Glass v. Goeckel

Glass v Goeckel GLASS GOECKEL 4). (Calendar 8,2005 July Argued No. Decided Docket No. 126409. March Rehearing denied 474 Mich 1201. 2005. brought seeking Joan Glass an action in the Alcona Circuit Court M. Goeckel, injunction against A. D. owners an Richard and Kathleen property abuts Huron. The defendants contended Lake plaintiff trespassing on beach in that the was when she walked the right plaintiff argued home. The that she had a to front of their court, ordinary high John E the water mark. The trial walk below Kowalski, J, granted summary plaintiff. disposition for The the EJ., JJ., Appeals, and Wilder Court of O’Connell, Murray, reversed, holding ordinary high the land below the water state, belongs riparian the but the owner has exclusive use mark to submerged ordinary high previously water lands below mark, plaintiff any public and neither the nor other member statutory high water has a to traverse the land between (2004). edge. App Supreme Mich The mark and the water’s (2004). granted appeal. leave to 471 Mich 904 Court joined by opinion In an Justice Chief Justice Corrigan, Supreme and Justices Cavanagh, Weaver, Kelly, Taylor, Court held: protects plaintiffs right trust doctrine to walk along power the shores of the Great Lakes. The state lacks the conveys public rights diminish the it holds in trust when it littoral private parties. conveyed Such land is to the up in the Great Lakes and their shores ordinary high ordinary water mark. The water mark is the presence point up on the bank or the shore to which the and action erosion, of water is so continuous as to a distinct mark leave vegetation, easily recognized destruction of terrestrial or other prevent plaintiff The defendants cannot from characteristic. enjoying rights preserved by trust doctrine. The required public, plaintiff, members are not to walk and other lands, may currently submerged but walk in the area on judgment ordinary high mark. The of the Court of below the Appeals must remanded to the must be reversed and the matter be opinion. proceedings consistent with this trial court 473 Mich 667 1. The trust doctrine from the common law the sea applies state, sovereign, to the Great Lakes. The serves as the public’s rights trustee of the to use the Great Lakes for various public purposes relinquish duty. Although and cannot authority convey private state retains the lakefront parties, conveys property subject public rights it such to the preserved public under the trust doctrine. Submerged Act, 2. The Great Lakes Lands MCL 324.32501 et seq., public does not establish the limits of the trust doctrine. Rather, scope regulatory authority the act establishes the of the Legislature pursuant public the exercises to the trust doc- prior decisions, however, trine. The adopted commonlaw and have ordinary high the public water mark as the of the trust protections public doctrine. The of the trust doctrine extend to the ordinary high water mark. Walking 3. ordinary high the beach below the water mark is traditionally protected public inherent in the exercise of and scope public falls activity within the trust. This remains subject regulation, any public as is use of the trust. Appeals 4. The granting Court of erred in the defendants an right edge, exclusive of use down to the water’s because littoral property public remains trust and the defendants according hold title to the terms of their deed. Young, concurring part Justice dissenting in part, agrees and in majority’s with the determination that the Great Lakes Sub- merged public right Lands Act doеs not establish a to walk the “ordinary shores of the high Great Lakes below the water mark” plainly as defined in that legislative act. The act evinces a intent only regulate adjacent the use of land to the Great Lakes rather scope public private than to establish property rights of and in such land. He majority opinion. dissents from the remainder of the This thoroughly argued was a briefed parties and in case which the and justices conflicting of interpretations this Court assert of Michigan’svague public jurisprudence. opinions trust While the of majority both the and Justice Markman are honest and erudite body constructions of property law, this abstruse of lakefront opinion Justice Markman’s is more consistent with the fundamen- principles public tal jurisprudence embodied in our and with physical joins parts realities of the Great Lakes. He I-III and V opinion. of majority Justice Markman’s concludes that the “ordinary high water mark” defines the boundaries of the originally trust doctrine. But adopted this term was from cases applying and, truth, trust doctrine to tidal waters in is v Goeckel Glass waters, regularly recurring only applicable their to tidal with periods tides. For nontidal waters such as and low itself, Lakes, edge only true mark” is the water’s Great “water portion readily the lakeshore over identified as that which is ebbing flowing. presently lake is and It within which the earth, bed, including that the the lake the wet sand or area of public may simply public may because the littoral walk. The do so property rights superior lake to those has no bed landowner public. Thus, majority by recognizing public right on errs to walk “right” Michigan no court has ever before littoral —a point recognized up that neither the nor on the shore — rule, identify any practical precision. can with The more comports faithfully with established and the rule that more longstanding practices Michigan property rights and with the rights, recognize public’s is to beach walkers littoral owner passage portion over that of the shoreline over which the ebbing flowing. presently lake is Makkman,concurring part dissenting part, Justice Michigan longstanding he not alter the law of stated that would public’s right that holds that the to use littoral under the trust doctrine is limited to the use of lands covered Lakes, including Great its wet sands. (1) rights property He not alter the law of littoral in would Michigan history in a law existence for most of this state’s and —a relationship an law that has created harmonious between the public property in of and Great Lakes owners the context millions year occurring them each the basis of interactions between —on dispute in the isolated and aberrational this case. (2) property rights in He would not alter the law of littoral Wisconsin, Michigan by adopting piecemeal the laws of since there greater is no realm of the law in which there is a need to maintain continuity regard private property stability to and than with rights. (3) rights property alter the of littoral in He would not law Michigan by adopting vague such test is and fails new test where provide guidance public property to in identi- owners fying rights begin and end. He believes that such test where their inevitably litigation in an area that has will lead to more law century largely litigation past and a been free from such for the half, subject rights test littoral and that such will regulatory increasingly to the determinations state administra- agencies. tive 473 Mich 667 (4) property rights He would not alter the law of littoral in

Michigan where current law allows owners rights by simple observation, to ascertain their and new law would require parties photographs these same to utilize “aerial ... a government survey map photo- ... and [three-dimensional] stereo graphs” rights, thereby encouraging in order to ascertain their erection of fences. (5) property rights He would not alter the law of littoral Michigan history where such has law served for most of this state’s protect private property rights rights both to and the engage Lakes, including in reasonable use of the Great beach-

walking. Accordingly, part part he affirm in would reverse Appeals decision of the Court of and remand to the trial court to apply principles opinion. set forth in his

Reversed and remanded to the trial court. — — — Waters and Watercourses Great Lakes Beaches Public Trust Doctrine. private property Michigan abutting any A owner of of the Great ownership Lakes has full property, in the littoral public rights up in the lakes and their shores ordinary high mark;.the prevent water landowner cannot enjoying rights preserved member of the from doctrine, including to walk below the ordinary high mark; ordinary high water mark is the point up on presence the bank or shore to which the and action of the water is so continuous as to leave a distinct mark erosion, vegetation, easily destruction of terrestrial or other recognized characteristic. Burt, Weiner & (by EC. Burt), Pamela S. for the plaintiff.

Braun Kendrick Finkbeiner (by P.L.C. Scott C. Strat- tard) for the defendants.

Amici Curiae: Cox,

Michael A. Attorney General, Thomas L. Casey, General, Solicitor and S. Peter and Manning Sara R. v Goeckel Glass Gosman, General, for Attorneys Depart- Assistant and the Quality Department ment of Environmental Natural Resources. III) (by Gray Michigan James A. for Long

Butzel Land Use Institute. Michigan Mulcrone for Senate Demo-

John William cratic Caucus. Falk, Falk), and Nancie (by

Allan EC. Allan G. Property Rights. Marzulla for Defenders of Smith, Martin, Knier, & David L. (by Powers EC. Powers), for Save Our Shoreline and Great Lakes Coa- lition, Inc. Kelley Represen-

Frank J. and Cawthorne for Kelley Palmer, Acciavatti, Amos, tatives Brian Daniel Fran Ball, Baxter, Booher, Richard Rick Darwin Jack Bran- Drolet, denburg, Casperson, Tom Leon Edward Green, Garfield, Gosselin, Kevin Gaffney, John Robert Hune, Hildenbrand, Dave Jack Joe Rick Hoogendyk, Jones, Kahn, Law, Roger Philip LaJoy, David Jim Mar- Mortimer, Nitz, leau, Leslie Neal John Meyer, Tom Pastor, Pavlov, Pearce, iy Phil Tom John Proos David Shaffer, Robertson, Schuitmaker, Rick Fulton Tonya Sheen, Stahl, Stakoe, Steil, Shelley John John Glenn Wenke, Tauh, Veen, Lorence and Barb Vander Barcia. Senator Jim (by Beckett & Jones PLC Fredric N. Meyers

Mika Redick) Horn, A. and Ronald M. Goldberg, William Commerce, Chamber of National Federation Michigan Foundation, Michigan Independent Legal Business Motel, Association, Michigan Hotel, Bankers Resort Association. Opinion ^[473] Mich ^[667] Court

Chris A. of the Mitt Tip Watershed Coun- Shafer cil. D. Hall

Noah for National Wildlife Federation and Michigan United Conservation Clubs. J. The presented issue this case is CORRIGAN, public

whether the has a to walk right along shores of the Great a private Lakes where landowner ostensi- bly title edge. holds water’s To resolve this issue (1) we must consider two component questions: how the private title; trust doctrine affects littoral1 (2) whether the public encompasses walking among rights protected by the public trust doсtrine.

Despite the competing legal theory offered by Justice our Court unanimously agrees that plaintiff MARKMAN, does not interfere with property rights defendants’ when she walks within the area of the public trust. Yet insist, we decline to as do Justices MARKMAN and YOUNG, that submersion2 at a given moment defines the bound- usage distinguishes Modern “riparian,” between “littoral” and with applying applying the former to seas and their coasts and the latter (7th ed). Dictionary rivers streams. Black’sLaw Our case law has not always precisely distinguished between the two terms. Consistent with recognition our applies that the common law the sea to our Great Lakes, People Silberwood, 103, 108; (1896), see 110 Mich 67 NW 1087 citing Illinois, 387, 437; 110; Illinois Central R Co v 146 US 13 S L Ct (1892), Ed 1018 we property. will describe defendants’ as littoral Although attempted consistency terminology we have to retain throughout discussion, employ our “riparian” we will at times the term language previously employed when the facts or the so dictate. For example, riparian. littoral owner of on the Great Lakes holds consequence owning property. Weber, aas waterfront See Hilt v (1930). 198, 225; 252 Mich 233 NW 159 that, colleagues, We “submerged note in the view of our land” water, includes not land that lies beneath visible but wet sands that post are “infused with water.” See at 744. v Goeckel Glass Opinion of the Court cannot leave Similarly, trust. we ary to littoral Appeals the Court of award uncorrected of exclusive use” down to “right landowners of a private the balance edge, upset water’s which between along our Great Lakes public rights title and quiet quo. status disrupted previously that she has the Plaintiff Joan Glass asserts Lake Huron. Littoral landowners defen- along walk maintain that dants Richard and Kathleen Goeckel on their land when she plaintiff trespasses private Plaintiff argues walks the shoreline. doctrine, legal principle

trust which is a as old as itself, Submerged common law and the Great Lakes (GLSLA), protect Lands Act MCL 324.32501 et seq.,3 right along her to the shore of Lake Huron walk unimpeded by private title of littoral landowners. Plaintiff that the doctrine and the contends trust preserve public rights the Great Lakes and GLSLA their that limit any private property rights shores enjoyed by defendants.

Although plaintiffs we find reliance on the GLSLA misplaced, we conclude that trust doctrine protect along does her to walk the shores of the Great Lakes. American law has long recognized large navigable water, oceans, bodies of are such as natural and thoroughfares belong resources to the public. tradition, state, our common-law as sovereign, rights acts as trustee of these natural resources. Consequently, state lacks power conveying to diminish those when littoral private doctrine,” parties. “public This Supreme as the United States Court stated Illinois Act, Submerged formerly Lakes Lands MCL 322.701 et Great Michigan’s seq., part is now Natural Resources and Environmental Act, seq. Protection MCL 324.101 et 473 Mich 667

Opinion of the Court Illinois, 387, 435; 110; Central RCov 146 US 13 S Ct (1892) (Illinois I), L Ed 1018 Central and as recognized Wallace, 14, 16-23; our Court in Nedtweg 237 Mich (1926), applies oceans, NW not to the but also to the Great Lakes. longstanding doctrine,

Pursuant to this when the (or state entities that predated our state’s admission Union) conveyed private littoral parties, that property remained to the public trust. In case, the property now owned defendants was originally conveyed subject to specific public trust rights in Lake Huron and its shores up ordinary high water mark. The ordinary high lies, water mark by Wisconsin, described another state, Great Lakes “ presence where ‘the and action of the water is so continuous as to leave distinct mark by erosion, either destruction of terrestrial vegetation, or easily other ” recognized characteristic.’ v Trudeau, State 139 Wis (1987) (citation omitted).4 91, 102; 2d 408 NW2d 337 Consequently, although defendants retain full rights of ownership in their littoral property, they hold these rights subject to the public trust. hold, therefore,

We that defendants cannot prevent plaintiff from enjoying the rights preserved public trust doctrine. Because walking along the lake- shore is inherent in the exercise of traditionally pro- tected public rights of fishing, hunting, and navigation, our trust permits doctrine pedestrian use of our Lakes, Great to and up including the land below the similarly entirety We refer to a situated sister state not for the of its doctrine, long employed but for a credible definition of a term jurisprudence. Despite protestation in our Justice Markman’s upset over see, e.g., post ting rules, settled we have recourse to this Young, persuasive because, definition as noted Justice this area of law receiving has been precise characterized critical terms less than post definition. See at 704. v Goeckel Glass Opinion of the Court Therefore, any like ordinary high plaintiff, water mark. along to walk public, enjoys right member ordinary land of Lake Huron on lakeward shore judgment reverse the Accordingly, mark. we high water case to the trial Appeals the Court of and remand this opin- consistent with this proceedings court for further ion.

FACTSAND PROCEDURALHISTORY Lake Defendants own on the shore of Hu- property ron, and their deed defines one as “the line of Lake Huron.”5 Plaintiff owns meander from defendants’ lakefront highway located across dispute as a over an originally home. This case arose deed for a fifteen- express provides easement. Plaintiffs ingress “for foot easement across defendants’ Huron,” that she egress to Lake and she asserts family and her members have used the easement con- sistently gain since 1967 to access to the lake. The dispute plain- have since resolved their about parties use of that tiffs easement. plain- concerns a different issue: present appeal

This along as a member to walk tiffs Huron, of defendants’ irrespective shoreline of Lake below, During proceedings plaintiff title. private interfering from with her sought enjoin defendants sought Defendants sum- walking along shoreline. 2.116(C)(8) (9), under MCR mary disposition may a claim which relief be upon failure to state hy parties terms of the deed which that the do not contest the We note given property. that defendants hold defendants own their We take property according to the terms of their deed. record title to their meaning any argument “meander over the of the term does not reflect is not how far defendants’ line” in this context. The issue before us extends, private trust affects that title. title but how the littoral 473 Mich 667 [July-

Opinion of the Court granted and for failure to state a defense. Defendants that, law, argued as a matter of plaintiff could not walk on defendants’ between ordinary water mark and the lake without permis- defendants’ sion.

