Daily Development for Wednesday, August 17, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

WATERS AND WATER RIGHTS; LITTORAL RIGHTS; PUBLIC TRUST DOCTRINE:  Michigan holds that public trust doctrine permits public pedestrian access on the Michigan shore of the Great Lakes on the lakeward side of the “ordinary high water mark,” rather than simply on the wet sand edge of the lake  

Glass v. Goeckel, --- N.W.2d ----, 473 Mich. 667, 2005 WL 1793731 (Mich. 2005)

In this potentially very significant opinion, the Michigan Supreme Court, in a split opinion, makes important pronouncements both about the extent of the public trust along the Great Lakes shorelines in that state and also about the public’s rights of use within that area.  Importantly, the court concludes that any prior State grants of private rights that are inconsistent with this public trust determination are invalid.  Hence, although, by patent or other state grant, landowners may own title to land up to the water’s edge, their ownership necessary is subject to the rights of the Public Trust, which would include, as indicated, the right of pedestrian passage along the area between the “ordinary high water mark” and the current edge of the water. 

The court pointedly notes that its opinion does not consider public trust considerations or public easement rights for littoral property other than that bordering the Great Lakes.  Further, it says nothing about public access *to* this pedestrian walkway, although there clearly are rights *along* it for the whole distance of the lake shore.  

The majority asserts that it is following Wisconsin law as to the determination of the location of the public trust property.  It states that the boundary is the “ordinary high water mark line, described as “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 characteristics.”    This area is considerably broader than the area that the dissenters would recognize (and apparently has been generally accepted, even by the parties), which would be that portion of the edge of the lake continuously dampened by the lake’s waters.  Both sides agree that the actual edge of the Great Lakes changes frequently but irregularly.  Unlike ocean beaches, where the ordinary high water mark is more or less permanently identified by the consistent ebb and flow of tides, the edge of the Great Lakes change according to storms, barometric pressure, and other factors that are very inco

nsistent.

In response to the criticism that the new boundaries lack clear definition and will lead to endless squabbles and protectionist efforts by landowners, the court responds that the “edge of the water” definition wasn’t all that clear either, and that a clearer definition would not stand the test of time:

“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 legal argument on an issue of significance to our state's jurisprudence.

Nor does our colleagues' "water's edge" concept provide superior clarity. Although the term might intuitively appear to mean where the water meets land, Justice Markman expands the term to include sand dampened by water. See, e.g., post at 50 ("Because by definition such sands are infused with water, the wet sands fall within the definition of 'submerged lands." '). Our colleagues' conception of "water's edge" 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: that identified by touch, sight, or a scientific review 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. Also, the instant-by-instant determination of a property boundary affords little certainty to littoral landowners. Given these serious difficulties in applying our

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.”

The dissenters argued that the “edge of the lake” measure, although uncertain from time to time, was much more easily identifiable and less likely to promote disputes.  They further argued that it was more consistent with common understanding and that there was nothing in Michigan precedent to support any other rule. 

The court noted, as stated, that any state grants of individual authority that are inconsistent with the public trust notion are simply invalid, even though the owners in fact own the fee in the property subject to the public trust.  But it did say that the state could regulate the public trust property as it saw fit (apparently so long as its regulations were consistent with the notion of the easement right as part of the public trust. 

Comment 1: As noted, all parties and all judges agreed that there was a right to walk along the lake shore in some area.  The editor wonders what happens when a littoral owner seeks to develop the lake shore by construction of a dock or other device that extends into the water.  Since the state can regulate, perhaps it also can permit uses it deems to be in the public interest that might interfere with the walking easement.

Comment 2: The basic arguments in this case, though lengthy, are carefully and clearly drawn, and interested parties would find the case a good read, probably better than this homely little DD.

Comment 3: The dissenting judge worried that once the entire dry sand area of the Michigan Great Lakes lakefront is declared to be in the public trust, there will be pressure to authorize and develop far more public activities within the area - gradually eroding away the private property expectations of the landowners.  This does seem to be a likely scenario.  In politics, that which can be done will be done if there’s enough money to be made.

Comment 4: The editor finds the notion of the “edge of the lake” approach far more satisfactory from the standpoint of land title, although he likes to walk along the water’s edge as much as the next. 

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