine to the use of submerged lands.
the
public
trust
In La Plaisance
14
As noted by the majority, ante at 40 n 31,
Massachusetts adopted the low water mark by colonial
ordinance. Alger, supra at 66. Thus, while obviously not
directly applicable to the public trust doctrine in
Michigan, Alger does make clear that the “ordinary high
water mark” has not been as universally accepted as the
majority apparently believes.
15
In light of the majority’s reliance on Wisconsin
law, it is interesting to note that the Wisconsin Supreme
Court similarly held that the public’s right to use
submerged lands up to the high water mark is only
applicable when the waters actually extend to such mark.
Doemel v Jantz, 180 Wis 225, 236; 193 NW 393 (1923).
14
Bay Harbor Co v Monroe City Council, Walker Chancery Rep
155 (1843), the issue of public ownership of the Great
Lakes was addressed for the first time by a Michigan court.
In
La
Plaisance,
the
Court
of
Chancery
addressed
state’s right to improve navigation in Lake Erie.
the
The
Legislature had authorized the city of Monroe to build a
canal connecting the River Raisin to the lake.
The harbor
company brought suit to enjoin the project, claiming that
the canal would divert so much water from the river that
its downriver warehouses would be rendered inaccessible by
boat.
However, the court held that the harbor company did
not have a right to the flow of water in the river in its
natural bed because “[t]he public owns the bed of this
class of rivers, and is not limited in its right to an
easement, or right of way only.”
Id. at 168.
The court
also noted that “with regard to our large lakes, or such
parts of them as lie within the limits of the state[,]
[t]he
proprietor
of
the
adjacent
shore
has
no
property
whatever in the land covered by the water of the lake.”
Id. (emphasis added).
before
La
Plaisance,
Moreover, it should be noted that
and
before
statehood,
Michigan
was
part of the Northwest Territory, which was ceded to the
United States by Virginia in 1784.
15
Under Virginia law, a
littoral owner held title to soil in tidewaters to the low
water mark.
Shively, supra at 24-25.
The understanding that the public’s interest under the
public trust doctrine is limited to the submerged lands of
the Great Lakes was also expressed by Justice Champlin in
his concurring opinion in Lincoln v Davis, 53 Mich 375; 19
NW 103 (1884).
In Lincoln, a fisherman had placed stakes
in Thunder Bay, off an island, in order to set some fishing
nets.
The island’s owner removed the stakes, claiming that
he had the exclusive right to fish in the waters off his
island.
The Lincoln majority, while not discussing the
boundary
between
littoral
property
and
public
trust
property, held that the owner had no right to interfere
with the fisherman’s stakes.
Justice Champlin noted that
“when [Michigan] was admitted into the Union this political
jurisdiction devolved upon the State, and the title to the
soil under the navigable waters of the Great Lakes became
vested in the State as sovereign to the same extent and for
the same reasons that the title of the bed of the sea was
vested
in
the
king.”
Id.
at
384
(emphasis
added).
However, the state’s title only extends to the “low-water
mark.”
Id.
at
384-385
(emphasis
added).
In
fact,
according to Justice Champlin, “The paramount rights of the
public to be preserved are those of navigation and fishing,
16
and this is best accomplished by limiting the grants of
lands
bordering
mark.”
on
the
Great
Lakes
to
[the]
low-water
Id. at 385-386.
The United States Supreme Court defined the scope of
the public trust doctrine as applied to the submerged lands
of the Great Lakes in Illinois Central I, supra at 437.
In
Illinois Central I, the Illinois legislature had granted
the railroad title to one thousand acres of submerged land
on
Lake
Michigan.
Four
years
later,
the
Illinois
legislature repealed this act and sought to quiet title to
submerged lands.
The Supreme Court held that “the State
holds the title to the lands under the navigable waters of
Lake Michigan . . . and that title necessarily carries with
it control over the waters above them whenever the lands
are
subjected
to
use.”
Id.
at
452
(emphasis
added).
Because the state’s public-trust title is a function of its
sovereignty, the lands covered by the doctrine cannot be
alienated, except when such alienation promotes the public
use of them and the public use of the lands and waters
remaining is not harmed.
Id. at 452-453.
Just four years later, in People v Silberwood, 110
Mich 103, 107; 67 NW 1087 (1896), this Court seized upon
the
Illinois
Central
I
explanation
of
the
public
trust
doctrine to support its holding that the boundary between
17
public trust lands and littoral lands is the low water
mark.
In
Silberwood,
the
defendant
was
convicted
cutting submarine vegetation on Lake Erie.
of
The defendant
claimed that the owners of land lying adjacent to Lake
Erie, including his employer who ordered removal of the
vegetation, owned the land to the center of that Great
Lake, subject to the rights of navigation.
The Court,
quoting La Plaisance, held that a littoral owner does not
have any title in land covered by the Great Lakes.
106.
Id. at
The Court then noted that the Illinois Central I
decision
is in harmony with the doctrine laid down in the
early case of La Plaisance Bay Harbor Co. v.
Council of City of Monroe, which I do not think
has ever been overruled in this State so far as
it affects the rights of shore owners on the
borders of the Great Lakes. This doctrine, too,
is in harmony with the decisions in all of the
States bordering on these great seas.
[Id. at
108-109.]
Further,
Lakes
the
states
Court
were
noted
in
that
line
decisions
with
both
La
of
other
Great
Plaisance
Illinois Central I:
The decisions in New York (Champlain, etc.,
R. Co. v. Valentine, 19 Barb. 484 [NY Sup
(1853)]), in Pennsylvania (Fulmer v. Williams,
122 Pa. St. 191 [15 A 726 (1888)]), and in Ohio
(Sloan v. Biemiller, 34 Ohio St. 492 [1878]), all
hold that the fee of the [littoral] owner ceases
at the low-water mark. [Id. at 107.]
18
and
This Court reaffirmed the principle that the public
trust doctrine applies only to submerged lands in People v
Warner, 116 Mich 228; 74 NW 705 (1898).
was
ownership
of
submerged
under
ownership
of
the
adjacent island.
a
marshy
island
Saginaw
Bay.
marshy
island
that
The
as
At issue in Warner
an
was
previously
defendant
accretion
claimed
to
his
In placing the boundary at the water’s
edge, the Court stated:
The depth of water upon submerged land is
not important in determining the ownership. If
the absence of tides upon the Lakes, or their
trifling effect if they can be said to exist,
practically makes high and low water mark
identical
for
the
purpose
of
determining
boundaries (a point we do not pass upon), the
limit of private ownership is thereby marked. The
adjoining proprietor’s fee stops there, and there
that of the State begins, whether the water be
deep or shallow, and although it be grown up to
aquatic plants, and although it be unfit for
navigation.
The right of navigation is not the
only
interest
that
the
public,
as
contradistinguished from the State, has in these
waters. It has also the right to pursue and take
fish and wild fowl, which abound in such places;
and the act cited has attempted to extend this
right over the lands belonging to the State
adjoining that portion of the water known to be
adapted to their sustenance and increase.
[Id.
[16]
at 239 (emphasis added).]
16
The majority claims that when read “in context,”
Warner does not recognize “a single boundary between the
riparian owner’s title and state control . . . .” Ante at
22 n 16.
Specifically, the “context” relied upon by the
majority is Warner’s distinction between the state’s and
the public’s interests in submerged lands. However, there
is no context under which Warner can reasonably be read to
19
The Court found that a connection between the marshy island
and the defendant’s island, which existed during times of
low
water,
raised
an
issue
of
material
fact.
If
the
connection was evidence that land washed up against the
defendant’s island and that eventually caused the marshy
island to rise from the water, then the defendant held
title to such land by accretion.
However, if the island
arose from the water first and only then began to extend
towards the defendant’s island, then title belonged to the
state.
In
any
case,
the
Court
held
that
summary
disposition was inappropriate and remanded the case for a
new trial.
support the majority’s new rule of law. The passage cited
by the majority comes directly after this Court’s holding
that the state holds title to all submerged lands,
regardless of navigability.
In justifying the state’s
title to lands “unfit for navigation,” Warner notes that
the public has interests in those submerged lands above and
beyond a navigational interest, i.e., “the right to pursue
and take fish and wild fowl . . . .”
Further, in an
opinion replete with novel concepts of law, perhaps the
most creative statement by the majority is that somehow the
phrase “[t]he adjoining proprietor’s fee stops there [i.e.,
where the water is], and there that of the State begins”
does not represent a single boundary. If the state’s title
begins at the point where the adjoining proprietor’s title
ends, there can only be one boundary and, therefore, there
cannot be an overlapping of titles as suggested by the
majority.
Accordingly, and despite the majority’s claims
to the contrary, this Court has explicitly “enshrined” a
solitary boundary between littoral lands and public trust
lands for at least 107 years.