The trial court granted plaintiff summary disposition 2.116(1) (2). under MCR Although the court concluded that no clear precedent issue, controls resolution of the it held that plaintiff had the right walk “lakewards of ordinary the natural high water mark” as defined the GLSLA. Appeals Court of reversed trial court’s order published

in a opinion. 262 Mich App 29; 683 NW2d 719 (2004). It stated “[t]hat the state of Michigan holds in the submerged lands beneath the Great Lakes within its borders for the free and uninterrupted navi- ...” Id. at 42. The gation of the . that, Court held apart issues, from navigational the state holds title to previously land, submerged subject to the exclusive use of the riparian owner Id. at 43. up edge. water’s Thus, under the Court of Appeals analysis, neither plaintiff any nor 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. subsequently granted

We leave to appeal. 471 Mich (2004).

STANDARD OF REVIEW We review de grant novo the or denial of a motion for Rozwood, Maiden v summary disposition. 461 Mich (1999). 109, 118; 597 NW2d 817 In a motion under MCR 2.116(C)(8), well-pleaded “[a]ll factual allegations are accepted as true and construed in a light most favorable Maiden, to the nonmovant.” supra at 119. As we stated Ass’n, Nasser v Auto Club Ins 47; 435 Mich Glass v Goeckel Opinion of the Court (1990), summary disposition “a motion NW2d 2.116(C)(9) solely by reference MCR is tested under parties’ pleadings.”

ANALYSIS THE DOCTRINE I. THE HISTORY OF PUBLIC TRUST history of American law as de- Throughout law, from common our courts have English scended pro- and recognized sovereign preserve that must obligation This navigable people. tect waters for its Justinian, Emperor to the Roman whose traces back are, things “Now the which provided, Institutes air, law, running common to all are these: the natural Thus, sea, and the seashores. no water, the therefore Justinian, one is barred access to seashore....” Thomas, Institutes, II, I, 1,§ title as translated in book Justinian, Text, Translation and Com- The Institutes of (Amsterdam: Publishing Com- mentary North-Holland 1975), 65; Powell, Real pany, p Property, see also 9 65.03(2), 2, § n a different translation. p quoting 65-39 sea, developed through English The law of the that law, incorporated understanding common sea, the title and the dominion of the and of rivers and both sea, flows, the tide ebbs and and of all arms of where mark, jurisdiction the lands below within waters, England, King. Such and the Crown of are times, cover, they either at all or at least the lands which in, ordinary private and incapable the tide is are when improvement; and their natu- occupation, cultivation and nature, high- in their for primary ral and uses are commerce, foreign, ways navigation and domestic and King’s subjects. purpose fishing for the all the title, belongs jus privatum, lands . .. Therefore the such thereof, jus King sovereign; dominion as the and the representative of the publicum, vested in him as the 678 Mich 667 473 Opinion of the Court

nation [Shively Bowlby, benefit. v (1894).] 1, 11; 548; US 14 S Ct L38 Ed 331 This rule —that the sovereign sedulously guard must public’s interest for navigation seas fishing passed from English courts to the American —

colonies, to the Territory, and, Northwest ultimately, to Michigan. 17; See Nedtweg, supra at accord Phillips Petroleum Co v Mississippi, 469, 473-474; 484 US 108 S 791; Ct L (1988), 98 Ed 2d 877 quoting Shively, supra 57.

Michigan’s recognized courts principles guaranteed public rights in the seas apply equal with Thus, force to the Great Lakes. we have held that the common law of the sea applies to the Great Lakes. See Weber, Hilt v 198, 213, 217; Mich NW (1930); Silberwood, People 108; 110 Mich 67 NW (1896). In particular, we have held that the trust doctrine from the common law of the sea applies to the Great Lakes.6 See Nedtweg, supra 16-23; at Silberwood, 108; at supra State v Venice America of Co, 680, 702; Land 160 Mich (1910); 125 NW 770 accord I, Illinois Central supra at 437.

Accordingly, under longstanding principles of Michi- gan’s law, state, common sovereign, as an has obligation protect to and preserve the waters of the Great Lakes and the lands beneath them for the public.7 6 decision, public In this we consider the trust doctrine as it has applied applied to the Great Lakes and do not consider it how has to inland bodies of water. 7 Although implicated case, not in this we note that the Great Lakes and the navigational lands beneath them remain to the federal preserves servitude. government This servitude for the federal control of navigable purpose all regulating improving waters “for the navigation States, 269, 271-272; ... .” v Gibson United 166 US 17 S Ct (1897). 578; “[A]lthough 41 L Ed submerged 996 the title to the shore and them, soil is in the various States and individual owners under it is 679 v Goeckel Glass Opinion of the Court effect, rights serves, in as the trustee The state boating for fishing, hunting, in Lakes the Great 16; at Venice Nedtweg, supra pleasure. See commerce 702; State v Lake St Clair Co, Land America of Fishing 586; Club, 580, 87 NW 127 Mich Shooting & 375, 388; Davis, Mich 19 NW (1901); Lincoln v 53 (1884). duty this relinquish cannot state, sovereign, The and their in the Great public rights Lakes preserve to in at 17: Nedtweg, supra As we stated natural resources. not, may by grant, surrender such State police power or any it can abdicate the rights more than not power government. But this does essential other times, must, propri- at all remain the mean that the State over, underlying of, sovereign the soil etor as well as the Michigan has an un- navigable The State of waters.... ownership of right proprietary make use of its doubted to [subject only paramount question, to the land enjoy of the trust. public [to] the benefit of] the authority to the state retains the Therefore, although it neces- private parties, convey lakefront trust. sarily conveys property subject such a distinction law, our courts articulated At common capture jus publicum jus privatum between private the alienation of littoral principle: lake and its leaves intact parties 20; at McMorran Nedtweg, supra land. See submerged 301, 313; Co, 201 Mich 167 NW v C H Little Milling Co 506-507; Jackson, (1918); v 69 Mich Sterling (1888) also (CAMPBELL, J., dissenting); see 37 NW 845 (1926) 38, 55; 211 Gerhardt, Mich NW Collins navigation respect created in favor of always subject to the servitude Apart by from this government Id. 272. the Constitution.” the Federal any relinquished state servitude, government to the has the federal rights 1311. remaining ownership in Lakes. See 43 USC the Great 680 473 Mich 667 Opinion of the Court (FELLOWS, J., concurring) (recognizing “different rights character” held the federal by government as and as an proprietor navigable trustee in inland (1860) stream); 18, v Benson, Lorman 8 Mich 27-28 (reciting the common-law distinction between jus pub- licum and in a of jus involving case privatum ownership riverbed).8

Jus refers to in publicum public navigable waters;9 waters and the land covered those jus contrast, privatum, private property rights refers to held subject trust.10 As the United States Supreme explained Court in Shively, supra at 13:

,. England, Hale, from the time of it Lord has been sea, treated as settled that the title in soil of or of sea, mark, ordinary high arms of the below the is in King, so except corporation far as an or a individual has in it acquired rights express grant or prescription or title, usage; jus privatum, and that whether in the subject, King or in public right, jus is held publicum, navigation fishing. [Citations omitted.] 8 Indeed, recognize private other states also the distinction between public rights. See, e.g., Longshore, 414, title and v State Wаsh 2d (“The (2000) 427; ownership 5 P3d 1256 state’s of tidelands and comprised jus aspects privatum shorelands is of two distinct —the jus publicum.”)-, State, 737, 739-740; Smith v 153 AD2d 545 NYS2d (1989) (“This grows concept doctrine out of the common-law jus publicum, right navigation fishery super which (citations ofjus private right privatum.”) omitted); sedes a Bell v Town 1989) Wells, (Me, (stating 557 A2d 172-173 that the different types day); of title in the same shore “remain force” to this Slips State, 497, 509-510; see also R W Docks& 244 Wis 2d 628 NW2d (2001) (applying adopted trust doctrine as in its state constitution). (7th Dictionary ed), defining “jus publicum” See Black’s Law as right, title, public ownership; “[t]he esp., govern or dominion of ment’s real to own trust for the benefit.” id.., “jus privatum” title, defining right, “[t]he See dominion private ownership.” Glass v Goeckel

Opinion of the Court Thus, littoral from private party acquires when Our privatum. the it the sovereign, acquires jus recognize continued to this distinction be- courts have they and when have private public rights tween title in certain public the trust doctrine. Public applied them of access to the waters and lands beneath types public remain under the of the state. Under the protection doctrine, the sovereign power trust the never had any subsequent conveyances eliminate those so rights, subject public rights. remain to those See littoral 17; at see also ex rel Director Nedtweg, supra People Broedell, 205; 112 Conservation v 365 Mich NW2d (1961). always littoral landowners have Consequently, public rights pre- taken title to the limitation of under the trust doctrine. served

II. THE SCOPE OF THE PUBLIC TRUST DOCTRINE that the trust doctrine Having established in this Michigan, required and well in we are alive Michigan: of the doctrine in scope to examine appeal mark ordinary high it water up whether extends whether, argue, applies only it to land as defendants of the Lakes at actually that is below waters Great any moment. particular THE LAKES SUBMERGED LANDS ACT

A. GREAT Legislature defined argues Plaintiff doctrine and established scope trust GLSLA, sup- in the thus outer limits of the doctrine act, according plaintiff, our case law. This planting intent to claim all land lakeward legislative manifests a Thus, mark. claims ordinary high plaintiff water to all land below the trust extends act, mark as defined which ordinary high water mark ordinary high-water shall be states that “the level, international above sea following elevations 473 Mich 667 [July- Opinion of the Court feet; Superior, Great Lakes datum 1955: Lake 601.5 Clair, Huron, feet; Lakes Lake Michigan 579.8 St. feet; Erie, Lake 574.7 571.6 feet.” MCL 324.32502. find plaintiffs We reliance on GLSLA to be First, misplaced. the act not show a legislative does intent to all land ordinary to take title lakeward provides: MCL mark. 324.32502 part

The lands covered affected are all of the unpatented unpatented lake bottomlands and made lands Lakes, including bays the Great and harbors of the Great Lakes, by it, including belonging to the state or held artificially those lands that have been filled in. The waters by part covered and affected this all of the are waters of the Great the of the part Lakes within boundaries state. This preserve protect shall be so as to construed and the interests general public of the in the lands and waters described in this section, sale, lease, provide exchange, for the or other disposition unpatented private public lands the or and use lands, unpatented of waters and patented permit over and to filling patented the submerged lands whenever it by department private public determined the that the or use substantially of those lands and waters will not affect the hunting, fishing, use of those lands for and waters swimming, pleasure boating, navigation or or that the by impaired agreements the state will not be those use, sales, lease, disposition. or other The or word “land” part “lands” as in this used refers to aforesaid described unpatented unpatented lake bottomlands and made lands patented and bays lands the Great Lakes and the and lying harbors of the Lakes and Great below lakeward of the ordinary high-water mark, natural part but this does not rights affect secured of a swamp grant virtue land acquired occurring through ‍​‌​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌​‌​​‌‌​​‌​​‌‌​‌​‌​‌​‌​​‌‍accretions natural ordinary purposes part, means or reliction. For high-water following shall mark be at the elevations above sea level, Great Supe- international Lakes datum 1955: Lake rior, feet; Huron, feet; Michigan 601.5 Lakes and 579.8 Lake Clair, Erie, St. 574.7 and Lake feet: 571.6 feet. v Goeckel Glass Opinion of the Court applies the act of this section states first sentence “unpatented and lake bottomlands” “unpatented only however, sentence, defines The fourth lands.” made not including in the act as or “lands” “land” sen in the first lands described and made bottomlands Lakes and the in the Great lands tence, “patented also but lying below Lakes harbors of Great bays and mark----”11 ordinary high-water the natural lakeward of (the lake land owned Thus, publicly act covers both in the first lands described and made bottomlands sentence) that was once land owned privately ordinary land below (patented state owned mark). words, the act reiterates In other high water jus pub the inalienable trustee of authority as state’s privately publicly over both licum, which extends to alter the makes no claims lands. The act owned landown of individual jus privatum of the delineation ers. to establish

Moreover, purports the act never Rather, estab- trust. the GLSLA boundaries authority regulatory scope lishes trust doc- exercises, pursuant Legislature merely regulate the Indeed, of the act trine. most sections mark.12 ordinary high water land below the use of government conveys patent “[a]n is instrument which A land (7th Dictionary person.” grant public private Black’s Law land to a a of ed), p 1147. Department provides of Environmental that Section 32503 regarding (DEQ) may agreements use or alienate Quality land enter into public doing impair not “the unpatented extent that so will land to the governs appli .. ..” MCL 324.32503. Section trust in the waters unpatented Section lands. MCL 324.32504. for deeds or leases to cations lighthouses. MCL and maintenance concerns the restoration 32504a unpatented and lake bottomlands 32505 covers Section 324.32504a. conveyed may lands, providing again that such lands be unpatented made substantially injured.” impaired long not be or trust “will as the through the valuation of 32509 concern Sections 32506 MCL 324.32505. 473 Mich 667 Opinion of the Court

The section of the act that purports to deal with § 32511, MCL 324.32511: riparian may

A apply department owner for a recording certificate suitable for indicating the location of boundary indicating his or her lakeward or that the land involved has accreted to his or her as a result of lawful, natural placement accretions or of a permanent application structure. The accompanied shall be a fee of proof upland $200.00 and ownership.

As previously, shown a vital distinction in law exists between private title (jus privatum) and public rights those that limit that title (jus publicum). Section 32511 only establishes a mechanism for land- certify owners to the boundary of their private property (jus privatum). of the public trust (jus publicum) from a boundary private on littoral —distinct separate title —remains a question, a question that the act not does answer.

Finally, plaintiff also relies on the following language § 32502 to argue the GLSLA establishes the scope public trust doctrine: part [the This GLSLA] shall be construed so as to preserve protect general the interests of the public in section, lands and waters provide described sale, lease, exchange, for the or other disposition unpat- private ented lands and the use of waters over unpatented (with lands and § various administrative matters delegating authority promulgate DEQ). rules to the MCL 324.32506 through 324.32509. Section 32510 establishes violation of the act punishable by imprisonment is misdemeanor or a fine. MCL 324.32510. 32512, 324.32512, Prohibited § acts are defined in 32512a, § MCL with 324.32512a, specifically focusing MCL vegetation. on the removal of matters, Sections 32513 and 32514 return to administrative such as applications permits hearing. notice of MCL 324.32513 and 32515, 324.32515, enlargement 324.32514. Section MCL deals with waterways, 324.32516, § again MCL returns to the removal of vegetation. 685 Glass Goeckel Opinion the Court of lands, filling in permit and to the unpatented patented and it is determined submerged lands whenever patented of public use of those lands private the or department the substantially public affect the use not and waters will swimming, hunting, fishing, for those lands waters navigation public that the trust boating, or pleasure use, agreements by those impaired not be the state will sales, lease, disposition.[13] or other misplaced. section is reliance on this Again, plaintiffs construed to the act will be This sentence states rule of construction interest. But that public the protect whether the and cannot resolve begs question the in the first an interest in a littoral has public the trust expand public no reason to provides It place. Thus, law. we at common beyond the limits established precise scope to determine the must look elsewhere § 32502 refers.14 trust to which public the AS APPLIED TO PUBLIC TRUST DOCTRINE B. THE THE GREAT LAKES the scope not define the does Because GLSLA again we must turn Michigan, doctrine in public trust to our common law. oceans, doctrine to the

In trust applying traditionally rights protected held that have courts themselves and extend from the waters this doctrine the shore called point them to a on the lands beneath 13 MCL 324.32502. 14 recognized contexts as Legislature trust in other has 1913, Legislature provision early had made for the As

well. entrusting preservation trust lands disposition 326, predecessor See 1913 PA of the DEQ. to the care of waters (upholding Nedtweg, supra seq.; 20 also 1915 CL 606 et see yield any constitutionality authorized uses would act because addition, conveyed Legislature “rights public”). has though only private parties, shoreline to of the lakes and small fractions ensuring conveyances trust. did not disturb that such after 31; 41; See, PA 84. e.g., PA 1959 PA 1959 1954 Mich

Opinion of the Court “ordinary See, e.g., water mark.” Shively, 13; Jordan, 371, 381; supra at Hardin v 140 US 11 S Ct (1891); 808; L Ed Hargrave’s see also Law (“ Tracts, 11, 12, at 12 quoted Shively, ‘The that ground ordinary shore is that is between the high low ground belongs [and water and water mark this ”). sovereign.]’ the Supreme The United States Court concept “high described common-law of the water Consolidated, mark” in Borax Ltd v Angeles, Los 296 (1935): 22-23; 23; 10, US 56 80 L Ed S Ct 9 high tideland the extеnds to water This mark. does physical by ... a upon ground not mean mark made the the waters; it high means the of line water as determined By law, of the the course tides. the civil the shore extends as highest far the as waves reach in But winter. the law, the common shore “is confined to the flux and reflux of ordinary at ordinary the sea It is the tides.” land “between mark, high daily and low-water the land over the which When, therefore, sea, bay, tides ebb flow. the or a is a boundary, ordinary named as high-water the line of mark always is intended prevails.” [Ci- where common law . omitted.] tations

An “ordinary high mark” water has an therefore intui meaning tive when to tidal applied waters. Because of influence, flow, lunar ocean waves ebb and thus reach ing one on the at point shore low tide and reaching a more point high landward at tide. The latter constitutes water high mark on a tidal shore. The land between this mark mark submerged low water on a regular basis, and so remains public See, doctrine as land.” “submerged e.g., Illinois Central 646, R Cov Chicago, 660; 509; 176 US S Ct L Ed (1900) (Illinois II) (“But Central equally it is well that, settled any the absence of local or usage, statute grant of pass lands the State does not title to ....”). lands submerged high [the] below water mark (Citations added.) omitted; emphasis v Glass Goeckel Opinion the Court ordinary high adopted Michigan’s have courts boundary public landward mark as the water example, domain case concern- in an eminent For trust. Michigan, bay ing property held of Lake we on a high ordinary mark. water at the end Dep’t Resources, 446 Mich Natural Peterman (1994).15Thus, we awarded 198-199; 521 NW2d plaintiffs damages for destruction ordinary high from mark that resulted water above (which undisputedly by the state occurred construction trust). Similarly, Id. in the water within control asserted its where state in an earlier case portion of littoral trust doctrine over under the high employed property, mark also the Court America trust. Venice Co, Land 701-702. Michigan suggested previously has Our Court ambiguity regarding whether law leaves some boundary, public mark as the or low water serves supra But the estab- Broedell, at 205-206. trust. See jurisprudence public between in trust lished distinction private (jus pri- public (jus publicum) title and vatum) ambiguity. apparent Cases that resolves this public suggest, the trust blush, at that to first seem actually considered the the mark at low water ends (jus property private boundary of the littoral owner’s boundary public privatum) the trust of rather than public (jus publicum).16 doctrine trust Because 15 unique simply “navigational servitude” relied not on a This decision public case, “navigational in the servitude” but rooted that to that 45-46; 22, Collins, supra citing at Venice id. at 194 n doctrine. See of Co, Nedtweg, supra supra; at 16-17. America Land 16 (1922) (resolving Menacon, 684; 655 220 Mich 190 NW La Porte v See bounding and dispute private a deed term landowners over a between Club, Shooting mark); Fishing & Lake St Clair at the low water boundary private 587, (setting title at the low supra of 594-595 at 473 Mich

Opinion of the Court preserves public rights from separate a landowner’s fee title, the boundary of the public trust need not equate the boundary with of a littoral landowner’s title. Rather, a landowner’s littoral title might past extend the boundary of the public trust.17 Our case law no- boundary stream. ring), water mark); Lincoln, supra made Central I other government jurisdictions our Court differed and used the mark, the federal private title, while ID; Silberwood, supra retained). that a government, simultaneously endorsing Shively at 384 but that case involved riparian In Collins, (considering rather than the owner’s fee ends at the supra at high the boundaries of a at (reciting water mark as the (Fellows, boundary on an inland and Illinois holdings J., low on what concur- water grant of People Warner, 228, In 239; (1898), 116 Mich 74 NW 705 the Court appeared place single boundary riparian between the owner’s title control, stating adjoining and state proprietor’s “[t]he stops [at fee high mark], or low begins.” water and there that of the State Yet this boundary private marks “the ownership.” limit of Id. This recalls the fact might proprietary or, that the state separate title, hold title from that preserve title as trustee to the waters lands beneath them on behalf public. proceeded distinguish The Court the state’s interest in public navigation, fish, waters from the interest of the and fowl.Id. Thus, context, recognized boundary Warner Court riparian on a title, public a title that remained trust. But the Court did equate not with the limit of the trust. 17Although case, in the context of an inland stream Justice Fellows possibility noted the different boundaries on the trust and riparian ownership concurring opinion Collins, in his 52, (Del quoting 1851): Polk, Super, Bickel v 5 Del right fishing “The in all streams where the tide ebbs flows, right, is a common adjoining and the owner of land tide water, though mark, his title runs to low water has not an right fishing; exclusive have the to take fish high mark, though upon below water belonging soil to the indi- vidual, trespassers doing; and would they not be in so but if take high mark, carry fish above water them above private property, mark and land them on this would be a tres- pass navigable rivers, .... flows, all where the tide ebbs and people privilege have of fishing, common of and of navigation, high mark; though between and low water it be over private soil.” Glass v Goeckel Opinion the Court necessarily ends where title suggests private that where the distinction we contrary, To the rights begin. rights title and private between have drawn publi- the jus jus privatum that demonstrates may overlap. cum overlap potential of the recognition does this

Nor binding on While not a novel invention. represent accommodated similarly courts have Michigan, other on fixing boundaries challenge practical the same acknowledged possibility they shifting waters: See, e.g., private title. rights coextensive with (1914) 60, 76; Korrer, Minn 148 NW 617 v State (Even ordinary low holds title to the riparian if a owner ordinary only to the mark, his title is absolute water intervening space shore be- mark and high water to the subject mark remains high and low water tween Shore, Inc v North see also rights public.); 1995) (ND, (stating Wakefield, NW2d held absolute riparian nor the owner neither the state mark); high interests between low water Shaffer Ass’n, Inc, 493, 496; 141 A2d 583 392 Pa Lake Baylor’s (1958) mark title held to low water (subjecting private mark); Flisrand v high rights up to public (1915) (same 457, 470-472; 152 Madson, 35 SD NW Co, 4th App v Humboldt 3 Cal Korrer, Bess supra); (1992) that it is (noting 2d 399 1544, 1549; Rptr 5 Cal title to the low water riparian “well established” trust between mark remained marks). and low water relied case, Appeals the Court

In the instant defen- on where on Hilt to set extensively (as a plaintiffs ended and where dants’ concern in Hilt began. But our public) member private a littoral landowner’s boundary of was the 473 Mich 667 Opinion of the Court title,18rather than the boundary of trust. See Hilt, (noting government at 206 that con- the Hilt veyed Indeed, title edge”). “to water’s Court endorsed the Nedtweg Court’s discussion of the decided the trust and issue on boundary privatе title littoral within the context of trust doctrine. See id. at 203, 224-225, 227.19 Conse- quently, the of Appeals Court erred granting defen- dants an right edge, exclusive of use down water’s because littoral remains to the public trust and because defendants hold title according to the terms of their deed.

Our public term, trust doctrine employs “the ordi- nary mark,” high water from the common law of the sea and it our applies to Great Lakes. While this term has to tidal an meaning obvious when applied waters with regularly recurring high tides, and low its to application nontidal like the waters Great Lakes is less apparent. See, e.g., Lincoln, supra (noting, at 385 amidst a dis- cussion of the extent of private title, littoral some an imperfection in analogy between the Great Lakes oceans). Lakes, In the Great water levels change because of precipitation, pressure, barometric tides, other forces that lack regularity of lunar 18Moreover, particular private issue in Hilt was the land, title present on which is not at issue in the case. relicted!accreted by stating The Hilt Court concluded how trust doctrine riparian private affected a owner’s title: owner, upland general way, While the in a has full and exclusive land, enjoyment use, use especially of the relicted his its his it, develop title, freedom to sell the lack clouded of fee necessity resorting equity damages to to action instead of ejectment squatter, expel overhanging to and the threat of the occupy purposes. State, State’s claim of it for State except paramount purposes, for the make could no use of the 227.] [Id.

land .... Glass v Goeckel Opinion of the Court influence on exert a less noticeable themselves which Applying a term than on the oceans. the Great Lakes despite sea, the obvious from the common law Lakes, and the has the oceans Great difference between discontinuity terminology apparent in the led some Notwithstanding prior employed in some our case law. “ordinary high imprecision use, a term such as in its attempts encapsulate the fact mark” water fluctuate. This fluctua- levels in the Great Lakes may temporary exposure of land tion results in currently exposed lies. above where water then remain although immediately presently land, not This submerged, within the ambit falls permanently from that has not receded because the lake up may yet again point to that exert its influence (setting apart Nedtweg,supra point. from the at See exposed permanently land which is trust that and so “rendered suitable the “recession of water” ordinary high occupation”). Thus, the water human meaning applied Lakes to the Great mark still has land, even if not instanta- and marks submerged, neously trust. included within ordinary high state, Wisconsin, defines sister Our mark as water up presence point the bank or shore which on to leave a is so continuous as

and action of the water erosion, destruction of terrestrial mark either distinct And easily recognized characteristic. vegetation, or other any particular place is of such or shore at where the bank difficult to ascertain impossible that it is a character is, ordinary mark recourse high-water point where or shore of the same may places had to other on bаnk be given stage of water or lake to determine whether stream ordinary mark. Shoot- high-water [Diana or below is above (1914) 261, 272; 145 NW ing Husting, 156 Wis Club omitted).] (citation 473 MICH667 Opinion of Court Although Shooting river, Diana Club involved a Wis- applied consin has this definition not to inland waters, but also Great Lakes. See R Docks & W 508-510; Trudeau, at Slips, supra supra at 102.20This definition has served long a state with which share a we also border has an extensive Great Lakes shoreline.

Although we do not import our sister state’s trust doctrine where this has already Court we spoken, are persuaded adopt clarify this definition to a term used long but little defined in our jurisprudence. In- deed, definition ordinary high Wisconsin’s water mark is not far removed from meanings previously recognized Michigan. 324.30101(i);21 See MCL average public may require an While member of the not this degree precision, dispute Trudeau illustrates how a factual over the ordinary high may case, location be mark resolved. parties presented expert evidence via witnesses. Id. 108. For example, expert “analyzed the state’s he testified that several aerial , government photographs survey maps, present . . . the site’s configuration, photographs [three-dimensional] and stereo . ...” Id. provide guidance professionals. See, Numerous resources exist to e.g., Simpson, Surveying River & Lake Boundaries: Water (Kingman, Key Publishing, 1994); Boundaries —A Manual AZ: Plat (New Cole, 1997). Wiley Water Sons, Boundaries York: J & Not surprisingly, requires survey proper Court based on monuments Hines, to establish an actual line. Hurd v 346 Mich 7 - o r a 8 f by set one our Great Lakes. employed Enacted after the GLSLA a standard on based Interna Lakes, 324.30101(i), tional Great Lakes Datum the Great MCL which previously contains definitions found in the former Inland Lakes and Act, part provides: Streams in relevant “Ordinary-high upland mark” the line water means between persists through changes and bottomland that successive water levels, presence below which and action of the water is so common recurrent that the character land marked distinctly upland itself, apparent from the and is in the soil configuration soil, vegetation. of the surface of the and the Glass v Goeckel Opinion the Court (noting n 29 at 198 Peterman, supra 281.301(j); AC, R waters, now en inland regarding statutory definition the ordi considering 324.30101[i], when as MCL acted defini This Michigan). Lake mark on water nary high the federal employed parallels tion also 328.3(e).22 Thus, we See, 33 CFR e.g., government. mark” water “ordinary high meaning of clarify the another has served a definition that consistently with and is years hundred for some Lakes state Great in our own development term’s limited with the accord state. “ordinary high water the term concepts

The behind first state constant since have remained mark” on boundaries present: up the Union entered in the Great Lakes levels dynamic are and water aforementioned factors this, light fluctuate.23 328.3(e) provides: 33 CFR ordinary high that line on the water mark means The term indicated of water and the fluctuations shore established clear, impressed on line physical such as natural characteristics soil, bank, shelving, changes destruction of in the character of debris, presence or other vegetation, litter and terrestrial of the sur- appropriate consider the characteristics means that rounding areas. consistently recognized, neces water boundaries our Cоurt has As Hilt, example, sarily defy at 219. For definition. See static recognized riparian rights reliction. This to accretion and law common adjacent gained private to land riparian title landowners meant through exposed permanently gradually property that became their Peterman, supra change at 192-193. level. See or a in water erosion riparian rights courts have refused recognition shows that our of these concept Also, processes. of a “moveable fix line that defies natural and reliction on the of accretion the effects freehold” to accommodate shifting acknowledgement of the nature shows our bounds of littoral title 262, 275-276; Danowski, id., 373 Mich See Klais v boundaries. of water Hilt, supra Broedell, quoting (1964), supra at all 129 NW2d 414 219. 473 Mich 667 Opinion of the Court to identify ordinary high mark,

will serve water but precise ordinary high location of the water mark at any given site on the of shores our Lakes Great remains question fact.