20
One
public
of
the
trust
most
doctrine
thorough
was
opinions
Justice
addressing
Hooker’s
the
concurring
opinion in State v Lake St Clair Fishing & Shooting Club,
127 Mich 580; 87 NW 117 (1901).17
Justice Hooker began his
analysis by noting that the “title that Michigan took when
it was admitted to the Union in 1836 is not limited to
water sufficiently deep to float craft, but extends to the
point where it joins the ground of the [littoral] owner,
‘whether the water be deep or shallow, and although it be
grown up to aquatic plants and unfit for navigation.’”
at 586, quoting Warner, supra at 239.
Id.
Likewise, the title
of the abutting littoral owner extends to the shoreline.
Fishing & Shooting Club, supra at 587.
Thus, “when the
water in the lakes stands at low-water mark, . . . the
title [is] in the State, and all land between low-water
mark
and
the
meander
proprietor . . . .”
line
belongs
to
the
abutting
Id. at 590 (emphasis added).
The common-law limitation of the scope of the public
trust doctrine was reaffirmed by this Court in Hilt. In
overruling the short-lived Kavanaugh cases, we held that
“the purchaser from the government of public land on the
17
Justice Hooker’s analysis of the public trust
doctrine was subsequently cited with approval by the
unanimous opinion of this Court in State v Venice of
America Land Co, 160 Mich 680, 702; 125 NW 770 (1910).
21
Great Lakes took title to the water’s edge.”
at 206.
Hilt, supra
We also noted that the waters of our Great Lakes
commonly change the landscape surrounding them, by erosion
or
deposits
made
by
imperceptible manner.
this
constant
change,
the
water,
Id. at 219.
the
title
in
a
gradual
and
In order to account for
of
a
littoral
owner
“follows the shore line under what has been graphically
called ‘a movable freehold.’”
Id. (citation omitted).
The
title to land above the water’s edge is “‘independent of
the law governing the title in the soil covered by the
water.’”
Id., quoting Shively, supra at 35.18
To summarize, under the common law as it has developed
in Michigan, when the water is at a low point, the state
holds title to the submerged land, including the wet sands,
while title to unsubmerged land is in the littoral owner.
Warner, supra; Fishing & Shooting Club, supra.
As the
water level rises, the public gains the right to use the
entire surface of the lake up to the water’s edge-- the
point at which wet sands give way to dry sands-- for public
18
Hilt also noted that to hold otherwise would
effectively cut the littoral owner off from the water,
thereby destroying the very characteristic that defines
property as "littoral"-- its contact with the water. Hilt,
supra at 219.
22
trust purposes.
Hilt, supra; Warner, supra.
Likewise, the
littoral owner’s title follows the rise and fall of the
waters.19
Id.
Accordingly, the boundary of the littoral
owner’s title is the most landward of either the “low water
mark” or the current location of the water itself.20
The
19
The majority misstates my position as “granting
littoral landowners all property down to where unsubmerged
land ends, which [I] locate[] at the water’s edge,
regardless of the terms of landowners’ deeds.” Ante at 3839.
There is no basis for this statement.
The
characteristic that defines property as “littoral” is its
contact with the water.
Hilt, supra at 219.
In other
words, a property owner whose deed does not extend to the
water’s edge is not a littoral owner and, therefore, would
have no more rights in unsubmerged property than any other
member of the public. Obviously, a property owner is only
a littoral owner if the deed gives title to the water’s
edge, however the “water’s edge” may be described.
For
example, in the instant case, defendants’ deed states that
the “meander line of Lake Huron” forms part of the boundary
of their property.
As we held in Farabaugh v Rhode, 305
Mich 234, 242; 9 NW2d 562 (1943), “the meander line of Lake
Michigan is a line of description and not one of boundary
and that one owning to such meander line owns to the
water’s edge subject to accretion and reliction unless a
contrary intention is expressed in the conveyance.” There
is no evidence of a contrary intention in this case and,
therefore, defendants hold title to the water’s edge.
20
The majority notes that this Court has identified
“some ambiguity regarding whether the high or low water
mark serves as the boundary of the public trust.” Ante at
22, citing People, ex rel Director of Conservation v
Broedell, 365 Mich 201, 205-206; 112 NW2d 517 (1961).
Broedell cited two cases with “language seemingly favorable
to the high-water-mark theory.” Id. at 206. One of those
cases, Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926),
defined the public trust doctrine as it applies to rivers.
The other case, Venice of America Land Co, supra at 702,
discussed the location of a certain island at the time of
23
state’s public trust title, then, “begins [where the water
is], whether the water be deep or shallow . . . .”
Warner,
supra at 239.21
In
rejecting
opinion
virtually
instead
simply
adopted
the
this
understanding,
ignores
announces
ordinary
162
that
high
years
the
of
case
“Michigan’s
water
mark
boundary of the public trust” doctrine.
majority’s
as
law,
and
courts
the
have
landward
Ante at 21.
Thus,
according to the majority, unsubmerged land up to the “high
water mark” remains subject to the trust.
To support its
assertion, the majority cites with approval this Court’s
holding in Peterman v Dep’t of Natural Resources, 446 Mich
177,
198-199;
521
NW2d
499
(1994).
In
doing
so,
the
statehood.
If the island was completely submerged at
statehood and only afterwards arose out of Lake St. Clair,
then the island belonged to the state. See, e.g., Warner,
supra. The Court noted that, during periods of high water,
the island at issue was completely submerged. According to
the Court, Lake St. Clair experienced one such period of
high water in 1837-1838. Therefore, because the island was
submerged land at the time of statehood and only arose out
of the water afterwards, title to such property was in the
state.
Id.
Further, Venice of America Land Co expressly
adopted Justice Hooker’s concurring opinion from Fishing &
Shooting Club.
As argued earlier, Justice Hooker found
that the boundary between a littoral owner’s property and
property held by the state in trust is the low water mark,
at least at times of low water.
21
The majority has interpreted the “water’s edge”
principle as creating a “universal line along the Great
Lakes . . . .” Ante at 41. However, the water’s edge is
not a “universal line,” but rather a dynamic boundary that
moves as the waters of the Great Lakes move.
24
majority fails to acknowledge that Peterman did not address
the public’s right to use property under the public trust
doctrine at all,22 but rather addressed the state’s right to
improve navigation under the navigational servitude.23
began
our
“‘title
under
analysis
of
what
freehold.”’”
the
in
Peterman
[littoral]
has
Id.
been
at
owner
by
follows
graphically
192,
affirming
quoting
the
called
Hilt,
We
that
shore
"a
supra
the
line
moveable
at
219.
However, we also found that such title is not absolute.
Rather,
the
state
retains
a
navigational
servitude
on
unsubmerged property landward of the water’s edge that may
again become submerged during periods of high water.24
In
order to accommodate both the rights of the littoral owner
22
Even if Peterman did apply in the public trust
context-- which it does not-- an examination of its holding
indicates a definition of the public trust doctrine far
more in line with “low water mark” cases such as Alger than
with the “high water mark” cases cited by the majority.
23
The majority argues that this decision “relied not
simply on a ‘navigational servitude’ unique to that case
but rooted that ‘navigational servitude’ in the public
trust doctrine.”
Ante at 21 n 15.
However, Peterman
specifically states that “plaintiffs' [littoral] rights are
subject to the navigational servitude retained by the State
of Michigan.”
Peterman, supra at 193-194.
Peterman does
not state that littoral rights are subordinate to the right
to fish and hunt or the right to walk. Rather, the Court
limited its holding to the state’s right to improve
navigation.
24
The federal government also retains a navigational
servitude on the Great Lakes and the lands beneath them.
25
and the potential use of unsubmerged land for navigation,
we determined that the littoral owner’s title is “a limited
title . . . that is subject to the power of the state to
improve
navigation.”
Peterman,
supra
at
195
(emphasis
added).
That is, the state has the right to regulate this
unsubmerged land to ensure that the littoral owner does not
interfere with the public’s future right to use the land
for navigational purposes when it again becomes covered by
the waters of the Great Lakes.
Also, the state has the
right
land
to
action
take
this
inconsistent
unsubmerged
with
the
or
owner’s
otherwise
littoral
take
rights
without giving due compensation to the littoral owner when
it is necessary to make navigational improvements or when
the taking possesses an “essential nexus” to navigation.
Id. at 201.
However, just as in Alger, the public may only
use the land in question for navigational purposes25 when
the land is covered by the waters of the Great Lakes.
25
We have recognized fishing as an incident of the
navigational
servitude
in
inland
rivers
and
lakes.
Collins, supra at 48-49.
In Collins, we noted that the
right to fish was limited to the stream itself and that “in
exercising this right people cannot go upon the uplands of
riparian owners in order to gain access to the water.
If
they do that they are guilty of trespass.” Id. at 49. See
also Bott, supra at 64-65, in which the servitude was
further limited.