III. THE PUBLIC TRUST INCLUDES WALKING WITHIN ITS BOUNDARIES far private We have established thus that the title of littoral landowners public remains trust ordinary beneath the water high plaintiff, mark. But as public, may a member walk the ordinary below mark only if that practice receives the protection of the public trust doctrine. We hold that (as walking along shore, subject regulation is any trust) public rights exercise of in the public falls within scope public trust. reiterate, To trust doctrine serves to protect resources —here the waters of the Great Lakes submerged their lands —shared in common public. pp See this opinion; 678-679 of see also Veniceof Co, America Land supra at that “the (noting State Michigan holds these lands in trust use and benefit of its As people”). trustee, the state must preserve protect specific rights below the ordinary high may water mark and permit only those private uses that do not interfere with these traditional the public notions of See trust. Obrecht v Nat’l Gypsum (1960). Co, 399, 412-413; 361 Mich 105 NW2d 143 Yet its status as trustee not permit state, does through any of its branches of government, to secure to itself rights held littoral Hilt, owners. supra See (“The honest.”).24 at 224 state must be Hilt, example, riparian rights For we noted several riparian held rights landowners whose abuts water. These general purposes, bathing, “[u]se include the the water for domestic Glass Goeckel Opinion of the Court walking contests party note that neither firstWe under traditionally protected within falls where, Rather, they dispute doctrine. our literal wa- the whether, may walk: below plaintiff not mark. water While ordinary high or the edge ter’s below cannot determine point on this agreement parties’ the indicate does agreement rights, scope public the of walking assumption: sense of a common the existence of in the exercise is inherent the lakeshore along rights. traditionally public protected rights pro- articulated traditionally Our courts have hunting, fishing, as trust doctrine by public tected Nedtweg, or See pleasure. for commerce navigation and 702; Co, at supra America Land 16; at Venice supra of 586; Club, at supra & Fishing Shooting Clair Lake St Lincoln, at 388.25 specifically activities in these engage

In order to must doctrine, the public trust public protected ordinary land of over below right passage have a recognized Indeed, courts have other mark. trust. their public with protected of as “right passage” 578; A 573, 109 Resnick, 94 Conn Orange See Town of (1920) boating, “fishing, public rights (listing 864 seаweed, shellfish, gathering taking hunting, bathing, Arnold v repassing”); and . . . cutting sedge passing navigable [,]... [,]... wharfling] navigability [a]ccess to use, out to etc. omitted.) (Citations More- [, right to accretions.” and]... [t]he waters taking of property, or destruction over, “[r]iparian rights for the are made, has a real compensation unless the use must be State which Id.-, purpose.” see also paramount trust relation to a and substantial recognized Thus, long the value Peterman, supra we have at 191. “paramount” rights to the rights, remain ever riparian but those public trust. or, might in the public cut ice Indeed, that the noted we have even waters, logs Lake St Clair might See float downriver. inland context of Rapids Booming 587; Co v Club, supra Fishing Shooting Grand & (1874). 308, Jarvis, 30 Mich 473 Mich 667 Opinion of the Court (1821) 1, 6 NJL Mundy, (reserving public use of “purposes passing repassing, waters sustenance”). navigation, fishing, fowling, [and] protect We can traditional under our doctrine simultaneously safeguard- trust ing activities inherent in the rights. exercise of those General, See, e.g., Attorney ex rel Director Conserva- 432, tion v 435, 443; 306 Mich Taggart, NW2d 193 (1943) wading in (permitting a stream pursuant doctrine). Walking the lakeshore below the high water ordinary just mark is such an activity, gaining because to hunt, fish, access to Great Lakes required boat to reach water.26 walking Conse- quently, always has held a passage in along lakes. joined Union,

Even our before state the North- iy west Ordinance of art protected our Great navigable “The leading Lakes trust: waters into the Lawrence, Mississippi St. and the carrying places same, between the shall be highways common forever . . . .” Ordinance free See of 1787, Northwest art protect IV Given that we must the Great Lakes as highways,” id., “common acknowledge see we that our public doctrine permits pedestrian trust use-in and of itself-of Lakes, up our Great to and including the land ordinary below the mark. Hilt, 226,

Yet in at our supra Court noted the rule stated Supreme Wisconsin Court Doemel v (1923): Jantz, 225; 180 Wis 193 NW 393 public “[T]he has no right passage dry over land between low and high-water mark but the exclusive riparian use is owner .” context, . . . When read in quotation this does imply right public, i.e., right This does not a lateral access in land traverse the of littoral to reach owners the lands waters held See, e.g., Collins, supra in trust. at 49. Glass v Goeckel Opinion Court of the walking impermissible as rejection represent not by Justice correctly As described trust. public within our of its the Hilt Court part cited this passage MARKMAN, Court’s cor- Michigan Supreme regarding the discussion law.27See from the common departure an earlier rection of rule adopting than that But rather post at 745-747. rule, among Doemel, the Hilt Court listed from the state held “sub- others, refute the notion lands in the lakes and the title” stantially absolute Hilt, Instead, 224. “the State at them. beneath id., sovereign capacity,” pursuant title in its has “the of the Consequently, trust doctrine. public lake, for the trust except to use bed State riparian to that of the owner.” is subordinate purposes, In light Orange, supra Town at 578. Id. 226, citing trust, littoral owners’ public for the exception of this (by in the same supersede public rights rights only to the extent ownership) of their virtue public not contravene rights do littoral owners’ the Hilt Court id. When recognized trust. See owners, it did not of littoral greater from preclude trust alter it. walking within By no means two caveats. must conclude with

We permit every doctrine use our trust does Rather, protects this doctrine lands and waters. create an and it does not public rights, limited land below the private to access public right unlimited Brown, Mich Ryan mark. See ordinary high water (1869). serve trust doctrine cannot The by fixing Kavanaugh departed from the common law cases by fixing the private title and on littoral meander fine as the subsequent physical fine, regardless of legal that of land below status Rabior, Hilt, 213; Kavanaugh 222 Mich v changes. at see also See Baird, 240; (1923); Kavanaugh 241 Mich 217 NW 68; 192 NW (1928). 473 Mich Opinion of the Court any justify private Finally, on trespass property. rights

exercise of these traditional remains sub- ject regulation by Legislature. to criminal or civil TO

TVRESPONSE OUR COLLEAGUES unanimously Our Court that agrees defendants can- not prevent walking from plaintiff along the shore Lake Despite Huron within area of the trust. the separate theory that undergirds analysis, Jus- Young tices agree MARKMANand that majority with plaintiff may along walk Lake in the Huron area of the public trust.

Moreover, colleagues agree our on several points. agree other the public We that trust doctrine, law, descended common our applies to (“[T]his Hilt, Great Lakes. See supra at 202 Court has consistently held that State has title in fee trust for the submerged beds of the Great boundaries.”). Lakes within its agree We further the public doctrine requires the state as trustee preserve public rights in the lakes and lands submerged beneath them. See 16. Nedtweg, supra at Finally, agree plaintiff we retains the same to walk along the Great always Lakes she has held. Post at 745. That our colleagues disagree with the other members of this Court particulars over far how those public ought extend not over- shadow our fundamental agreement: plaintiff does not interfere with property rights defendants’ when she walks within the public trust.

Despite the sound and Justice fury of MARKMAN’s concurring dissenting we opinion,28 radically do not example, predicts appearance For Justice Markman of fences along may they shore. Yet to extent that landowners do as see fit 699 v Glass Goeckel Opinion of the Court or destabilize precedents from our depart applying our common law. upholding colleagues in dissent claim to maintain the While our Rather, do not do so. quo, they status The trial quo. retains and clarifies status court correctly plaintiff to walk lakeward of the permitted ordinary high Appeals water mark. The Court of also correctly recognized importance doctrine, though requirement reverse its we currently walk where water lies. plaintiff colleagues

Yet our error repeat dissent would to by continuing grant possession an exclusive Indeed, littoral they compound landowners. would by granting this error littoral landowners all ends, unsubmerged they down to where land which at the edge,29regardless locate water’s of the terms of property, they always on their own could erect a fence. While we share preserve any “long coexistfence] Justice Maekman’s desire to reason- 2, harmony,” post peculiar implication able at 710 n find his we resolving disharmony parties actual an instance of between these correcting departure equates the lower court’s from our common law (or on) property this Court’s endorsement with even comment owners using adopt colleagues’ approach, fences. Were we to our littoral land- place еdge. owners could fences as far down as the water’s 29 trust, instantaneously Numerous states bound their not at an See, edge,” high e.g., defined “water’s but their mark. at water Barboro (1915) 377, 385; Boyle, (high Ark v 119 178 SW 378 water mark for a (1856) lake); French, 346, (high Simons v 25 Conn 352-353 water mark (1865) waters); 530, Day Day, (high on tidal v 22 Md 537 water mark on streams); tidally Properties, influenced rivers and State v Florida Natural 1976) Inc, mark); 13, (Fla, (ordinary high 338 So 2d 19 water Freeland v (1901) Co, Pennsylvania 529, 539; (ordinary high R A 197 Pa 745 (1895) mark); Allen, RI 114, 115; (high Allen v 32 A 166 water (1972) mark); Hardee, 535, 541-542; (high State v 259 SC 193 SE2d 497 stream). tidally water mark on influenced Indeed, edge” often tie that term references other states to “water’s See, Robertson, e.g., Mfg Cov to either a or lowwater mark. Concord State, 181, 198; 1, 19-21; (1889);Lamprey Minn 25 A 718 66 NH 473 Mich 667 Opinion of the Court casually

landowners’ deeds.30We would not so set aside deeds that property rights countless order for the length away of our state shoreline. would not give We littoral landowners the absolute title to public trust preserved people. departure land for the Such a would represent grave disturbance to the property rights littoral landowners and of the public.

Notwithstanding Justice Maekman’s characterization 711,712, of this case as “aberrational,’’post we have not invented the dispute presented us. Nor do we luxury the forsaking public rights; have of our Court is guardians one of the “sworn Michigan’s duty of responsibility [Great as trustee of the Obre- Lakes].” See cht, 412. supra at For the reasons described earlier in the opinion, we conclude that public may overlap ‍​‌​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌​‌​​‌‌​​‌​​‌‌​‌​‌​‌​‌​​‌‍with title. private Consequently, we refuse to enshrine-for the first time in our history-a solitary boundary between way, them. In this preserve we littoral title as landowners always it, have held preserve public rights we always held state as trustee. dissent,

In colleagues our resist acknowledging the boundary the ordinary high water Justice MAEKMAN relies mark. conclusion, To reach this on cases concerning boundary title, rather ofprivate than See, of trust. Silber- e.g., (1893); Perkins, 414, 419-421; (1918); NW 1139 Hazen v 92 Vt 105 A 249 Code, 70-16-201; Code, § § Mont Cent ND 47-01-15. myriad In the absence of a review of the deeds which landowners Lakes, hold title to on the Great Justice Markman assumes that describe, manner, edge.” Yet, their deeds will in some the “water’s as he acknowledges, edge may that water’s shift. This could result in water reaching mark, though convey above the low water even a deed could title Menacon, See, e.g., 684, 687; mark. low water La Porte v 220 Mich (1922) (enforcing private 190 NW 655 a deed that extended title to the mark”). “shore,” meaning edge the “water’s at its lowest Glass Goeckel Opinion of the Court wood; Lake St Clair & Hilt.31 Hunting Fishing; He refuses to our Court’s accept holding-in a case involv- “ Lake ing Michigan-that ‘the limit of the public’s right the ordinary high Peterman, is water mark su- (citation omitted).32 pra at 198 Although he criticizes for vagueness regard with to the definition term,33 of that clarify meaning we of that term in a cases, frequent particu Justice Markman makes reference to colonial larly relying high on Massachusetts. But as that state’s court has made clear, high subject at common law the state owned the to mean water line public rights navigation fishing. Opinion to See to Justices of 681, 684-685; Representatives, the House 365 Mass 313 NE2d 561 (1974). What the court described as the colonial ordinance of 1641 to changed private common law allow title to the low water mark, public rights. but even that extended title remained Id. Massachusetts, Unlike no colonial ordinance altered the common-law concepts Michigan. seeming reading Peterman, contradiction to his Justice Mark- accept ‘ordinary high simply man does that “the water mark’ is edge may... regulated preserve outside be future navigational high interests at times of water ....” Post at 729. He also goes suggest equated high so far as to that our Court has and low marks, post see but the Warner Court he relies did on which (“If Warner,supra upon not address that issue. at 239 the absence of tides Lakes, trifling they exist, practically or their effect if can be said to purpose determining makes and lowwater mark identical for the (a point pass upon), private ownership boundaries we do not the limit of marked.”). thereby Additionally, precedent Young’s our stands in contradiction to Justice ordinary high application intuition that mark no water has in Peterman, Michigan. See, e.g., (calculating damages, at 198-199 part, ordinary high in least mark). on the basis of the location of the water contrast, supported by Young In the “wet sand” standard Justice appears for the first time in in our state this case. We have serious adopting joins reservations about the view that he in Justice Markman advancing. post See at 744-745. apparent rely tension his claim that with fails to on law, Michigan purports common Justice Markman to offer an authorita ordinary high tive definition for water mark that derives from a federal dictionary. post case and a 1997 See at 738-739. Mich op Opinion the Court

way necessary for the fact-specific inquiry allows variety for the of of range physical account forces draw, decline to along landforms our shoreline.34 We for a charade of a universal line merely clarity, along any Lakes without factual development Great legal argument in the case or on an point instant issue significance of to our jurisprudence. state’s does colleagues’ edge” concept

Nor our “water’s provide superior clarity. Although might the term intu- itively appear land, to mean where the water meets Justice MARKMAN the term to expands include sand (“Because dampened by See, e.g., water. at 744 post water, definition are such sands infused with the wet ”). fall ‘submerged sands within definition of lands.’ colleagues’ conception Our of edge” neglects “water’s (1) (2) absent; account for sand geography where (3) sudden in changes water levels such as storm surges; degree what of dampness suffices: that identified touch, sight, or a scientific review that could identify (4) of presence single molecule; water water, of may source where dampness arise because liquid, rain, contact with a such other than water Also, from the Great Lakes. the instant-by-instant determination a property boundary affords little certainty to littoral landowners. Given these serious difficulties our applying colleagues’ “water’s edge” law, rule and the absence of support our case we refuse to the boundary away shift on the ordinary from the high water mark. unpersuaded We are that Justice Markman’s recitation natural difficulty ascertaining ordinary high forces demonstrates a mark, operate edge.” because those same forces to shift “water’s See

post anything, expedition at 740-743. If the results of this scientific show definition, complexity arriving water-tight prove at a rather than edge” concept escapes that the “water’s similar difficulties. y Glass Goeckel 703 Opinion of the Court trustee, an to obligation protect As the state has take what it already trust. The state cannot public private subject owns. Because littoral title remains trust, taking no occurs when state public it and retains that which could not alienate: protects rights pursuant public held to the trust doc- Certainly, property riparian the loss of littoral trine.35 rights taking. could result from an unconstitutional Peterman, supra See, 198, 208 e.g., (compensating ordinary high for losses above the plaintiffs Comm, also Bott v Natural Resources mark); 415 see Hilt, 80; (1982); Mich 838 at 225. NW2d Yet, here, any defendants have not lost property rights. Rather, their they property subject retain to the trust, just as all that abuts the Great Lakes in trust, remains Michigan pursuant common law. our Justice MARKMAN also criticizes the for leav- ing many questions, unanswered several of which re- of the quire adoption legal framework that he proposed. Yet this case none of the questions raises Justice MARKMAN poses. general, we reserve the judgment of this Court for “actual cases and controver- and do “declare principles sies” not or rules of law that no practical legal have effect in the case before us ....” Publications, Federated Inc v City Lansing, 467 Mich (2002). 98, 112; 649 Accordingly, we decline NW2d to rule on issues that are not before us. Supreme The United States held that Court has the issue before us Phillips Mississippi,

is a matter of state law. See Petroleum Co v (1988) (“[T]he 469, 475; 791; L 484 US 108 S Ct 98 Ed 2d 877 individual authority States have to define the limits of the lands held in fit.”); recognize private rights they trust and to in such lands as see see (“[T]he Shively, supra riparian also at 40 title or littoral proprietors navigable in the soil below water mark of waters are States, subject, course, governed by the local laws several Constitution.”). rights granted to the United States Mich 667

Opinion Young, J. v CONCLUSION plaintiff, public, a member of the Weconcludethat may Lakes below the walk shores Great ordinary high longstanding water mark. Under principles, private hold title to common-law defendants property according to of their their littoral the terms deed and therefore trust. We judgment Appeals and reverse Court of proceed- remand ings to the trial this case court for further opinion. consistent with this C.J., JJ., Taylor, Cavanagh, Kelly, Weaver, and J. CORRIGAN, concurred with (concurring part dissenting part). YOUNG, J. in in poses deceptivelysimple question: where, This case a if anywhere, can a member of walk on the private beach of one of our Great Lakes without tres- (littoral) passing property? on a lakefront owner’s Although question simple, answer, is amply by demonstrated the more than one hundred pages opinions case, of the rival filed by body precedent muddled an abstruse that has precise defining been less than critical terms argued issues. This was well-briefed and case that vigorous has resulted in a debate within the Court. opinions majority and Justice MARKMAN present compelling, principled, competing but con- body ambiguous Michigan structions of an law and jurisdictions concerning that of other property rights. Great Lakes analysis,

In the final I believe that firmly answer offered Justice MARKMAN is more majority admittedly anchored than that of the in the obscure law of the Great Lakes. Glass Goeckel Opinion Young, J.

I concur in the majority’s determination Submerged (GLSLA), Great Lakes Lands Act MCL seq., right et does not create a to walk the of our shores Great Lakes. The Act plainly evinces the Legislature’s regulate intent land use of below what the International Great Lakes Datum identifies “ordinary high mark,” as the rather than to limit, define new established property rights.1

However, I join Justice opinion MARKMAN’s with respect to the other presented by issues this appeal. MARKMAN, Like Justice I believe the majority errs recognizing right that we have never before recognized to “walk” private beaches —the of our Great Lakes —and by granting public access to private shore land to an up ill-defined and utterly chimerical “ordinary high water mark” as described opinion.2 sure,

To be the majority’s opinion constitutes a concerted and give honest effort to coherence to a very vague body of precedent. However admi- effort, rable the majority’s I remain convinced that “ordinary high water mark” on concept which the majority only waters, relies tidal applies with their regularly recurring and only low tides.3 The

1 See ante at 681-685. 2 majority “Applying See ante at 685-694. The concedes that: a term [ordinary high sea, despite mark] from the common law of the Lakes, obvious difference between the oceans and the Great has lead to apparent discontinuity terminology employed some in the in our case Precisely employ Ante at law.” 691. so. In effort to a term that does not adequately physical Lakes, majority reflect the realities of our Great variously has borrowed definitions from statutes and Wisconsin cases struggle not, doing, a to make this tidal term fit it where does and so immeasurably expanded scope public has of the trust. post See at 730-734. Mich 667 Opinion Young, J. find on the Great Lakes is

“water mark” that one can the wet of the shore edge viz., portion the water’s — I ebbing flowing. and presently over which lake is that the it in this area of wet shoreline only believe is so, They may do not because of public may walk. private the otherwise recognized “right walk” Lakes, “right” of our for no such has beaches Great part to be a of recognized previously ever been Nor, view, in my trust doctrine.4 is Michigan’s public opportunity product to walk the shoreline public’s overlap public property an and titles private between Rather, I that the littoral as the asserts. believe no claim to assert over sub- landowner has land —land over which the waters of a Great merged and which presently ebbing flowing Lake is consti- boundary the lake This area is the outer tutes bed. trust that is owned and maintained for the People Michigan. difficulty majority’s of the rule the sound evident approach

ness Justice is when MARKMAN’s actually apply one tries to their different standards to In the attached an area of photograph,5 shore. darker, the outer of the lake wet sand forms acting The water is on this presently portion bed. beach, as evidenced the fact that the land is water own, it logged. my Under Justice MARKMAN’s view and is walk, may may area that the and it do the land presently subject so because reinundation Thus, in part photograph, and is of the lake bed. today, Michigan only recognized Until cases have hunting, navigation, fishing, to use the Weber, (1930); fowling. See, e.g., 198, 224; Hilt v 252 Mich 233 NW 159 Gerhardt, 38, 46; (1926); Collins v 237 Mich NW 115 State v Lake St (1901). Club, Fishing Shooting 580, 586; Clair & 127 Mich 87 NW 117 Hansen, Photograph by Agricultural Experiment David Minnesota Station, University Reproduced permission. of Minnesota. with Glass v Goeckel Opinion Young, J. are seagull both the beach walker within trust.6 Where, however, majority’s lies the “ordinary high water mark” photograph? Presumably, major- ity would identify point gives where sand toway in the vegetation upper right-hand corner of the picture. The lake water point and, is nowhere near that now storm, absent a the water is to reach that unlikely point time in the any near future. Even if the lake did rise to vegetation meet the line due to extremely high precipita- forces, tion or barometric powerful what sense would the line vegetation be an water mark in ordinary the sense suggested by majority’s definition?

Moreover, notes that its ordinary high mark dry excludes all land except “tempo- 6 Accordingly, plaintiff may I would hold that walk in the zone of wet Huron, provided creating sands on Lake that she does so without nuisance, because the defendants have no interests in the bed of that lake. 473 MICH 667 Opinion by Young, J. the water. The beach

rar[ily] expos by pictorial [ed]”7 unsatisfactory majority’s shows how is illustration “ordinary high definition of formulation of its does exactly mark” as to our Great Lakes: What applied If by exposure? mean it majority “temporary” from the lake waters have means land which simply receded,”8 point may anyone “not at what permanently “perma- determine that the recession of the water is nent”? If the of the shore between the lake bed portion the wet sand area over which the lake is (including vegetation dry and the line has been presently lapping) more, that truly argued for a season or can it be These are “temporarily” exposed? area of beach is of fact but apparently pure questions majority,9 I critical threshold that must they questions believe are giving “ordinary when the term posed be answered legal applied water mark” a workable definition as Great Lakes. essence, then, In I believe that the concludes area in the attached is dry sandy picture (thus entirely “ordinary high below the water mark” trust) within the state-owned because protected, may this area looks like it have been influence of water at some unidentifiable in the point may again, and because it at some unidentifiable past future, in the be covered the lake. If point nothing else, this is an because it re- impractical proposition to our quires application uncritical nontidal Great “ordinary high Lakes of a term —the water mark”— applicable only that is to tidal waters. analysis

I believe the offered Justice MARKMAN majority. more than that offered persuasive 7 Ante at 691. Ante 691. at 694. Ante Glass v Goeckel Opinion by Markman, J. view, analyzed not has Justice MARKMAN

my accuracy greater common law decisions with applicable but, he has majority opinion, contrast with the faithful to the physical articulated a rule is both realities of our Great Lakes consonant with all precedent valiantly available confused that we have struggled decipher.10 11(A) reasons, I part

For these concur I-III and of Justice majority opinion join parts but V opinion respectfully dissenting from the MARKMAN’s majority opinion. remainder of the J. in and (concurring part dissenting). MARKMAN, Because I would not alter the longstanding quo status in our state the concerning competing rights owners, and lakefront I public property respectfully concluding dissent. In that the doctrine” “public trust pеrmits members of the to use public unsubmerged property up “ordinary high lakefront mark,” in majority legal Michigan the creates new rules out of whole cloth in adopting piece Wisconsin law meal that discarding Michigan fashion rules have defined the between the and lake relationship public property virtually entirety front owners for the of our history. Equally troubling, majority replaces state’s the pro clear and well-understood rules —rules that have harmony duced reasonable over decades in the. “ordinary high If we must transform the term water mark” in order it, ought apply way to use I believe that we at least define and it in a that physical reflects the nature of our non-tidal Lakes and that does Great damage property rights least to heretofore stable lakefront in the State. 1 Although, quite remarkably, majority purports the it that “retains 699, quo,” support status ante at there not a scintilla of clarifies the Michigan, proposition for the that Wisconsin law has ever been the law of test, single Michigan referencing majority’s not a case the new and not a defendants, paragraph argument any plaintiffs, of in of the briefs of Michigan. identifying as the of amici Wisconsin law law Mich 667 Opinion by Makkman, J. things One of the few obscure rules.

Michigan— with majority’s the is that it will opinion that is clear about in an inevitably litigation— litigation lead to more more that, mercifully, largely been free area of the law has past century for the and a half litigation from such harmony In place our state. the reasonable property and littoral developed has between owners, litigation. In place open there will be beaches, certainly proliferation there almost will be by property pro- fences erected owners determined to In rights.2 place tect their now uncertain rules upheld rights that have both of lakefront property provided landowners and an environment which property, including reasonable use lakefront beach-walking, routinely place, could take introduces new rules will create tensions between and lakefront In place owners. of a that can be determined by simple obser- vation, majority’s require new rules would bring owners and the “aerial photographs,” “government survey map[]” and “stereo [three- ante n photographs,” dimensional] at 692 order to determine where their begin end. of rules in place property rights clearly which have been by law, defined majority expands “public trust” majority recognize why prescription The fails to its rules a new are is, course, property always fences. It of true that lakefront owner “could fence,” majority However, erect as the observes. Ante at 699 n 28. fences generally thought necessary. law, have not heretofore been Under current alter, property I which would not members of the and lakefront long harmony. majority’s owners in have coexisted reasonable It is the today departing precedents creating actions in from our and new and vague certainly relationship law that will almost transform this and they cause at least some owners to believe that must erect protect in fences order to boundaries that have now been called into question apparently Depart and that will be to definition of ment Natural Resources. Glass v Goeckel Oрinion by Markman, J. fashion, in an uncertain in accordance and with rules to at future time regulations be issued some agencies government. administrative state in place property rights of the clear rule of law which respected have been a consistent fashion for more century half, than a and a there will political dispute be negotiation. and

This is the such to come dispute before this first history. Court our Rather than recognizing harmony produced by present has been rules in course millions of interactions that occur each year between the along owners Lakes, Great the majority instead creates new rules on the basis of an isolated and aberrational be- dispute present parties. tween the departs longstanding from the status (1) state, in our

quo despite following: there is no realm of the greater law which there is a need to maintain stability continuity than with regard (2) property rights; parties in this case have all they asserted favor a maintenance of the status (3) quo;3 there is no evidence that the quo status has not “ Weber, argues edge’ [in Plaintiff that use of the term ‘water’s Hilt v (1930)] 198; 252 Mich 233 NW 159 is consistent with the nomenclature many using edge’ ‘high other state and federal cases ‘water’s mean ” See, also, Tip water mark.’ Plaintiffs brief at 24. amicus brief of the 18; Michigan the Mitt Watershed Council at amicus brief of the Senate 2; Michigan Democratic Caucus at amicus brief Land Use Institute 10; Michigan Departments and amici brief of the of Environmental Quality argue and Natural Resources at 11. Defendants that the status quo gives the littoral owner “exclusive use of the beachfront edge See, water’s it exists from time to time.” Defendants’ brief at 13. also, Commerce, Michigan amici brief of the Chamber of National Foundation, Independent Legal Michigan Federation of Business Bank Association, Michigan Hotel, ers Motel & Resort Association at 11 (“The Michigan compel relevant authorities thus conclusion that the applies only submerged they actually lands when are submerged”); amici brief of the our Shoreline and the Great Lakes Save Mich 667 712 473 Opinion Markman, J. owners

reasonably balanced the interests of century more than a and public Michigan and the for (4) half; present and there is no evidence that other than an isolated and aberra- dispute anything one which to dispute, upon predicate tional not century-and-a-half-old conception pri- reversal of a property rights. vate of main- recognized importance

This Court has security taining private property by “declaring] strictly past that stare decisis is to be observed where ‘rules of that induce exten- property’ decisions establish Comm, v sive reliance.” Bott Natural Resources 415 (1982). 45, 77-78; Bott, Mich 327 NW2d 838 we noted value, “[¡Judicial property’ that ‘rules of create and the passage stability time induces belief their that generates energy capital.” commitments of human Therefore, Id. at 78. such rules should closely be re- for “the spected very overturned best of See, Comm’r, v e.g., Dolby Hwy reasons.” State 283 609, 615; (1938); Sheldon, Mich Lewis v NW 694 (1894). 102, 103; Mich 61 NW 269 public’s right property abutting The to use the Great traditionally Lakes under the trust doctrine has lands,” i.e., been limited to “submerged those lands Lakes, including covered Great their wet sands. edge” point give “water’s is that at which wet sands way dry sands, thus limit marking public’s rights under the trust doctrine. This has been (“[t]hat Coalition, edge Inc at 9 the water’s was the between Plaisance]”); ownership suggested [littoral] [La first was legislators (arguing Michigan amici brief of the at 4 that numerous cases establish littoral owners “have title to their to the water’s edge, any public submerged free of trust interest in the lands of the Great Lakes”); Property Rights and amicus brief of the Defenders of (noting past sixty-four years, rejected any in the this Court has expand attempt edge). to areas landward of the water’s Glass v Goeckel Opinion Markman, J. in Hilt in our state since this Court’s decision the rule (1930), Weber, 198; Mich 233 NW 159 a case that defined the limits of the seventy-five years has Indeed, property.4 except of use of littoral public’s rights Hilt, immediately seven-year period preceding for the Michigan with edge principle this water’s is consistent and even dating years probably case law back over 160 businesses,5 owners, property including earlier. Lakefront in reliance on rules present ve invested ha relationship the between the concerning property longstand lakefront owners. This reliance on ing given rules should have considerable it altered the and redefined the pause quo before status public trust doctrine. upset

This is not the first time this Court has settled Lakes, of of property rules on Great but lessons the first time do not seem to have been well-learned 1920s, majority. property Before the owners be- 4 majority, always precisely “[o]ur As noted case not law has distinguished” “riparian.” n between the terms “littoral” and Ante at 672 seas, Lakes, coasts, applies oceans, 1. The former the Great and their applies Dictionary while the latter to rivers and streams. Black’s Law (7th ed). Unfortunately, appears the misuse of these terms at times to aspects misapply have led this Court to trust doctrine as they aspects if relate to rivers and streams as those also related to the See, e.g., Resources, Dep’t Great Lakes. Peterman v Natural 446 Mich of (1994). 195; 177, I 521 NW2d 499 will use the term “littoral” when discussing abutting the Great Lakes. 5 majority’s particular, consequences new rules are industry Michigan in in have uncertain for those the tourism who majority, using in Hilt. invested reliance on the rule set forth law, “ordinary high water mark” as “defined” under Wisconsin has unsubmerged up wholly unspecified point opened a use lands change implications and this would seem to have landward of the water type ability enjoy Lakes tourists to for the of at least some Great See, Michigan. gener tranquil by private beaches within retreat offered Commerce, ally, Michigan National the amici brief of the Chamber Foundation, Legal Michigan Independent Bank Federation of Business Association, Hotel, Michigan Motel & Resort Association. ers Mich Opinion by Markman, J. title edge.

lieved that their extended water’s Boundaries, nature, Steinberg, God’s terminus: shore, Am Michigan Legal on the J Hist (1993). However, cases,6 in the this Kavanaugh eighty years overruled abruptly then-existing Court a case law and held that littoral owner’s title extended line,” to the “meander line used survey government federal to determine the of prop- amount erty Territory.7 available for sale the Michigan While recognized Court at the time that this decision was “against overwhelming weight authority,”8 unlike majority’s today, decision it arguably was least grounded in dictum from a prior Michigan decision.9 Nevertheless, by deviating from an established rule of property rights in of establishing favоr at an line that imaginary property owners could not easily identify, the Kavanaugh Michigan’s cases threw lake- disarray. shores into For example, renters of property between the meander line and edge the water’s with- held their rent and in fact were advised to do so the Department director of the of Conservation. Id. at Further, 77-78. littoral owners found that third parties building were on property between the meander line and the edge, effectively water’s thus blocking their access to the lake. Other littoral owners were forced hire surveyors in order to any certainty determine with property they what owned. actually The chaos caused 6 Kavanaugh Rabior, 68; (1923), v 222 Mich 192 NW 623 and Ka (1928). 240; vanaugh Baird, 241 Mich 217 NW 2 7 Hilt, supra at 204-205.