26
Because the majority misapprehends the nature of this
limited title, it has misconstrued the importance of the
“ordinary high water mark” as it is described in Peterman.
While recognizing the state’s right to improve navigation,
we
also
sought
to
limit
the
property
adversely affected by such improvements.
that
could
be
To determine the
scope of this limitation, we examined former MCL 281.952,
which was part of the Inland Lakes and Streams Act, as well
as cases defining the scope of the public trust doctrine on
rivers, including Grand Rapids Booming Co v Jarvis, 30 Mich
308,
318-321
(1874)
(holding
that
the
public
right
of
navigation was confined to the stream itself and that its
boundary was the line of ordinary high water), and Hall v
Alford, 114 Mich 165, 167-168; 72 NW 137 (1897) (noting
that land alongside a river above the high water line could
not be taken without just compensation and due process).
On
the
basis
of
our
review
of
these
authorities,
we
determined that “‘the limit of the public’s right is the
ordinary high water mark of the river.[26] This means that
26
We adopted the definition of “ordinary high water
mark” from the Inland Lakes and Streams Act, former MCL
281.952(h).
Peterman, supra at 198 n 29.
That statute
defined the mark as,
27
the
ownership
of
fast
land[27]
is
unqualified
and
not
burdened with [the state’s right to improve navigation].’”
Peterman, supra at 198 (citation omitted).
Applying this
rule of rivers to the Great Lakes, we held that destruction
of the littoral owner’s property above the “ordinary high
water
mark”
was
“an
unconstitutional
taking
without due process and just compensation.”28
of
property
Id. at 200.
the line between upland and bottomland which
persists through successive changes in water
levels, below which the presence and action of
the water is so common or recurrent that the
character of the land is marked distinctly from
the upland and is apparent in the soil itself,
the configuration of the surface of the soil, and
the vegetation.
27
“Fast land” is “property that
water mark of’ the stream, river, or
that abuts the property.”
Peterman,
quoting 26 Am Jur 2d, Eminent Domain, §
is ‘above the highother body of water
supra at 181 n 4,
192, p 873.
28
The plaintiffs’ recovery in Peterman was not limited
to compensation for the damage done to the fast lands. We
also concluded:
While
generally
the
navigational
trust
permits the state to improve waterways without
compensating for nonfast lands, the trust does
not grant blanket authority to destroy private
property-- the loss of the property must be
necessary or possess an essential nexus to the
navigational improvement in question.
In the
instant case, no essential nexus existed between
the construction of the boat launch and the utter
destruction of plaintiffs’ beach.
The taking of
the property served no public interest because
the ramp could have been built without destroying
plaintiffs’ property.
Thus, we affirm the trial
28
Thus, contrary to the claims of the majority, Peterman
did not alter the rule of Warner and Hilt that the public’s
right to use property under the public trust doctrine is
limited to submerged lands.
Rather, the “ordinary high
water mark” is simply the outside edge of property that may
either
be
interests
regulated
at
times
to
of
preserve
high
future
water
or
navigational
taken
compensation for navigational improvements.
without
Id. at 202.
The majority fails to recognize that this Court’s holding
applied
only
navigational
to
the
“public’s
servitude.
As
a
rights”
result,
under
the
the
majority
unwarrantedly expands the scope of our holding in Peterman
to
create
new
rights
under
the
public
trust
doctrine,
rights that were never contemplated in that case.
II.
MISDEFINITION
OF
LANDS
WITHIN THE
PUBLIC TRUST DOCTRINE.
Even if the majority were correct in its understanding
of the “ordinary high water mark,” which for the reasons
set forth I do not believe it to be, its definition of
lands
encompassed
by
the
public
trust
doctrine
is
inconsistent with both the common-law scope of the public
trust doctrine and the realities of the Great Lakes.
court's award of damages for the loss of
plaintiffs’ property [i.e., the property below
the “ordinary high water mark”].
[Id. at 201202.]
29
The
majority does not apply Michigan law, but instead, without
analysis
or
definition
explanation,
of
the
summarily
“ordinary
high
adopts
water
Wisconsin’s
mark,”
which
derives from a case involving a Wisconsin river.
it
Further,
while the majority admits that the “ordinary high water
mark” is a term used to define the scope of the public
trust doctrine in tidal waters, it fails to account for the
fact that the Great Lakes have no true scientific low and
high water marks as exist on the seashore.
Even given the
majority’s attempt to graft this tidal-based term upon the
nontidal
Great
Lakes,
its
definition
resemblance to the common-law standard.
definition
of
“ordinary
high
water
bears
little
In creating a new
mark”
based
on
the
portions of the common law of Wisconsin it finds amenable,
the
majority
owners
or
fails
the
to
public
provide
with
either
the
lakefront
slightest
property
guidance
in
understanding the lands in which the new rights granted to
the public may be exercised.
The majority defines the “ordinary high water mark” as
“‘the point on the bank or shore up to which the presence
and action of the water is so continuous as to leave a
distinct mark either by erosion, destruction of terrestrial
30
vegetation, or other easily recognized characteristic.’”29
Ante at 27, quoting Diana Shooting Club v Husting, 156 Wis
261, 272; 145 NW 816 (1914).
from
a
State
of
Wisconsin
This definition is derived
case
involving
that
state’s
public trust doctrine as it applies to an inland river.
Why this court now finds it necessary to abandon Michigan
common law and replace it with Wisconsin’s common law, or
at least those portions the majority finds persuasive, is
not explained.
As the United States Supreme Court noted in
Shively, supra at 26, the determination of what lands fall
within the scope of the public trust doctrine is different
in each state.
After reviewing the laws of several states,
that Court remarked
that each State has dealt with the lands under
the tide waters within its borders according to
its own views of justice and policy, reserving
its own control over such lands, or granting
29
The majority concludes that the boundary of the
public trust doctrine is the “ordinary high water mark”
because the “lake has not permanently receded from that
point and may yet again assert its influence up to that
point.”
Ante at 27.
Does the majority mean that the
public has access to a littoral owner’s property that,
although currently dry, has been wet at some point in the
past and may again be wet some day in the future? If so,
what is the relevant time frame to determine if the water
has permanently receded or not? Is it a day? Or a month?
Or a year? Or a decade? Or since statehood? Or since the
retreat of the glaciers 14,000 years ago?
The majority
does not say. Further, how is a member of the public or a
property owner to ascertain whether lands in question “may
yet again” become submerged? Again, the majority does not
say.
31
rights therein to individuals or corporations,
whether owners of the adjoining upland or not, as
it considered for the best interests of the
public.
Great caution, therefore, is necessary
in applying precedents in one State to cases
arising in another. [Id. (emphasis added).]
The majority has failed to pay heed to the United
States Supreme Court’s advice in this matter.
has
also
failed
to
examine
the
Wisconsin
The majority
public
trust
doctrine in order to determine whether the policy reasons
underlying
the
majority’s
adoption
of
the
Wisconsin
understanding of the “ordinary high water mark” is even
compatible
with
Michigan’s
. . . .”
Id.
Rather
“views
than
of
conduct
justice
such
a
and
policy
review,
the
majority concludes that this definition is apt because it
“has
served
another
Great
Lakes
state
for
some
hundred
years and is in accord with the term’s limited development
in our own state.”
Ante at 29-30.30
However, even a cursory review of the Wisconsin cases
cited by the majority suggests a rule more in line with the
decision of our Court of Appeals-- a decision unanimously
rejected
majority.
by
this
Court--
than
the
rule
favored
by
the
In Diana Shooting Club, a hunter had floated his
30
While the Diana Shooting Club definition has been
used by Wisconsin for nearly one hundred years, the initial
express definition of the water’s edge principle in Warner
predates the Diana Shooting Club rule by sixteen years.
32
boat into an area overgrown by vegetation for the purpose
of shooting wild ducks.
The riparian owner claimed that,
pursuant to its ownership of the soil beneath the river,
the members of its organization had the exclusive right to
hunt
in
those
waters.
The
Wisconsin
Supreme
Court
recognized the riparian owner’s title in the soil beneath
the
river,
“should
be
but
also
free
to
found
all
that
for
the
commerce,
waters
for
themselves
travel,
for
recreation, and also for hunting and fishing, which are now
mainly certain forms of recreation.”
supra at 271.
Diana Shooting Club,
It ultimately held that:
Hunting on navigable waters is lawful when
it is confined strictly to such waters while they
are in a navigable stage, and between the
boundaries of ordinary high water marks. When so
confined it is immaterial what the character of
the stream or water is.
It may be deep or
shallow,
clear
or
covered
with
aquatic
vegetation.
By ordinary highwater mark is meant
the point on the bank or shore up to which the
presence and action of the water is so continuous
as to leave a distinct mark either by erosion,
destruction of terrestrial vegetation, or other
easily recognized characteristic.
[Id. at 272
(emphasis added).]