8 Baird, supra at 252. Club, Munoskong Hunting Fishing 61, 64; In Ainsworth v & 159 Mich (1909), along “[littoral] 123 NW 802 we stated that owners the Great Hilt, Later, however, supra Lakes own to the meander line ... .” in Ainsworth, edge at we noted in that the meander line and water’s bay question. the on in were same the v Goeckel Glass Opinion Maekman, J. departure from the traditional rule the Ka- just years vanaugh cases was so dramatic that seven later Court corrected error and its reestablished they had on the rules existed Great prior eighty years. Hilt, for at Lakes least 227. today majority revamps

The trust doc- trine on the portions or at on the basis Wisconsinlaw— least majority liking—

of it that the finds to their doing, regard- and, in so announces new rules of law ing doctrine. lands trust Because public’s rights I believe under doctrine always submerged have been limited to the use of lands, sands, which includes the wet I do not believe Appeals holding that the Court of erred in that the public may unsubmerged However, not walk on lands. Appeals holding I do believe Court erred begins “ordinary high title state’s at the part Therefore, mark.” I would affirm in and reverse part Appeals the decision of the Court of apply principles remand to trial court to set opinion. forth in this

I. MISUNDERSTANDINGTHE “ORDINARYHIGH MARK” WATER majority “ordinary high The concludes that the wa boundary ter mark” is the landward trust necessarily doctrine.10While the does not dis edge agree that the water’s as the serves majority also rhetorical formulation for the test creates new doctrine, determining permitted by whether a use is although any significant I fail to see distinction between a use that is traditionally protected public rights,” in the ante at “inherent exercise of 695, paramount and a use that bears “a real and substantial relation to a Hilt, purpose.” agree majority at 225. I with Walking submerged beach-walking permissible public is a trust use. 473 Mich 667 Opinion by Markman, J. title,

the littoral it would expand public’s owner’s legal right property up utterly to use indiscern “ on the ‘point up ible bank shore to which the presence and action of the is so water continuous erosion, a mark leave distinct either destruction of terrestrial vegetation, easily recognized or other ” (citation omitted). characteristic.’ Ante at 691 The majority newly further adds that described “or dinary high mark,” water one never before seen Michigan, includes unsubmerged lands that are the product of “fluctuation” in the level of the lake that “results in temporary exposure may of land that then exposed remain above where currently lies.” Id. I disagree. replaces workable and easily identifiable with one whose exact anyone’s guess location is and it has done so on the doctrine, basis of the Wisconsin public trust or at that part least of Wisconsin’s doctrine that supports 11Instead, I majority’s new rule. believe that public’s entitlement to use under the trust doctrine of Michigan submerged is limited to lands, i.e., the and Great Lakes their wet sands. activity “necessary lands is an that hears and substantial relation” to protected by doctrine, other e.g., water-borne recreational activities boating, swimming, fishing. 11 Curiously, majority adopts area, despite Wisconsin law this the fact that Wisconsin’s 820 miles of Great Lakes shoreline is dwarfed 3,288 <http://www. miles shoreline in this state. (ac michigan.gov/deq/0,1607,7-135-3313_3677-15959~,00.html> 2005). Nonetheless, point cessed June the critical is not whether it longer Michigan’s is the law of a state with a or shorter shoreline than adopted by majority. Rather, why any that has been it is new law adopted proven many has been when current law has workable for clearly setting decades of our state— forth the property owner, minimizing litigation, simultaneously pro tecting private property rights allowing while reasonable use of Lakes, including beach-walking. the Great 717 v Glass Goeckel by Opinion Markman, J. rooted in new rule is creation of this majority’s The “ordi of the importance of the misunderstanding its the defining of purpose for the water mark” nary high Great Lakes. trust on the nontidal public is derived in the United States trust doctrine The to tidal law, extended common which English from the Consoli mark. Borax ordinary high the water land below 23; 80 L dated, 10, 23; 56 S Ct Ltd v Los 296 US Angeles, (1935). English the common rights protected by The Ed 9 ordinary high to the up of tidal lands law included use the and commerce... for “navigation water mark 1, 11; 152 Bowlby, v US fishing....” Shively of purposes (1894). 548; 14 38 L Ed 331 S Ct Revolution, title held for the Following the American states, subject the to the by King passed the trust to the by states only to those surrendered each Id. at 14-15. state government. federal While by permitted the uses required protect Illinois, v 146 US doctrine, Illinois Central R Co trust (1892) (Illinois 110; 387, 453; 13 36 L Ed 1018 S Ct subject to that trust is I), scope Central . .. .”12 “the local laws of the several States governed by Thus, at 40. it cannot be said Shively, supra 12 Chicago, v 176 also notes that in Illinois Central R Co (1900) II), 646, 660; 509; {Illinois L 622 Central 20 S Ct 44 Ed US grant Supreme lands the State Court found that “a United States high-water pass submerged ... lands below mark does not title to However, Shively, scope of lands to the as stated in determining scope of ‍​‌​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌​‌​​‌‌​​‌​​‌‌​‌​‌​‌​‌​​‌‍the trust is determined state law. II, Supreme Court looked to the United States doctrine in Illinois Central Illinois, Supreme Court....” as laid down “the law of the State mark, finding Illinois’s title Id. at 659. In went by majority, Supreme cited point emphasized the United States Court Smith, directly. 660, citing Ill v 24 521 Illinois case law Id. at Seaman 138, 146; Kirk, (1860), Attorney 830 People 162 Ill NE ex rel General (1898). 468, 479; (1896), People, Because Ill 52 NE 1052 and Revell v law, holding regarding scope applied II Illinois its Illinois Central 473 MICH667

Opinion by J. Markman, American public uniformly trust doctrine extends to the “ordinary high water mark.” Id. a majority While original English thirteen colonies followed the common- rule, Shively law 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 fishing when it is above that point. Id. at For example, 18-25.13 in Commonwealth v Alger, (1851), Mass the Supreme Court of held, Massachusetts under the “local laws” of that state,14 a littoral title owner’s extends to the low water However, mark. the littoral owner’s title is limited because [lands “whilst above the low are mark] sea, covered with the persons all other right have the to them ordinary use for the purposes navigation.” of Id. words, at 74-75. In other public’s rights under the public trust doctrine are limited to the use of property is currently submerged. Thus, public trust doctrine as defined in the “low water mark” colonies restricts the public’s right of use to either land below subject lands to binding trust doctrine is not on this Court. Rather, developed the common scope law as in this state determines the of lands to the doctrine. (littoral Massachusetts, Shively, Those supra states are: at 18-19 “subject owner takes title public rights in fee to the mark lowwater to the (“a navigation fishery”); Hampshire, of right New id. at 20 in the recognized belong shore has been adjoining to the owner of the (“the upland”); Pennsylvania, id. by at 23 owner of lands bounded navigable water has the title in the soil between and low water mark, subject public right navigation”); Virginia, to the of id. at (“the by 24-25 ordinary owner of land bounded tide waters has the title to mark, right wharves, provided low water they and the to build do not navigation”). obstruct by majority, As noted adopted ante at 701n Massachusetts by Alger, Thus, low water mark colonial ordinance. at 66. while obviously directly applicable not Michigan, trust doctrine in Alger “ordinary high does make clear that the water mark” has not been universally accepted majority apparently as the believes. v Goeckel Glass Opinion Markman, J. currently or to such land as is mark the low water of the ocean.15 the waters covered adopt did not Likewise, Michigan “local laws” of lands, re- but rather of English definition trust doctrine under the public’s rights stricted Bay In La Plaisance submerged lands. to the use of Council, Chancery Rep Walker City Harbor Co v Monroe of the Great (1843), ownership of public the issue Michigan aby for the first time was addressed Lakes Plaisance, Chancery of addressed In La the Court court. in Lake Erie. The navigation right improve the state’s to build a city authorized the of Monroe had Legislature Raisin to the lake. The harbor connecting the River canal claiming that enjoin project, suit to company brought from the river that divert so much water the canal would rendered inaccessible would be its downriver warehouses company that the harbor However, the court held by boat. in the river its right to the flow of water did not have the bed of this public owns “[t]he natural bed because an limited in its rivers, and is not class easement, Id. at 168. The court also right way only.” lakes, large parts to our or such regard noted that “with state[,] proprietor [t]he them as he within the limits in the land has no whatever adjacent shore added). (emphasis the lake” Id. the water covered Plaisance, La Moreover, it should be noted before statehood, Michigan part was Northwest and before to the United States Vir- which was ceded Territory, held law, a littoral owner Virginia Under ginia 1784. Shively, mark. in tidewaters to the low water title to soil at 24-25. supra interesting law, majority’s light on it is reliance Wisconsin In public’s similarly Supreme held that the Court

to note that the Wisconsin only applicable up right submerged water mark is lands to the to use Jantz, actually 180 Wis mark. Doemel v extend to such the waters when (1923). 225, 236; 193 NW 393 473 Mich Opinion by Markman, J.

The understanding public’s interest under the public trust doctrine is limited submerged lands of the Great Lakes was expressed by also Justice CHAMPLIN in his concurring opinion Davis, in Lincoln v (1884). 375; 53 Mich Lincoln, 19 NW 103 In a fisherman placed had stakes in Thunder Bay, island, off an in order fishing to set some nets. The island’s owner removed stakes, claiming that he had the exclusive fish in the waters off his island. Thе majority, Lincoln while not discussing between littoral property, held that the owner had no right to interfere with the fisherman’s stakes. Justice CHAMPLIN noted that [Michigan] “when was admitted into the Union political jurisdiction de upon State, volved and the title to the soil under the navigable waters of the Great Lakes became vested in the State sovereign to the same extent and for the same reasons that the title of the bed of the sea was added). vested in the king.” Id. at 384 (emphasis How ever, the state’s title extends to the “low-water added). mark.” Id. at (emphasis 384-385 fact, In accord ing to Justice “The paramount rights of the CHAMPLIN, public to preserved be are those of navigation and fishing, and this is best accomplished by limiting the grants of lands bordering on the Great Lakes to [the] low-water mark.” Id. at 385-386.

The United Supreme States Court defined the scope trust doctrine as applied to the submerged lands of I, the Great Lakes Illinois Central I, 437. Illinois Central legislature Illinois had granted the railroad title to one thousand acres of submerged land on Lake Michigan. years later, Four legislature repealed Illinois this act and sought quiet title to submerged lands. The Supreme Court held that “the State holds the title to the lands under the navi- gable waters Lake Michigan . . . and that title neces- y Goeckel Glass Opinion J. Markman, them above over waters with it control sarily carries Id. at 452 to use.” subjected are the lands whenever added). title public-trust Because the state’s (emphasis by the the lands covered sovereignty, of its a function alien- alienated, such except when cannot be doctrine and the use of them promotes ation not harmed. remaining is and waters of the lands use 452-453. Id. at Silberwood, 110 later, in People years four

Just (1896), seized this Court 103, 107; 67 NW Mich the public I of explanation the Illinois Central upon holding that the its support doctrine to trust littoral lands is the low lands and between Silberwood, con- the defendant was mark. Erie. on Lake vegetation cutting of submarine victed lying of land the owners defendant claimed The who Erie, including employer his to Lake adjacent the land to vegetation, owned removal of ordered Lake, of that Great the center Plaisance, held that Court, La quoting

navigation. in land covered any not have title owner does a littoral then noted Id. at 106. The Court Lakes. Great Illinois I decision that the Central early case harmony laid in the with the doctrine down is in City Bay Harbor Co. v. Council La Plaisance Monroe, think has ever been overruled I do not which right's on affects the of shore owners State so far as it too, doctrine, inis Lakes. This the borders of Great bordering harmony in all of the States with the decisions great [Id. 108-109.] seas. at on these of other Great Further, the Court noted that decisions La Plaisance and line with both were in Lakes states I: Illinois Central etc., (Champlain, R. Co. v. York

The decisions in New (1853)]), Pennsylvania Valentine, Sup [NY 19 Barb. 473 Mich 667 Opinion Markman, J. (Fulmer Williams, (1888)]), v. 122 Pa. St. 191 A[15 726 (Sloan Biemiller, [1878]), Ohio v. 34 Ohio St. 492 all hold that the fee of the [littoral] owner ceases at the low-water mark. [Id. 107.]

This Court reaffirmed the principle that the trust doctrine applies only submerged to lands in People (1898). Warner, v 228; Mich 74 NW 705 At issue in was ownership Warner of a marshy island that was previously submerged under Saginaw Bay. The defen- dant claimed ownership of the marshy island as an accretion to his adjacent island. placing In the boundary at the edge, water’s the Court statеd: depth

The upon of water submerged impor land is not determining tant in ownership. If the absence of tides upon Lakes, trifling they or their effect if can be said to exist, practically makes and low water mark identical (a purpose for the determining point boundaries we do pass upon), not private the limit of ownership thereby marked. adjoining The proprietor’s there, stops fee there that begins, of the State whether the deep water be shallow, although grown it up aquatic be plants, and although it be navigation. unfit for right navigation The only is not the interest public, that the as contradistin guished State, from the has in these waters. It has also the right pursue fowl, and take ñsh and wild which abound places; in such and the act cited has attempted to extend over the belonging lands adjoining State portion that of the water adapted known to be to their added).][16] sustenance and (emphasis [Id. increase. at 239 majority context,” The claims that when read “in Warner does not recognize single boundary riparian “a between the owner’s title and state Specifically, control... .” Ante at 688 n 16. upon by the “context” relied majority is Warner’s public’s distinction between the state’s and the submerged However, interests in lands. there is no context under which reasonably support Warner can majority’s be read to new rule of law. passage The directly cited comes after this Court’s holding that the submerged lands, state holds regardless title to all navigability. justifying navigation,” state’s title to lands “unfit for Glass v Goeckel Opinion Markman, J. marshy that a connection between found Court island, during which existed the defendant’s island and If water, of material fact. raised an issue times of low up was land washed evidence connection eventually and that the defendant’s island against water, from then marshy island to rise caused the such land accretion. held title to defendant from the first and However, if the arose island towards the defendant’s began then extend case, the any to the state. In island, belonged then title inappropriate was summary disposition Court held trial. for a new remanded case addressing the thorough opinions One of the most concurring public trust doctrine was Justice Hooker’s Shooting & opinion Fishing in State Lake St Clair (1901).17 Justice 580; Mich Club, 127 87 NW “title that by noting his that the began analysis HOOKER the Union took when it was admitted to Michigan deep to float sufficiently not limited to water 1836 is joins ground to it the craft, extends the where point but deep the be owner, ‘whether [littoral] the although up aquatic plants and it shallow, grown be submerged lands the has interests those Warner notes i.e., interest, right pursue beyond navigational “the above and a Further, opinion-replete novel ..” in an with take fish and -wildfowl.. law, by perhaps the is concepts the creative statement most [i.e., stops phrase adjoining proprietor’s there fee “[t]he the somehow begins” represent is], does not that of the State where the water there begins point boundary. at the single If the title the where state’s and, ends, adjoining proprietor’s can be title there one suggested by therefore, overlapping of titles the cannot be an there contrary, majority’s Accordingly, despite the majority. the claims to solitary boundary explicitly between littoral this Court has “enshrined” years. public trust lands at least 107 lands and analysis subse was doctrine Justice Hooker’s opinion approval by Court quently unanimous of this cited with the 702; Co, 680, 160 Mich 125 NW State America Land v Venice of (1910). 473 Mich 667 Opinion by Maekman, J. ” navigation.’ Warner, and unfit for quoting Id. at Likewise, supra at 239. the the abutting title of littoral owner the extends to shoreline. & Fishing Shooting Club, supra Thus, at 587. “when the water in the lakes mark, State, stands at low-water .. . the title [is] the and all land between low-water mark and the meander line belongs to the . abutting proprietor ...” Id. at 590 added). (emphasis

The common-law scope limitation of the of the public trust doctrine reaffirmed was Court in Hilt. In the overruling Kavanaugh cases, short-lived held we that “the from purchaser government of public land on Hilt, took Great Lakes title to the edge.” water’s at 206. also noted We that the waters of our Great change Lakes commonly landscape surrounding them, by erosion or deposits water, made in a gradual and imperceptible Id. at manner. 219. In order to account change, for this constant the title of a littóral owner the shore “follows line under what has been ” (citation graphically called ‘a movable freehold.’ Id. omitted). The title to land above water’s edge “ ‘independent governing law the title in the soil ” Id., covered quoting water.’ Shively, supra 35.18 summarize,

To under the common law as it has Michigan, developed in when the water is at a low point, the state holds title to the submerged land, including sands, wet title unsubmerged while land is in the Warner, littoral Club, owner. & supra; Fishing Shooting supra. rises, As the water level the public gains to use the entire surface up lake 18Hilt effectively also to hold noted that otherwise would cut water, thereby destroying very littoral owner off from the character Hilt, property istic that defines as “littoral”— its contact with the water. supra at 219. 725 v Goeckel Glass Opinion by Makkman, J. way to give at which wet sands edge point water’s —the Hilt, supra-, purposes. trust sands —for dry title fol- Warner, Likewise, littoral owner’s supra. Accordingly, Id. and fall of the waters.19 the rise lows land- title is the most littoral owner’s boundary of the mark” or the current of either the “low ward The state’s the water itself.20 location of 19 “granting my position landowners majority littoral misstates The ends, locatef] at unsubmerged [I] property land which down to where all at edge, regardless deeds.” Ante of the terms of landowners’ the water’s The characteristic for this statement. There is no basis 699-700. Hilt, supra at with the water. as “littoral” is its contact defines words, property does not extend to owner whose deed In other 219. and, therefore, no more edge would have not a littoral owner is water’s public. any unsubmerged property other member of the than gives only if the deed title Obviously, property is a littoral owner owner may edge” For edge, be described. however the “water’s to the water’s case, that the “meander example, defendants’ deed states in the instant boundary property. part As we of their Huron” forms line of Lake (1943), 234, 242; Rhode, “the Farabaugh 9 562 305 Mich NW2d held in v description Michigan and not one of a line of line of Lake is meander owning line owns to the water’s to such meander and that one contrary edge subject unless a intention and reliction to accretion contrary conveyance.” no evidence of a expressed There is in the and, therefore, hold title to the water’s defendants intention in this case edge. ambiguity “some that this Court has identified 473 Mich 667 Opinion by Markman, J.

title, then, “begins is], [where the water whether the water be deep Warner, shallow . . . supra 239.21

In rejecting this understanding, the majority’s opin- ion virtually ignores years law, of case and instead simply that announces “Michigan’s courts adopted have the ordinary high water mark as the landward bound- ary of the public trust” doctrine. Ante Thus, at 638. according to majority, the unsubmerged up land to the “high water mark” subject remains to the trust. To support assertion, its the majority cites with approval this Court’s holding Peterman v Dep’t Natural of Resources, 177, 446 Mich 198-199; 521 NW2d 499 (1994). In doing so, the majority fails to acknowledge that Peterman did not public’s address the right to use property under the public trust all,22 doctrine at but rather addressed the state’s right to improve navigation under the navigational servitude.23 began We our Further, Id. expressly Venice adopted America Land Co Justice concurring opinion Fishing Shooting from argued & Club. As Hooker’s earlier, Justice boundary found that the between a littoral Hooker by owner’s held the state in trust is the low water mark, at least at times of low water. 21 majority interpreted The edge” has principle creating “water’s along a “universal line However, Great Lakes ....” Ante at 0. edge line,” water’s is not a dynamic “universal but rather a that moves as the waters of the Great Lakes move. apply Even if Peterman did in the trust context— which it does not— holding an examination of its indicates a definition of the trust doctrine far more in line Alger with “lowwater mark” cases such as “high than by with the majority. water mark” cases cited majority argues simply that this decision “relied not on a ‘navigational unique case, servitude’ to ‘navigational but rooted that servitude’ in the However, trust doctrine.” Ante at n 649-650 15. specifically “plaintiffs’ Peterman rights states that [littoral] are navigational Peterman, servitude Michigan.” retained the State of supra at 193-194. Peterman rights does not state that littoral are right subordinate right to fish Rather, and hunt or the to walk. holding Court limited improve navigation. its to the state’s v Goeckel Glass Opinion Markman, J. “ affirming that ‘title of analysis Peterman has line under what owner follows shore [littoral] ’ ” Id. at “a freehold.” called moveable graphically been However, found Hilt, at 219. we also quoting Rather, the state retains title not absolute. that such unsubmerged property on servitude navigational edge may again of the water’s become landward water.24 order during submerged periods the littoral owner and accommodate both land for unsubmerged navigation, potential use “a the littoral owner’s title is determined that we of the state power title ... that is limited (em Peterman, at supra 195 improve to navigation.” added). is, the has the to right That state phasis unsubmerged this land to ensure that the regulate the not interfere with public’s littoral owner does right navigational purposes the land for future to use again it covered the waters of the when becomes Also, right to this Lakes. the state has the take Great or take action inconsis unsubmerged land otherwise giving the littoral without due tent with owner’s it necessary the littoral when is compensation to owner taking navigational improvements to make when the an nexus” at 201. possesses navigation. “essential to Id. However, just may only the use the Alger, as when the question navigational purposes25 land in the Lakes. land is covered the waters Great of government navigational The federal also retains a servitude on the Lakes and beneаth them. Great the lands fishing navigational recognized the an incident of We have Collins, Collins, supra and lakes. at 48-49. In servitude inland rivers right stream itself and that noted that the to fish was limited to the we exercising upon uplands riparian right people go the “in cannot of this guilty they they gain the If do that are in order access to water. owners Bott, 64-65, supra trespass.” Id. at 49. See also which of was further limited. servitude 473 Mich 667 Opinion by Markman, J. of majority misapprehends

Because nature title, importance it this limited has misconstrued the “ordinary mark” high water as it is described in recognizing right Peterman. While to im state’s navigation, sought prove we also to limit adversely improvements. could be affected such limitation, To determine the we scope of examined 281.952, former MCL part which was the Inland Act, Lakes and Streams as well defining as cases rivers, scope trust doctrine on including Rapids Jarvis, Grand Co v Booming 308, Mich (1874) (holding public right 318-321 that the of naviga tion confined to stream was itself and that its ordinary water), was the line of high and Hall (1897) 167-168; 114 Mich Alford, 72 NW (noting that land alongside river above the water line not be taken just could without compensation and due On process). basis our review of these “ authorities, determined we ‘the limit of the right is public’s ordinary high mark river.[26] land[27] This means that the ownership of fast unqualified and not burdened with state’s [the ” (citation Peterman, improve navigation].’ at 198 omitted). Applying this rule of rivers the Great Lakes, held we that destruction of the littoral owner’s adopted “ordinary high We the definition of mark” water from the 281.952(h). Acf, Peterman, Inland supra Lakes Streams former MCL as, at 198 n 29. That statute defined the mark upland persists the line between and bottomland which through changes levels, successive in water below which the

presence and action of the water is so common or recurrent distinctly that the character of the land is marked from the upland apparent itself, configuration and is soil in the the soil, vegetation. of surface the and the “property high-water “Fast land” that is ‘above the mark of the stream, river, body Peterman, property.” or other of water that abuts the 2d, Domain, quoting 192, p § at 181 n 26 Am Jur Eminent 873. v Goeckel Glass Opinion Markman, J. “an mark” was “ordinary high water the above property process due without taking property of unconstitutional at 200. Id. just compensation.”28 Peter- majority, the claims Thus, contrary to Hilt that the the rule of Warner alter man did not trust the under property to use public’s Rather, the lands. submerged limited to doctrine is edge the outside simply mark” is water “ordinary high preserve regulated either be may of property or water interests at times navigational future improve- navigational for compensation taken without recognize fails to majority The Id. at 202. ments. rights” “public’s holding applied Court’s result, the ma- As a servitude. the navigational

under holding of our scope unwarrantedly expands jority trust under to create new in Peterman in that contemplated that were never doctrine, rights case. PUBLIC THE OF LANDSWITHIN

H. MISDEFINITION TRUST DOCTRINE in its understand- correct if the were Even for mark,” which “ordinary high water ing of compensation recovery limited to plaintiffs’ in Peterman was not The concluded: damage lands. We also done to the fast for the navigational permits state to generally trust While lands, compensating nonfast waterways for

improve without destroy private authority grant does not blanket necessary possess an property must be property— the loss of the question. navigational improvement nexus to the essential the construc- case, existed between nexus instant no essential plaintiffs’ utter destruction launch and the of the boat tion public interest property no taking served beach. destroying plain- ramp have been built without could because damages Thus, trial court’s award property. affirm the we tiffs’ [i.e., below the plaintiffs’ the loss of 201-202.] “ordinary high mark”]. [Id. at 473 Mich 667 Opinion Markman, J. be, reasons set forth I do not it believe to 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 majority Lakes. The apply law, does not Michigan but instead, analysis without or explanation, summarily adopts Wisconsin’s definition of the “ordinary high mark,” which it derives from a case involving a Further, Wisconsin river. while the majority admits that the “ordinary high water mark” is a term used to define scope public trust doctrine in tidal waters, it fails account for the fact that the Great Lakes have no true scientific and high low water marks as on exist given seashore. Even the majority’s attempt graft this tidal-based term upon the Lakes, nontidal Great its definition bears little resemblance to the common-law standard. In creating a new definition of “ordinary high water mark” based on the portions of the common law it amenable, Wisconsin finds the majority fails to provide either lakefront property owners or the with slightest guidance in understanding the lands in which the new 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 vegetation, terrestrial or other easily recognized char- acteristic.’ ”29Anteat quoting Diana Shooting Club majority concludes that “ordinary high doctrine is the water mark” because the “lake has not permanently point may yet receded again from that assert its up point.” influence Ante at 691. Does the mean that the property that, has access although to littoral currently owner’s dry, point past has been wet may again at some in the be wet some day so, in the future? If what is the relevant time frame to determine if Glass v Goeckel Opinion Markman, J. (1914). 261, 272; 145 This Husting, 156 Wis NW case derived from State Wisconsin definition is as it applies trust doctrine involving that state’s inland river. necessary now finds it Why this court to an and it with Michigan replace common law to abandon law, portions common or at least those Wisconsin’s explained. not As persuasive, finds is majority Shively, supra noted in Supreme United Court States of what lands fall within 26, the determination in each doctrine is different of the trust scope states, the laws of several reviewing After state.

Court remarked the tide dealt with the lands under

that each State has according to its own views within its borders waters lands, reserving control over such justice policy, its own corporations, or granting rights therein to individuals not, it adjoining upland or owners of the whether public. of the Great considered for the best interests caution, necessary applying precedents in therefore, is arising (emphasis [Id. State to cases another. one added).] failed to heed to the United majority pay The has in this matter. The Court’s advice Supreme States has also failed to examine Wisconsin majority policy to determine doctrine in order whether majority’s adoption of Wis- underlying reasons “ordinary high of the understanding consin Michigan’s “views of compatible with mark” is even ....” Id. Rather than conduct such a justice policy apt definition is review, the concludes that this majority day? permanently it Or a month? Or receded or not? Is a the water has year? the retreat of the Or since statehood? Or since Or a decade? say. Further, 14,000 years ago? majority glaciers does not how a The lands in owner to ascertain whether or a member submerged? Again, “may yet again” does question become say. not 473 Mich 667 Opinion Markman, J. it because “has served another Great Lakes state for years some hundred inis accord with the term’s limited development in our own state.” Ante at 693.30

However, even a cursory review of the Wisconsin cases cited the majority suggests a rule more in line with the decision of our Court of Appeals decision —a unanimously rejected by this Court —than the rule In Diana favored by Club, majority. Shooting hunter had floated his boat into an area overgrown by vegetation purpose for the of shooting wild ducks. The riparian that, owner claimed pursuant to its ownership river, soil beneath the the members of its orga- nization had the exclusive to hunt in those waters. Supreme Wisconsin Court recognized the riparian owner’s title in the river, soil beneath the but also found the waters themselves “should be free to all for commerce, travel, for recreation, and also for hunt- ing and fishing, which are mainly now certain forms of Club, recreation.” Diana Shooting supra at 271. It ultimately held that:

Hunting navigable on waters is lawful when it is con- strictly they to such navigable waters while are in a fined stage, and ordinary between the high boundaries of water marks. When so confined it is immaterial what the char- acter of the may stream or water is. deep shallow, It be clear or aquatic covered with vegetation. By ordinary highwater mark point is meant the on the bank up or shore to presence which the and action of the water is so continuous as to leave a by erosion, distinct mark either destruction of vegetation, terrestrial easily recog- or other added).] [Id. nized (emphasis characteristic. at 272 30 Shooting While the Diana by Club definition has been used Wiscon nearly years, sin for express one hundred the initial definition of the edge principle predates water’s Shooting in Warner the Diana Club rule years. sixteen 733 v Goeckel Glass Opinion Markman, J. re- Diana Club majority, Shooting Thus, unlike the the waters themselves. activity to trust stricted Court confirmed Indeed, Supreme the Wisconsin 236; Jantz, v 180 Wis Doemel interpretation (1923), noting that: NW Shooting on the in the Diana Club Case said