Thus, unlike the majority, Diana Shooting Club restricted
public trust activity to the waters themselves.
Indeed,
the Wisconsin Supreme Court confirmed this interpretation
in Doemel v Jantz, 180 Wis 225, 236; 193 NW 393 (1923),
noting that:
33
What was said in the Diana Shooting Club
Case on the subject of the rights of a hunter to
pursue his game up to the ordinary high-water
mark, merely affirmed the public right to pursue
the sport of hunting to the ordinary high-water
mark of a navigable river while the waters of the
river actually extended to such mark.[31]
The Wisconsin Supreme Court later suggested that the
Diana Shooting Club’s definition of the ordinary high water
mark also applied to the Great Lakes.
State v Trudeau, 139
Wis 2d 91; 408 NW2d 337 (1987).32
In Trudeau, a littoral
owner
to
along
Lake
Superior
sought
build
condominiums
within an area below the “ordinary high water mark” of Lake
Superior.
The
littoral
owner
argued
that
the
area
in
question was not navigable and, therefore, he was entitled
to
use
the
lake
bed.
The
Wisconsin
Supreme
Court
disagreed, reasoning that the state’s interest extended to
31
Doemel addressed the public trust doctrine as it
applied to inland lakes. Interestingly, while the majority
claims that a case applying the public trust to rivers is
perfectly legitimate to apply in the littoral context, it
concludes that Doemel is inapplicable, presumably because
it applies to an inland lake.
32
The majority observes that its new definition was
also invoked in a footnote by the Wisconsin Supreme Court
in R W Docks & Slips v State, 244 Wis 2d 497, 510 n 2; 628
NW2d
781
(2001)
(citing
Trudeau,
supra,
for
the
definition).
Ante at 28.
However, the R W Docks case
involved a claimed regulatory taking, based on Wisconsin’s
refusal to issue a dredging permit.
The location of the
ordinary high water mark was not at issue and the case did
not involve a question of public access to land within the
public trust. Thus, the majority apparently is basing its
new rule on mere dictum from the decision of another
state's Supreme Court.
34
the “ordinary high water mark” of Lake Superior.
Id. at
103.
In discussing the “ordinary high water mark,” the
court
cited
with
Shooting Club.
approval
the
definition
from
Diana
However, the court’s ultimate disposition
in that case was to remand “for findings concerning those
portions of the site higher than 602 feet [above sea level,
according
to
the
International
Great
Lakes
[ordinary high water mark] of Lake Superior.”
Datum],
the
Id. at 110.
Thus, Trudeau held that the “ordinary high water mark” is
defined
level--
by
the
the
International
very
standard
Great
that
Lakes
has
Datum
been
(“IGLD”)
unanimously
rejected by the justices of this Court.33
To summarize, none of the few Wisconsin cases cited by
the majority addresses the issue of whether the public has
33
The majority, apparently recognizing the vagueness
of its definition of the "ordinary high water mark,"
observes, “the precise location of the ordinary high water
mark at any given site on the shores of our Great Lakes
remains a question of fact.”
Ante at 30.
While the
majority again cites Trudeau as an example of how such a
“question of fact” can be answered, ante at 28 n 20, it
neglects to note that Trudeau adopted the International
Great Lakes Datum (IGLD) definition of ordinary high water
mark.
Trudeau, supra at 110.
However, the majority has
held that the Great Lakes Submerged Lands Act (GLSLA),
which also uses that datum, is not dispositive in defining
the landward boundary of the public trust. Ante at 14-19.
Does the majority mean to suggest that, despite this
Court's holding that the GLSLA is not dispositive, the ILGD
is still relevant in determining the location of the
ordinary high water mark for public trust purposes in this
state? The majority does not say.
35
a
right
“ordinary
to
use
high
currently
water
mark”
unsubmerged
land
for
trust
public
below
the
purposes.
Indeed, the Wisconsin public trust doctrine specifically
limits the public’s use of submerged lands to when those
lands are covered by the waters themselves.
In addition,
to the extent that the majority believes that Trudeau makes
the Diana Shooting Club definition applicable to the Great
Lakes, the majority fails to note that Trudeau adopted the
IGLD definition of the “ordinary high water mark” on the
Great Lakes.
location
of
Trudeau, supra at 110.
the
“ordinary
high
In determining the
water
mark,”
Trudeau
specifically relied on the following evidence:
The DNR's area water management specialist,
Richard Knitter, testified that he determined the
lake's
OHWM
[ordinary
high
water
mark]
approximately one-half mile from the site at a
protected location with a clear erosion line that
was free from excessive wave action.
Knitter
then determined that this site's elevation was
602 feet I.G.L.D.
He transferred the elevation
of the OHWM site to a number of points at the
project site and concluded that approximately
half of the site was below Lake Superior's OHWM.
The developers' surveyor did not determine the
OHWM of the site or Lake Superior. [Id. at 106107.]
The court concluded that “[a]ny part of the site at or
below 602 feet I.G.L.D. is within the OHWM of Lake Superior
and is therefore protected lake-bed upon which building is
prohibited.”
Id. at 109.
The presence of this single,
36
clear definition stands in stark contrast to the vague and
ever-changing, "fact-specific," “ordinary high water mark”
newly promulgated by the majority.
In contrast to the
Wisconsin Supreme Court, this Court expends its energies
explaining why our Great Lakes Submerged Lands Act (GLSLA),
MCL 324.32501 et seq., which relies upon the IGLD, is not
dispositive in defining the landward boundary of the public
trust.
Ante at 14-19.
In stating that “we are persuaded to adopt [the Diana
Shooting Club definition of “ordinary high water mark”] to
clarify
a
term
long
used
but
little
defined
in
our
jurisprudence,” ante at 28, the majority adopts the law of
another state, without much explanation as to why that law
has been chosen from among the laws of the fifty states or,
even more significantly, why the law of any other state is
seen
as
Michigan.
necessary
to
replace
the
long-settled
law
of
Further, the majority adopts only a part of the
law of that other state, again without much explanation as
to why it has chosen to adopt only parts of that other
state’s
process,
law.
the
Finally,
majority
to
compound
fails
to
this
inexplicable
accord
significant
consideration to the manner in which the courts of the
other state have interpreted its own law, misconstruing in
37
the
process
even
the
few
decisions
to
which
it
gives
consideration.
Even
absent
the
differences
between
Wisconsin
and
Michigan law, the Diana Shooting Club standard was derived
from
the
very
Undeterred,
without
the
different
context
majority
explanation
of
simply
how
it
application on the Great Lakes.
of
riparian
utilizes
should
property.34
this
be
standard
modified
for
The result is a definition
that is doubly vague, because the majority not only fails
to explain what kind of “distinct mark” is considered to be
so
“easily
recognizable”
that
it
can
be
allowed
to
determine the limits of the public trust, but it also fails
to provide any time frame for determining how “continuous”
the “presence and action of the water” must be in order to
leave such a mark.
The majority fails to define either of
these terms in a manner that will enable the public or
34
The majority observes that the Diana Shooting Club
definition is not “far removed from meanings previously
recognized in Michigan.”
Ante at 29.
In support, the
majority cites MCL 324.30101(i), a part of the current
version of the former Inland Lakes and Streams Act.
However, the majority fails to acknowledge that this
statute expressly states that it does not apply to the
Great Lakes.
MCL 324.30101(f).
I also assume that the
majority in characterizing its definition as "not far
removed" from another definition-- that which, in fact, has
been the law of Michigan-- is acknowledging, albeit
euphemistically, that it is adopting a new rule.
The
majority alternates between the adoption of new rules and
disclaiming that it has adopted such new rules.
38
property owners to determine which lands are within the
public trust.
What kind of “distinct mark” is sufficiently
“recognizable” to bring unsubmerged land within the scope
of the public trust?
Since it cannot be that point at
which wet sands give way to dry sands-- the majority having
rejected the position of this dissent-- is this “distinct
mark”
a
function
of
where
the
Is
a
function
of
seashells?
washed ashore?
it
where
have
debris
deposited
has
been
Is it a function of where some line of
vegetation can be identified?
Or is it a function of where
sand castles are no longer standing?
say.
waves
The majority does not
Moreover, even if the public or the property owner
could discern the relevant “distinct mark,” how would such
persons determine how “continuous” the “presence and action
of the water” has been-- or indeed must be-- in leaving
such a mark.
It cannot be limited to the “current ebb and
flow of the waves,” as that too is the position of this
dissent which the majority rejects.
“continuous?”
or an epoch?
How continuous then is
Is it a month, a season, a year, a century,
Again, the majority does not say.
Moreover, the majority would apparently expand public
access
to
private
littoral
lands
even
beyond
definition of the “ordinary high water mark.”
its
new
The majority
states, “‘where the bank or shore at any particular place
39
is of such a character that it is impossible or difficult
to ascertain where the point of ordinary high-water mark
is, recourse may be had to other places on the bank or
shore of the same stream or lake to determine whether a
given stage of water is above or below ordinary high-water
mark.’”
Ante at 27-28, quoting Diana Shooting Club, supra
at 272 (emphasis added).
Does the majority intend by this
to say that the public may now cross onto private littoral
property in order to determine where the new "ordinary high
water mark" lies?
access
to
such
water mark."
If so, the public would seem to have
property
even
beyond
the
"ordinary
high
The only apparent limitation on the public’s
right of access is that the "ordinary high water mark" must
be
“difficult”
to
ascertain.
Given
that
under
the
majority's new definition the "ordinary high water mark"
will never be anything other than difficult to ascertain-and, as the majority admits, will generally constitute a
"question
of
considerable
fact”
ante
potential
at
for
30-access
there
by
appears
the
public
to
be
upon
private littoral lands even beyond the "ordinary high water
mark."
the
Still, the majority is indisposed to answer any of
questions
in
determining
where private and public rights begin and end.
In eventual
course,
these
that
are
most
questions,
dispositive
so
40
indispensable
to
the
determination of individual property rights, will have to
be addressed by the Department of Natural Resources (DNR)
with virtually no guidance from this Court.
In leaving such questions to the DNR, the majority
adopts
the
different
premises
realm
of
of
administrative
property
law,
by
law
in
defining
the
very
critical
questions of property rights not in well-understood terms
that conduce toward specific boundaries, but in language
drawn from the modern administrative process in which vague
and empty terms are given meaning by regulatory agencies,
such as the DNR, with subsequent deferential review by the
courts.
This
uncertainty
majority
is
with
is
a
its
a
prescription
prescription
eyes
wide
for
open
for
uncertainty,
and
litigation,
and
the
has
to
give
chosen
Michigan both.
Further, the majority’s inclusion of unsubmerged lands
within
the
public
trust
because
“the
lake
has
not
permanently receded from that point and may yet again exert
its influence up to that point,” ante at 27, conflicts with
the traditional common-law definition of the public trust
doctrine.
At common law, the high water mark was defined
as “‘the line of the medium high tide between the springs
41
and the neaps.[35]
All land below that line is more often
than not covered at high water, and so may justly be said,
in the language of Lord Hale, to be covered by the ordinary
flux
of
the
sea.’”
Borax
Consolidated,
supra
at
25,
quoting Attorney-General v Chambers, 4 De G M & G 206, 217;
43 Eng Rep 486 (1854).36
High tides move with the moon as
it
Earth.
revolves
around
the
At
most
ocean
shores
35
The “spring tide” is defined as “the large rise and
fall of the tide at or soon after the new or full moon.”
The “neap” tide is defined as “those tides, midway between
spring tides, that attain the least height.” Random House
Webster’s College Dictionary (1997).
36
The majority asserts that I offer this as an
“authoritative definition for ordinary high water mark” and
that somehow there is a tension between this definition and
my criticism of the majority’s creation of new law in this
case.
Ante at 41 n 33.
That the majority does not
recognize the English common-law definition of the ordinary
high water mark is not surprising given that its novel
definitions of the term bear no resemblance. According to
the majority:
[The] ebb and flow, thus reaching one point
on the shore at low tide and reaching a more
landward point at high tide.
The latter
constitutes the high water mark on a tidal shore.
The land between this mark and the low water mark
is submerged on a regular basis, and so remains
subject
to
the
public
trust
doctrine
as
“submerged land.”
[Ante at 20-21 (emphasis
added).]
Thus, it appears that the majority takes the position
that the public trust extends to the highest high tide.
However, as noted in Borax Consolidated, the ordinary high
water mark is not the highest high tide, but rather the
medium high tide between the spring and neaps, which is
rarely exposed to the open air for more than twenty-four
hours.
42
throughout the world, two high tides and two low tides
occur every lunar day.37
A typical seaport will alternate
between high and low tides about every six hours.
Thus,
while the ocean bed may be temporarily exposed to the open
air during low tide, such land will again be submerged
during the next high tide.
Because the land is continually
being affected by the action of the water, it falls within
the scope of the English common-law doctrine, even when
exposed to open air.
In contrast, tidal forces acting on the Great Lakes
are of such a “trifling effect,” Warner, supra at 239, that
they cannot even be measured without precise instruments.38
Thus, there is no “high” or “low” water marks, as they are
scientifically
affected
hydrologic
understood.
seasonally
cycle,
by
Instead,
the
which
natural
lake
levels
operation
includes
of
are
the
precipitation,
37
A lunar day is the time it takes for the moon to
return to a point above the Earth: approximately twentyfour hours and fifty minutes.
See definition of "day,
lunar"
at
<http://www.ngs.noaa.gov/CORSProxy/cocoon/glossary/xml/D.xml> (accessed June 24, 2005).
38
According to the National Oceanic and Atmospheric
Administration, spring tide in the Great Lakes is less than
2
inches
(5
cm)
in
height.
See
<http://coops.nos.noaa.gov/faq2.html> (accessed June 24, 2005).
43
evaporation, condensation, and transpiration.39
During the
winter, the air above the lakes is cold and dry, compared
to
the
relatively
warm
temperature
of
the
lake.
As
a
result, the amount of water that evaporates into the air
exceeds the water vapor that condenses back into the lakes.
Any precipitation that falls on the lands surrounding the
lakes is in the solid form of snow, and, thus, is not
returned to the lake via runoff.
As a result, more water
leaves the lake than enters it in this season, resulting in
a decline in lake levels.40
As snow begins to melt in the
early spring, runoff into the lakes increases.
temperatures
increase,
the
warm,
moist
air
Further, as
above
the
relatively cold lakes limits evaporation to an amount less
than the rate of condensation.
As a result, average water
39
See, generally, United States Army Corps of
Engineers and the Great Lakes Commission, Living with the
Lakes (1999), pp 13-18.
This publication may be accessed
at <http://www.glc.org/living/> (accessed June 24, 2005).
40
According to the United States Army Corps of
Engineers, the lowest average lake level from 1918 to 2003
occurred as follows:
Lake Superior (March, 601.21 feet
above sea level); Lakes Michigan and Huron (February,
578.48 feet above sea level); Lake St. Clair (February,
573.43 feet above sea level); and Lake Erie (February,
570.8
feet
above
sea
level).
See
<http://www.lre.usace.army.mil/greatlakes/hh/greatlakeswate
rlevels/historicdata/longtermaveragemin-maxwaterlevels/>
(accessed June 24, 2005).
44
levels
rise
throughout
the
spring
and
eventually
peak
during midsummer.41
These natural phenomena suggest the unworkability of
placing the public trust boundary at the “ordinary high
water mark” as it is defined by the majority.
If the
“ordinary high water mark” is defined as a static boundary,
then the public trust doctrine would include unsubmerged
lands that are only covered by the water on an infrequent
basis.
Under the English common-law definition, such lands
should be treated in a manner similar to lands covered by
the spring tides, i.e., they are not subject to the public
trust
doctrine.
defined
as
a
If
the
floating
“ordinary
boundary,
high
then
water
it
mark”
becomes
is
nearly
impossible for either a beach user or a littoral property
owner
to
determine
where
the
boundary
is
located.
To
account for the hydrologic cycle, the “ordinary high water
mark” would need to be redefined on a monthly or seasonal
basis.
Further, the boundary would have to be readjusted
on a year-by-year basis to account for long-term changes to
41
According to the United States Army Corps of
Engineers, the highest average lake level from 1918 to 2003
occurred as follows: Lake Superior (September, 602.23 feet
above sea level); Lakes Michigan and Huron (July, 579.43
feet above sea level); Lake St. Clair (July, 574.77 feet
above sea level); Lake Erie (June, 571.95 feet above sea
level). Id.
45
lake levels caused by weather fluctuations.
Since 1918,
the Great Lakes have experienced three periods of extremely
low water levels, in the late 1920s, mid-1930s, and mid1960s.
the
Periods of extreme high water were experienced in
early
1950s,
early
1970s,
mid-1980s,
and
mid-1990s.
The “point on the bank or shore up to which the presence
and action of the water is so continuous as to leave a
distinct mark either by erosion, destruction of terrestrial
vegetation, or other easily recognized characteristic” in
1926 would have been in a completely different location
than the point reached in 1986.
Likewise, that point in
February
a
of
each
year
would
be
completely
different
location than the same point in July of each year.
Thus,
any definition of where “the presence and action of the
water is so continuous as to leave a distinct mark either
by erosion, destruction of terrestrial vegetation, or other
easily recognized characteristic” must vary depending on
what method is used to calculate that level.42
42
For example, on Lake Huron, the average yearly level
of the lake in 2003 was 577.07 feet above sea level. The
average yearly level of the lake from 1918 to 2003 was
578.94 feet above sea level. The monthly average for June
2003 was 577.43 feet above sea level. The monthly average
for the month of June, from 1918 to 2003, was 579.33 feet
above sea level.
46
The majority’s “ordinary high water mark” also fails
to account for changes to the location of the waterline
caused by events unrelated to lake levels.
First, wind and
barometric forces can raise water at one end of the lake,
causing a dip in water level at the opposite end.
If the
forces raising the water on one end suddenly cease, the
entire lake may move in a see-saw fashion, alternatively
rising
and
movement.
falling
on
each
end
in
a
“pendulum-like”
This phenomenon, called “seiche,” can last from
minutes to hours to days.
Second, ice or foreign bodies
such as plants may block the normal flow of rivers and
channels connected to the Great Lakes, thereby causing an
increase or decrease in the water level of connected lakes.
Finally, most of the Great Lakes basin is rising, as the
Earth’s crust slowly rebounds from the removed weight of
the glaciers that covered the area around 14,000 years ago.
Because the glaciers were thickest in the northern part of
the basin around Lake Superior, this region is rebounding
at a faster rate, nearly twenty-one inches a century, than
the rest of the basin.
As a result, the Great Lakes are
“tipping” in a way that causes water increasingly to pool
in the southern portions of the Great Lakes basin.
The
shoreline is receding in the northern basin and advancing
in the southern basin.
Thus, while the “ordinary high
47
water mark” makes sense in tidal waters, it does not make
sense in the nontidal Great Lakes because of the irregular
nature of lake level fluctuations.
Further,
the
majority’s
new
definition
fails
to
account for those times when the waters of the Great Lakes
go beyond the “ordinary high water mark,” assuming that
such an event could even occur under the majority's new
definition.
The majority justifies its new rule, on the
basis of this Court's statement in Peterman, supra at 198,
that “‘the limit of the public's right is the ordinary high
water mark . . . .’” (Citation omitted.)
Ante at 40.
However, the majority also states that the public trust
doctrine serves to protect “the waters of the Great Lakes
and their submerged lands . . . .”
Ante at 31.
Thus, when
the water’s edge is beyond the “ordinary high water mark,”
there is a conflict between the majority’s stated limit of
the public right to the “ordinary high water mark” and its
inclusion of submerged lands within the public trust.
Is a
property owner or a member of the public to understand that
use of submerged lands between the “ordinary high water
mark” and the water’s edge is forbidden?
Does this mean
that a member of the swimming or walking public is trapped
within
the
“ordinary
Great
high
Lakes
water
until
mark?”
48
the
water
How
does
recedes
a
to
the
member
of
the
public or a property owner determine where the “ordinary
high water mark” is in such a circumstance?
Does limiting
public access to a submerged "ordinary high water mark"
conflict with our holding in Warner, supra at 239, that the
public trust begins where the water is, “whether the water
be deep or shallow”?
Peterman
somehow
Or is the majority’s reliance on
silently
qualified
to
apply
only
when
water levels on the Great Lakes lie below the “ordinary
high water mark”?
The majority again does not say.
By contrast, limiting the public’s right of access to
the “water’s edge,” i.e., the point at which wet sands give
way to dry sands, addresses all of the various forces at
work on the lakes and is consistent with the common-law
definition of the high water mark.
First, the “water’s
edge” principle reflects the dynamic natural forces at work
on the Great Lakes.
As the waters of the Great Lakes move,
so too does the area where wet sands give way to dry sands.
The littoral property owner’s title, and with it his or her
littoral
rights,
including
the
right
of
exclusive
possession, follows the movement of the water.43
43
As we
However, as noted in Peterman, supra at 193-198, the
littoral owner’s rights are subject to regulation by the
state.
See e.g., MCL 324.32503 (prohibiting filling or
altering land below the statutorily defined high water mark
without a permit), MCL 324.32512 (prohibiting certain acts
49
explained in Warner, the littoral property owner’s rights
end
where
the
water
is
“whether
the
water
be
deep
or
shallow, and although it be grown up to aquatic plants, and
although it be unfit for navigation.”
Warner, supra at
239.
At that point, the state’s public trust title begins.
Id.
As correctly observed by the DNR, the area “where the
water is” includes the wet sands where the waters of the
Great
Lakes
presence.
have
marked
their
current
and
continuous
Because by definition such sands are infused
with water, the wet sands fall within the definition of
“submerged lands.”
point
at
water’s
which
edge
wet
marks
unsubmerged lands.44
As a result, the “water’s edge” is the
sands
the
give
way
boundary
to
dry
between
sands.
The
submerged
and
This position is consistent with the
position of the defendant littoral owners in the instant
case.
Contrary to plaintiff’s expressions of concern that
of waterway maintenance without a permit), and MCL
324.32512a (prohibiting mowing or removing vegetation
except as permitted by the DNR).
44
The majority claims that I would “grant an exclusive
right of possession to littoral landowners . . . down to
where unsubmerged land ends, which [I] locate[] at the
water’s edge . . . .”
Ante at 38.
A significantly more
precise statement of my position is that the littoral
landowner has the right of exclusive possession to
unsubmerged land, while the public has the right to use
submerged land under the public trust doctrine.
The
water’s edge, i.e., where the wet sands give way to dry
sands, where submerged land meets unsubmerged land, marks
the limit of each of these rights.
50
she would be forced to walk in the water, as a member of
the public she has always had the right to walk along the
wet sands abutting the Great Lakes. Because the wet sands
are submerged lands, a littoral owner has never had the
right to prevent a member of the public from using such
lands.
While I agree with the DNR’s inclusion of the wet
sands
as
submerged
lands,
the
DNR
reaches
the
same
erroneous conclusion as the Court of Appeals, namely that
the littoral owner holds title only to the “ordinary high
water mark.”45
This interpretation apparently is based on
the following passage from Hilt, supra at 226:
The riparian owner has the exclusive use of
the bank and shore, and may erect bathing houses
and structures thereon for his business or
pleasure (45 C.J. p 505; 22 L.R.A. [N.S.] 345;
Town of Orange v. Resnick, [94 Conn 573, 578; 109
A 864 (1920)]); although it also has been held
that he cannot extend structures into the space
between low and high-water mark, without consent
of the State (Thiesen v. Railway Co, 75 Fla. 28
[78 South. 491; L.R.A. 1918E, 718]). And it has
been held that the public has no right of passage
over dry land between low and high-water mark but
the exclusive use is in the riparian owner,
although the title is in the State.
Doemel v
Jantz, [supra].
45
The DNR’s position is consistent with the Attorney
General’s opinion in 1978 noting that title to property
between the high water mark and the water’s edge remains in
the state, but the right of exclusive use remains in the
littoral owner.
OAG, 1977-1978, No 5,327, p 518 (July 6,
1978).
51
However, this statement from Hilt does not represent a
conclusion of this Court.
Rather, it is cited as part of
this Court's response to the notion that Kavanaugh “gave
the State substantially absolute title . . . to the upland
or to use them for any public purposes.”
Id. at 224.
In
rejecting this theory as a justification for maintaining
Kavanaugh, we noted that the “title” conferred to the state
in Kavanaugh was confined “to the same trust which applies
to the bed of the lake, i.e., that the State has title in
its sovereign capacity and only for the preservation of the
public rights of navigation, fishing, and hunting.”
Id.
Thus, “the right of the State to use the bed of the lake,
except for the trust purposes, is subordinate to that of
the riparian owner . . . .”
Orange, supra at 578.
Id. at 226, citing Town of
To support this point, Hilt noted
that “it has been held that the public has no right of
passage over dry land between low and high-water mark but
the exclusive use is in the riparian owner, although the
title is in the State.”
Hilt, supra at 226, citing Doemel.
This demonstrates that Hilt was not adopting the rule
from Doemel, but rather was using that case to demonstrate
that Kavanaugh did not give unlimited title to the state
and, therefore, that the title granted to the state by
Kavanaugh was not a valid basis for maintaining the meander
52
line as a boundary.
Thus, the only basis for holding that
the state holds title to unsubmerged land up to the socalled high water mark is to misunderstand the importance
of Hilt’s reference to Doemel.
It is clear that when Hilt
said that a littoral owner’s title goes to the water’s
edge, it meant “water’s edge.”
Likewise, when Warner said
that the state’s title begins where the water is, it meant
“where the water is.”
Second,
the
“water’s
edge”
principle
is
consistent
with the common-law definition of the high water mark.46
At
common law, the area of medium high tide would seldom be
dry for more than twenty-four hours at a time.
Benson, 8 Mich 18, 29 (1860).
Lorman v
In other words, the land at
or below medium high tide was generally covered by the
ocean during the daily tidal cycle.
Therefore, this tidal
land was considered “waste land” that was “‘not capable of
ordinary
cultivation
or
occupation.’”
46
Id.
at
28-29
Although I do not agree that the “wet sands area” as
it applies to the public trust doctrine is equivalent to
the “ordinary high water mark” as it applies to the
navigational servitude, at least one commentator has
observed that the “wet beach” is the area “between ordinary
high watermark and ordinary low watermark.”
Pratt, The
legal rights of the public in the foreshores of the Great
Lakes, 10 Mich Real Prop Rev 237, 237 (1983). According to
this commentator, the “high water mark” and the “water’s
edge” are, for all practical purposes, the same in the
nontidal Great Lakes.
53
(citation omitted).
Similarly, in the instant case, the
wet sands are being inundated with water by the current ebb
and
flow
of
the
waves.
However,
when
lake
levels
fluctuate, any land that is no longer subject to the ebb
and flow of the waves becomes unsubmerged land, which is
suitable for “ordinary occupation” and, therefore, as with
lands affected by the spring tides, is not within the scope
of the public trust doctrine.
Finally, the “water’s edge” principle is significantly
more
workable
mark.”
than
the
majority’s
“ordinary
high
water
A member of the public can, by simple observation,
without the use of "aerial photographs, government survey
maps
.
.
.
and
stereo
[three-dimensional]
photographs,"
ante at 28 n 20, determine where he or she is allowed to
use land without seeking the littoral owner’s permission.47
47
The majority claims that the “water’s edge”
principle provides no greater “clarity” than its new rule
and that the “water's edge” standard constitutes a “charade
of clarity.”
Ante at 41-42.
The reader might wish to
ponder this assertion.
On the one hand, the traditional
standard for delineating between public and private lands-the standard that I would retain-- requires merely that a
person be able to distinguish between wetness and dryness,
between wet sands and dry sands, between where there is
water and where there is not.
Even a Supreme Court
justice, I would submit, should be reasonably able to draw
such distinctions.
Contrast this to the majority’s test
that would require a person to locate “the point on the
bank or shore up to which the presence and action of the
water is so continuous as to leave a distinct mark either
54
When the waters recede, land that is no longer subject to
the
current
ebb
and
flow
of
the
waves
will
become
unsubmerged land and, therefore, will again be under the
exclusive control of the littoral property owner.
In conclusion, as we noted in Warner, supra at 239,
although in dictum, the absence of tides “practically makes
high
and
low
determining
“water’s
water
mark
boundaries
edge”
identical
[along
principle
the
for
the
Great
recognizes
purpose
Lakes].”
this
of
The
reality
by
defining the rights of both the littoral property owner and
the public in terms of the actual location of the water.
This definition is consistent with the natural forces at
work on the Great Lakes; it is consistent with the commonlaw scope of the public trust doctrine; it is consistent
with
historical
practice
in
Michigan;
and
it
creates
public trust area that can readily be identified.
a
The
majority has presented no reason why this longstanding rule
no
longer
competing
represents
interests
at
a
reasonable
issue
in
balance
this
case.
between
the
Yet,
the
by erosion, destruction of terrestrial vegetation, or other
easily recognized characteristic.”
The majority does not
even attempt to offer guidance to the public or property
owners as to the meaning of this standard.
Rather, the
majority suggests that expert witnesses will be able to
identify this mark by using “aerial photographs . . ., the
government survey maps, the site’s present configuration,
and stereo [three-dimensional] photographs . . . .”
Ante
at 28 n 20.
55
majority discards this clear standard, which has operated
for most of the history of our state to create harmonious
relations between the public and littoral property owners,
and replaces it with an unknowable standard of its own
invention that requires littoral property owners and the
public to guess where the “ordinary high water mark” is
located.
III. MISUNDERSTANDING
The
majority’s
OF
JUS PRIVATUM/JUS PUBLICUM
determination
to
apply
what
it
has
defined as the “ordinary high water mark,” despite a lack
of foundation in Michigan law, appears to be rooted in its
fundamental misunderstanding of the distinction between the
jus
privatum
and
jus
correctly,
that
the
navigable
waters
is
publicum.
title
to
The
the
bifurcated;
majority
submerged
with
the
jus
notes,
lands
of
publicum
safeguarding the rights to the public and the jus privatum
safeguarding private property rights, subject always to the
jus publicum.
Nedtweg v Wallace, 237 Mich 14, 20; 208 NW2d
51 (1927).
However, rather than limit application of the
doctrine
submerged
to
lands,
the
majority
instead
holds
that any conveyance of lakefront property consists solely
of the jus privatum, with the state’s jus publicum title
including unsubmerged lands up to the “ordinary high water
mark.”
I
disagree,
and
instead
56
believe
that
the
jus
publicum applies only to the submerged lands of the Great
Lakes.
The distinction between jus privatum and jus publicum
was first addressed by this Court in Lorman, supra.
In
Lorman, a former lessee of property abutting the Detroit
River claimed that he had a right to use and maintain a
boom constructed in the water.48
Under the English common
law, private title to the bed of a navigable river was
determined by whether the river was subject to the ebb and
flow
of
the
regardless
of
tides.
who
Lorman,
held
supra
the
jus
at
26-27.
privatum,
However,
the
private
owner’s rights were limited to those uses that would not
interfere with “the public easement of navigation[.]”
at 27.
Id.
In tidal rivers, the jus privatum was subject to
the public’s “right of navigation over the whole bed of the
stream at high tide, and over the water, so far as it was
practicable, at all tides.”
Id. at 27-28.
However, the
public’s rights too were not without limit.
public’s
rights
did
not
extend
to
land
First, the
“not
commonly
submerged by the average ordinary high tides, which would
seldom leave any of the shore dry more than twenty-four
48
A “boom” is defined as
serving to obstruct navigation.”
College Dictionary (1997).
57
“a chain, cable, etc.,
Random House Webster’s
hours at a time.”
Id. at 29.
Second, the public’s use of
the jus publicum was limited to “water rights,” i.e., the
right of navigation and fishing.
Id. at 30.
No matter who
held title to the river bed, the public’s right to use the
river was always limited to the water itself.
Because the
former lessee sought to use the Detroit River for purposes
other than navigation or fishing, the Court determined that
the former lessee’s use was not superior to that of the
riparian
owner
and,
therefore,
the
riparian
owner
could
bring an action for trespass.
The limitation of the jus publicum to use of the water
itself was also expressed by this Court in McMorran Milling
Co v C H Little Co, 201 Mich 301; 167 NW 990 (1918).49
In
McMorran Milling, a dredger entered into a contract with
the riparian owner for the right to remove sand from the
49
The majority cites Justice Campbell’s dissenting
opinion in Sterling v Jackson, 69 Mich 488, 506-507; 37 NW
845 (1888), in support of its jus privatum/jus publicum
analysis. Ante at 11. The Sterling majority observed that
title to the river bed belongs to the riparian owner, but
that such title is limited by the public’s right of
navigation. Sterling, supra at 500. However, the public’s
rights in that case were limited to “using the waters of
the bay for the purpose of a public highway in the
navigation of [the defendant’s] boat over it . . . .” Id.
at 501. Aside from the right of navigation, all other uses
of the river bed belonged exclusively to the riparian
owner.
Id.
In other words, the riparian owner’s jus
privatum was limited only by the uses expressly allowed
under the jus publicum, i.e., the right of navigation. Id.
58
river bed.
dredging
The federal government, concerned that such
would
adversely
affect
dredger to cease operation.
navigation,
ordered
the
After the dredger complied
with this order, the riparian owner brought suit demanding
the dredger continue to pay for the right to remove sand.
This Court began its analysis by noting that the riparian
owner “holds the naked legal title [the jus privatum], and
with it he takes such proprietary rights as are consistent
with the public right of navigation [the jus publicum], and
the
control
of
congress
(citation omitted).
“‘held
at
all
over
that
right.”
Id.
at
314
Thus, the riparian owner’s title is
times
subordinate
to
such
use
of
the
submerged lands and of the waters flowing over them as may
be
consistent
with
navigation.’”
omitted).
Id.
or
demanded
at
the
public
(emphasis
310
by
added;
right
of
citation
The Court concluded that the dredger was evicted
from the river bed by the government, which on the basis of
its right to protect navigation had superior title over the
riparian
owner.
Therefore,
the
riparian
owner
was
not
entitled to further payment after the date of eviction.
Id. at 318.
Unlike rivers and inland lakes, the state holds both
the jus privatum and jus publicum title to the submerged
lands of the Great Lakes.
Nedtweg, supra.
59
In Nedtweg, the
state sought to lease several thousand acres of relicted
land abutting Lake St. Clair that were considered submerged
in
law.50
In
order
to
do
so,
the
Legislature
passed
legislation authorizing long-term leases of such land to
private
individuals.
The
refused
to
such
enter
into
Department
leases,
of
Conservation
arguing
that
the
submerged-in-law land was held in trust for the public and
could
not
be
conveyed.
We
noted
that
the
title
to
submerged land is bifurcated between the jus publicum and
the jus privatum.
Nedtweg, supra at 17.
The State may not, by grant, surrender such
public rights any more than it can abdicate the
police
power
or
other
essential
power
of
government. But this does not mean that the State
must, at all times, remain the proprietor of, as
well as the sovereign over, the soil underlying
navigable waters. [Id.]
In other words, the state may convey the jus privatum
in submerged Great Lakes land, as long as that conveyance
does not interfere with the public’s “rights of navigation,
hunting and fishing.”
Id. at 18.
The Court noted that,
because the land in question was now dry land, it was no
longer
suited
publicum.
for
the
Id. at 22.
purposes
protected
by
the
jus
In other words, contrary to the
majority’s understanding, while the “submerged” lands in
50
Nedtweg
Kavanaugh cases.
was
decided
60
during
the
reign
of
the
question were still part of the public trust, the lease was
permissible because there was no interference with the uses
protected by the public trust doctrine.51
To summarize, under the common law as it has developed
in
Michigan,
the
jus
privatum
is
held
by
either
the
adjoining property owner (in the case of rivers or inland
lakes), or by the state itself (in the case of the Great
Lakes).
subject
In either case, the jus privatum title is held
to
the
public’s
rights
under
the
jus
publicum.
However, the public’s jus publicum rights are limited to
use
of
the
waters
Milling, supra.
themselves.
Lorman,
supra;
McMorran
Further, the jus publicum only protects
the public’s right to use private property for specific
purposes,
Nedtweg,
such
as
supra.
navigation,
There
are
no
fishing,
cases
and
that
hunting.
support
the
majority’s view that the jus publicum extends beyond the
water’s themselves to include unsubmerged land.
supra at 29.
Lorman,
On the Great Lakes, the overlap between jus
privatum and jus publicum would only come into play when
the Legislature conveyed a portion of the submerged lands
to
a
third
party.
Because,
51
as
argued
previously,
the
The majority claims that the lands at issue in
Nedtweg were “set[] apart from the public trust.” Ante at
27.
61
littoral owner’s title never extends past the wet sands,
unsubmerged land between the wet sands and the “ordinary
high water mark” is simply not, and has never been, part of
the jus publicum.
IV. QUESTIONS RAISED
BY
MAJORITY OPINION
Questions directly raised by the majority's departure
from the longstanding status quo in our state include the
following:52
(1) Are there property tax consequences to the fact
that the exclusive rights of littoral property owners would
now
extend
not
to
the
water’s
edge,
but
only
to
the
“ordinary high water mark”?
52
The majority maintains that this case “raises none
of the questions that [this dissent] poses,” while, of
course, choosing to answer none of these questions.
Ante
at 44. The majority is mistaken if it believes that it can
replace settled law in Michigan with a selective part of
the law of another state-- indeed the least clear part of
that
other
state's
law-and
create
a
new
legal
relationship between littoral property owners and the
public, all the while avoiding giving rise to new legal
questions and generating litigation. Each of the questions
set forth in this section, as well as a great many more
that neither I nor the majority can anticipate, will be
introduced into the legal system as a direct result of the
majority’s opinion.
This opinion will be subject to
cryptanalysis for many years to come and will produce
litigation and dispute where up to now there has been none.
Perhaps equally troubling, when clarity in the law is once
again established in the area of littoral property rights-many years from now, and only after what is likely to be an
unnecessary period of fractiousness and contention-- it
will
likely
come
as
a
function
of
administrative
determinations of private property rights.
62
(2) Given that the majority has expanded the lands
subject
to
the
public
trust
corresponding
expansion
of
“inherent
in
the
uses”?
That
uses
exercise
is,
doctrine,
of
given
will
that
are
traditional
that
the
there
a
considered
public
public
be
trust
trust
now
encompasses dry land up to at least the “ordinary high
water
mark,”
are
there
new
uses
of
these
lands
that
arguably can be connected to traditional public trust uses?
(3) Given that there are always more members of the
public
who
manner
may
than
wish
there
to
are
use
a
property
property
owners,
in
a
particular
what
permanent
protections exist to ensure that the Department of Natural
Resources, as a political institution, will not seize upon
the
vagueness
and
lack
of
definition
of
the
majority
opinion increasingly to broaden the “public trust” at the
expense of littoral property rights?
(4)
What
are
the
implications
of
the
majority's
opinion for the rights of other littoral property owners on
lakes other than the Great Lakes, whose properties also
afford access to recreational opportunities for the public?
(5) Given the majority’s conclusion that “the public
trust doctrine serves to protect resources,” what are the
implications of the majority’s opinion for the rights of
non-littoral property owners, whose properties abut or have
63
an
impact
upon
state
lands
used
by
the
public
for
recreational purposes?
V.
I
would
Michigan,
not
and
altered
subject
to
alter
I,
this
the
longstanding
therefore,
status
the
CONCLUSION
quo
public
dissent.
by:
trust
(1)
status
The
majority
redefining
doctrine
on
quo
the
the
in
has
lands
basis
of
Wisconsin’s definition of the “ordinary high water mark”;
and
(2)
holding
unsubmerged
for
lands
the
is
first
permitted
time
by
that
the
the
use
public
of
trust
doctrine.
The
majority
fails
to
identify
any
defects
in
the
present rules of this state, rules that have endured since
statehood,
that
would
justify
its
departure
from
the
“water’s edge” principle in favor of unclear rules of its
own design.
The present rules have created a reasonable
and harmonious balance between the rights of the public and
the rights of littoral property owners.
the
littoral
owner’s
title
follows
the
Under these rules,
shoreline,
i.e.,
where the wet sands give way to the dry sands, wherever
this may be from time to time.
Because the boundary is
dependent on the natural condition of the Great Lakes, it
is
easily
identifiable,
workable rule.
thus,
creating
a
practical
and
The public’s legal right to use private
64
property along the shores of the Great Lakes should remain,
as it has always been, within this realm.
The critical flaw in the majority’s decision making is
that it creates new law, not on the basis of the millions
of amicable interactions that occur each year between the
public and lakefront property owners, but instead on the
basis of the single aberrational dispute in this case.
In
the place of a stable and well-understood law that has
worked well for more than a century and a half to define
the rights of the public and littoral property owners and
to minimize litigation, the majority, in reaction to the
present dispute, finds it necessary to introduce a range of
novel
concepts
into
Michigan
property
law.
Apart
from
lacking any basis in present Michigan law, these concepts
are essentially undecipherable.
law
in
which
stability
and
Thus, in an area of the
clarity
are
paramount,
the
majority offers rules that are obscure and that will be
subject to evolving definition by environmental regulatory
agencies.
Almost
certainly,
these
new
rules,
in
conjunction with the majority’s disinclination to define
the
critical
aspects
of
these
rules,
will
lead
to
an
escalation in the number of disputes between members of the
public and property owners along the Great Lakes.
65
In the
place of harmony, there will be litigation.53
In the place
of unobstructed beachfront, there will be fences.
hundred
cases
from
now,
and
after
the
Five
expenditure
of
enormous litigation costs and legal resources, Michigan, if
it
is
fortunate,
will
once
again
reach
the
state
of
equilibrium that it enjoys today and that it has enjoyed
for many decades under current law.
I would affirm the result of the Court of Appeals,
reverse that portion of the Court of Appeals opinion giving
53
In the end, it will not be surprising if the day-today rights of the public even to beach-walk-- the
ostensible triggering concern of this case-- were to be
diminished by the majority’s decision.
For, in the place
of a rule in which property rights are clearly defined and
protected, and in the place of a regime in which most
littoral property owners have easily accommodated the
public’s interest in activities such as beach-walking, the
majority creates a far more uncertain rule, one in which
property rights have become more ambiguous and uncertain,
and more subject to political regulation and definition.
Just as some members of the public are likely to become
more assertive in their claim of a “right” to use the
property of another, so too will some property owners
become more assertive in purporting to “defend” their
properties from the encroachments of such persons.
At
least some of these owners can be expected to assert their
property rights in circumstances where today this has been
thought unnecessary.
It may well be that a legacy of the
majority opinion is the proliferation of fences along the
beaches of the Great Lakes. Fences and more fences. As a
result of the majority’s decision to replace clearly
understood and longstanding rules of private property
rights with new rules in which the public trust is to be
expanded in an uncertain manner, the rights of both the
public and the property owner will likely become less well
protected.
66
the state title to land below the “ordinary high water
mark,” and reaffirm the longstanding principle of Hilt that
the littoral property owner’s title extends to unsubmerged
land and the public’s legal rights under the public trust
doctrine extend to the submerged lands, including the wet
sands.54
Stephen J. Markman
54
Because I agree with the majority that the GLSLA
does not establish the boundaries of the public trust, I
concur in part II(A) of the majority opinion.
67
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