What was game up to pursue of hunter to his subject of the mark, merely affirmed the ordinary high-water ordinary hunting to the pursue sport navigable river while the waters of high-water mark of a mark.[31] actually extended to such the river that suggested Court later Supreme The Wisconsin ordinary Diana Club’s definition Shooting mark to the Great Lakes. State applied water also (1987).32 91; Trudeau, 139 2d 408 NW2d 337 v Wis Trudeau, along Superior sought owner Lake a littoral “ordinary an area build condominiums within below Superior. of Lake The littoral owner high water mark” and, question navigable area in was not argued The therefore, he was entitled to use the lake bed. disagreed, reasoning Court Supreme Wisconsin “ordinary high extended to the stаte’s interest Id. at 103. In Superior. discussing mark” of Lake applied trust doctrine as it to inland Doemel addressed majority applying Interestingly, while the claims that a case lakes. perfectly legitimate apply in the littoral to rivers is context, inapplicable, presumably because it it concludes that Doemel is applies to an inland lake. also invoked in a that its new definition was observes State, Slips Supreme Court in R WDocks & footnote the Wisconsin (2001) Trudeau, 497, 510 2; (citing supra, for 2d n 628 NW2d 781 Wis definition). However, the R W Docks case involved Ante at 692. taking, issue a regulatory based on Wisconsin’s refusal to claimed ordinary high mark not at dredging permit. the water was The location of question public access to land did not involve a issue and the case basing Thus, majority apparently public its new trust. the within the Supreme of another state’s Court. from the decision rule on mere dictum 473 Mich 667 Opinion by Markman, J. mark,” “ordinary high water the court cited with ap- proval definition from Diana Shooting Club. How- ever, the ultimate disposition court’s that case was to findings concerning remand “for portions those higher site than 602 feet level, [above sea according Datum], the International [ordinary Great Lakes high water Superior.” Thus, mark] Lake Id. at 110. Trudeau held that “ordinary high water mark” is defined the International Great Lakes Datum (IGLD) level—the very standard that has unani- been rejected mously justices of this Court.33 summarize, To none of the few Wisconsin cases cited by the majority addresses the issue of whether public has a right currently to use unsubmerged land “ordinary below the high water mark” trust Indeed, purposes. Wisconsin trust doctrine specifically public’s limits the submerged use of lands to when those lands are covered the waters themselves. addition, to the extent that the majority believes that Trudeau makes the Diana Club Shooting definition applicable Lakes, to the Great the majority fails to note that Trudeau adopted IGLD definition of the “or- dinary high water mark” on Trudeau, the Great Lakes. majority, apparently recognizing vagueness of its definition “ordinary high mark,” observes, precise “the location of the ordinary high any given water mark at site on the shores of our Great question majority Lakes remains a again of fact.” Ante at 694. While the example “question cites Trudeau as an such a how of fact” can be answered, 20, neglects adopted ante at 692 n it to note that Trudeau (IGLD) ordinary high International Great Lakes Datum definition of Trudeau, supra However, majority water mark. at 110. has held that Submerged (GLSLA), the Great Lakes Lands Act which also uses that datum, dispositive defining is not the landward majority that, trust. Ante at suggest despite 681-685. Does the mean to holding dispositive, this Court’s that the GLSLA is not the IGLD is still determining ordinary high relevant in the location of the water mark for purposes say. in this state? The does not v Goeckel Glass Opinion J. Maekman, In determining at 110. the location of the “ordi- mark,” nary high specifically water Trudeau relied on following the evidence: management specialist,

The DNR’s area water Richard Knitter, that he testified determined the lake’s OHWM [ordinary high approximately mark] mile one-half protected from the location a site at a with clear erosion line that free was from excessive wave action. Knitter then determined site’s elevation 602 feet that this was I.G.L.D. He transferred the elevation of the to a OHWM site projeсt points number of at the site and concluded that approximately Superior’s half of the site was below Lake surveyor developers’ did OHWM. not determine the Superior. [Id. OHWM of the site or Lake at 106-107.] “[a]ny The court concluded that part site below 602 feet is within the Lake I.G.L.D. OHWM of therefore Superior protected upon is lake-bed building prohibited.” which Id. at 109. The presence single, of this clear definition stands stark contrast to the vague ever-changing, “fact-specific,” “ordinary newly promulgated by water mark” the majority. Court, In contrast to the Supreme Wisconsin this Court expends energies explaining why its our Lakes Great Submerged (GLSLA), Lands Act MCL seq., 324.32501 et IGLD, which the upon dispositive relies is not in defin- ing landward trust. Ante at 681-685. stating are persuaded adopt [the “we to “ordinary

Diana Club definition of Shooting high water to term clarify long mark”] used but little defined in 692, majority our ante at jurisprudence,” adopts state, law of another without much to explanation as why among that law has been chosen from the laws of or, even more the law fifty significantly, why states other any necessary replace state is seen Further, majority law of long-settled Michigan. 473 Mich 667 Opinion by Maekman, J. state, that other adopts only part again of the law of it explanation why without much as to has chosen to adopt parts Finally, other state’s law. compound inexplicable process, fails significant accord to the manner in consideration which interpreted courts of other state have its own law, misconstruing even the few process decisions to which it gives consideration.

Even absent differences between Wisconsin law, Michigan the Diana Club standard Shooting was derived the very from different context of riparian property.34Undeterred, the majority simply utilizes explanation standard without of how it should be modi- fied for on the application Great Lakes. The result ais doubly definition that is vague, majority because not to explain fails what kind of “distinct mark” is “easily considered to be so recognizable” that it can be allowed to determine public trust, the limits of the but it provide any also fails to time frame determining how “presence “continuous” the and action of the water” in must be order to leave a such mark. The majority fails define either of these in terms a manner that will the public enable or owners to determine which lands are within the public trust. What kind of “distinct mark” sufficiently is “recogniz- to bring unsubmerged able” land scope within the majority Shooting The observes that the Diana Club definition is not meanings previously recognized Michigan.” “far removed from in Ante support, majority 324.30101®, part 692. In cites MCL a However, current version of the former Inland Lakes and Streams Act. majority acknowledge expressly fails to that this statute states that it 324.30101(f). apply does not to the Great Lakes. MCL I also assume ‍​‌​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌​‌​​‌‌​​‌​​‌‌​‌​‌​‌​‌​​‌‍that majority characterizing its definition as “not far removed” from which, fact, Michigan— another definition— that has been the law acknowledging, euphemistically, adopting albeit that it is a new rule. majority adoption The alternates between of new rules and disclaim ing adopted that it has such new rules. Glass v Goeckel Opinion by Maekman, J. it at which wet point trust? Since cannot be way dry majority having sands —the give sands of this dissent —is this “distinct rejected position a the waves have deposited mark” function where a function of where debris has been seashells? Is it it a function of where some line of washed ashore? Is identified? Or is it a function of vegetation can be where majority no The longer standing? sand castles are does Moreover, even if the or the say. not mark,” owner could discern the relevant “distinct how persons would such determine how “continuous” the “presence and action of water” has been— indeed a mark. It cannot leaving must be— such be limited waves,” the “current ebb flow of the as that too position majority rejects. is the of this dissent which the month, How continuous then is “continuous”? Is it a a season, year, century, epoch? Again, a or an majority say. does not

Moreover, the majority apparently would expand private access to littoral lands even beyond its “ordinary new definition of the water mark.” “ states, ‘where the bank or shore at any particular place impos- is of such character that it is sible or to ascertain where the of ordi- point difficult is, mark nary high-water may recourse be had to other places on the bank or shore of the same stream or lake given to determine whether a stage water is above or ” ordinary high-water 691, below mark.’ quot- Ante Club, ing Diana Shooting (emphasis at 272 added). the majority by say Does intend this to that the public may private property now cross onto littoral in “ordinary high order to determine where the new water so, If mark” lies? the would seem to have access beyond “ordinary high to such even the water only apparent public’s mark.” The limitation on the “ordinary high of access is that the water mark” 473 Mich 667 by

Opinion J. Markman, the to ascertain. Given that under must be “difficult” “ordinary high new definition the majority’s than difficult to anything mark” never be other will and, majority admits, generally the will ascertain — ap- of fact” ante at 694—there “question constitute for access the pears potential be considerable beyond littoral lands even public upon private Still, “ordinary high majority water mark.” is that are indisposed any questions to answer most determining private where and dispositive course, In rights begin ques- and end. eventual these tions, indispensable so to the determination of indi- property rights, vidual will have to be addressed (DNR) Department virtually of Natural Resources with guidance no from this Court. DNR, leaving questions majority such

adopts premises very of administrative law the law, by different realm of critical defining questions property rights not in well-understood boundaries, specific terms conduce toward but in language drawn from the modern pro- administrative vague empty given meaning cess which and terms are by regulatory DNR, agencies, such as with subse- quent deferential pre- review courts. This is scription uncertainty, uncertainty a prescrip- tion for litigation, eyes with its wide open give Michigan has chosen to both.

Further, majority’s unsubmerged inclusion of lands the public within trust because “the lake has not receded from that permanently point may yet again exert its influence to that ante at up point,” conflicts with the traditional common-law definition of law, trust doctrine. At common the high “ water mark was defined as ‘the line of the medium 739 Glass v Goeckel by Opinion Markman, J. high springs tide and the All land neaps.[35] between below that line is more often than not covered at high said, water, may justly language and so be in the of Lord ” Hale, ordinary to be covered flux of the sea.’ Consolidated, 25, Borax at quoting Attоrneu- Chambers, 206, 217; De M & 43 Eng General G G (1854).36 tides move it Rep High with moon as around the Earth. At revolves most ocean shores world, throughout high two tides and two low tides occur A every day.37 typical seaport lunar will alternate high every Thus, between and low tides about six hours. may while the ocean bed be temporarily exposed to “spring large The tide” is defined as “the rise and fall of the tide at “neap” or soon after the new or full moon.” The tide is defined as “those tides, midway tides, spring height.” between that attain the least (1997). CollegeDictionary Random House Webster’s 36 majority asserts that I as an offer this “authoritative definition ordinary high water mark” and that is somehow there a tension my majority’s between this definition and criticism of the creation of new majority recognize law in this case. Ante at 701 n 33. That the does not English ordinary high common-law definition of the water mark is surprising given not its novel definitions of the term hear no According majority: resemblance. flow, reaching point [The] ebb and thus one on the shore at low reaching point high tide and a more landward tide. The latter high constitutes the water mark on a tidal shore. The land submerged

between this mark and the low water mark is on a basis, regular remains so to the trust doctrine as added).] “submerged (emphasis land.” at 686 \Ante Thus, appears position it that the takes the that the highest high However, trust extends to the tide. as noted in Borax Consolidated, tide, ordinary high highest high water mark is not high spring neaps, but rather the medium tide between the which is rarely exposed open twenty-four air for more than hours. day point A lunar is the time it takes for the moon to return to a twenty-four fifty approximately above the Earth: hours and minutes. “day, <http://www.ngs.noaa.gov/CORS See definition of lunar” at (accessed 2005). Proxy/cocoon/glossary/xml/D.xml> June 473 Mich 667 Opinion Markman, J. tide, again land will be during air low such

open tide. Because the land during the next submerged water, the action of the continually being affected scope English the common-law it falls within air. doctrine, exposed open even when are contrast, acting forces on the Great Lakes tidal Warner, 239, effect,” “trifling of such a without instrum precise cannot even be measured they marks, Thus, water “high” ents.38 there is no or “low” Instead, scientifically are understood. lake lev they as seasonally by operation are affected the natural els hydrologic cycle, precipitation, which includes condensation, transpiration.39 During evaporation, winter, dry, air cold and above lakes is relatively temperature to the warm compared result, evaporates lake. As a the amount of water that the air that condenses vapor into exceeds water on the Any precipitation back into the lakes. that falls snow, in surrounding lands the lakes is the solid form of and, thus, is not returned to the lake via runoff. As result, the lake than it in more water leaves enters season, in a decline in lake resulting levels.40As snow early melt in the runoff into the lakes begins spring, warm, Further, temperatures increase, as increases. Administration, According Atmospheric to the Oceanic and National (5 cm) spring height. than 2 inches tide the Great Lakes is less See (accessed 2005). 24, <http://co-ops.nos.noaa.gov/faq2.html> June 39 See, generally, Army Corps Engineers and United States the Great Commission, Living (1999), pp publi with the Lakes Lakes 13-18. This (accessed may <http://www.glc.org/hving/> cation be accessed at June 2005). 24, 40 According Army Corps Engineers, United States to the lowest Superior average lake level from 1918 to 2003 occurred as follows: Lake (March, level); (February, Michigan feet Lakes and Huron 601.21 above sea level); (February, Lake St. 573.43 feet sea 578.48 feet above sea Clair above level). level); (February, and Lake Erie 570.8 feet above sea See <http://www.lre.usace.army.mil/greatlakes/hh/greatlakeswaterlevels/historic (accessed 2005). data/bngtermaveragemin-maxwaterlevels/> June y Glass Goeckel Opinion Markman, J. air relatively moist above the cold lakes evapora- limits tion an amount less than the rate of condensation. As result, average throughout water levels rise the spring ánd eventually peak during midsummer.41

These natural phenomena suggest unworkability placing “ordinary at the mark” it as is defined If the majority. “ordinary high water mark” is defined as a static then the boundary, public trust doctrine would include unsubmerged lands that are covered by the water an infrequent on basis. Under the English common-law definition, such lands should be treated a manner tides, i.e., similar to lands covered the spring are they not If trust doctrine. the “ordinary high water mark” is defined a floating boundary, then it nearly becomes impossible either a beach user or a littoral property owner to determine where the boundary is located. To account for hydrologic cycle, the “ordinary high water mark” would need to be redefined on a monthly Further, or seasonal basis. boundary would have to readjusted be on a year-by-year basis to account for long-term changes to lake levels by caused weather fluctuations. Since the Great experienced Lakes have periods three of extremely low levels, water in 1920s, mid-1980s, the late and mid- 1960s. Periods of extreme high water were experienced early 1950s, 1970s, in the early mid-1980s, and mid- 1990s. “point The on the bank or up shore to which the presence and action of the water is so continuous as to erosion, leave a distinct mark either by destruction of vegetation, terrestrial easily other recognized char- 41 According Army Corps Engineers, highest to the United States average Superior lake level from 1918 to 2003 occurred as follows: Lake (September, level); Michigan 602.23 feet above sea Lakes and Huron (July, level); (July, 579.43 feet above sea Lake St. Clair 574.77 feet above level). level); (June, sea Id. Lake Erie 571.95 feet above sea Mich 667 Opinion Markman, J. completely in a have been

acteristic” 1926 would Like- reached in 1986. point location than the different a year of each would be wise, February point point than the same different location completely “the Thus, definition of where year. any of each July of the water is so continuous as presence action erosion, mark either destruction of leave a distinct recognized char- vegetation, easily or other terrestrial on what method is used vary depending must acteristic” that level.42 to calculate “ordinary water mark” also fails majority’s the waterline changes account for to the location of First, unrelated to lake levels. wind

caused events at end of the forces can raise water one barometric If lake, causing opposite a in water level at the end. dip cease, suddenly on one end raising the forces the water fashion, in a alterna- may thе entire lake move see-saw in a tively rising falling “pendulum- on each end “seiche,” like” called can phenomenon, movement. This Second, days. last from minutes to hours to ice or the normal foreign plants may bodies such as block flow Lakes, of rivers and channels connected to the Great in the an increase or decrease thereby causing Finally, of connected lakes. most of the Great level slowly rising, Lakes basin is as the Earth’s crust re- weight glaciers bounds from the removed 14,000 years ago. covered the area around Because in the northern of the basin glaciers part were thickest region rebounding around Lake Superior, rate, nearly twenty-one century, inches a than faster result, are the rest of the basin. As the Great Lakes Huron, example, average yearly level of the lake in For on Lake average yearly The level of the 2003 was 577.07 feet above sea level. lake monthly average The from 1918 to 2003 was 578.94 feet above sea level. monthly average above The for June 2003 was 577.43 feet sea level. June, 2003, month of from 1918 to was 579.33 feet above sea level. y Goeckel Glass Opinion J. Maekman, increasingly to way in a that causes water “tipping” of the Lakes basin. portions in the southern Great pool in the northern receding is basin shoreline Thus, the “or- advancing in the southern basin. while waters, in it water mark” makes sense tidal dinary high in the nontidal Lakes does not make sense Great lake fluctua- irregular because of the nature of level tions.

Further, majority’s new definition fails to ac- count for those times when the waters of the Great mark,” go beyond “ordinary high Lakes water assuming that such an event could even occur under the majority’s majority justifies new definition. The its new Peterman, rule, on the basis of this Court’s statement “ 198, supra public’s right at ‘the limit of the is (Citation omitted.) ordinary high water mark....’” However, at that the Ante 701. also states trust doctrine “the public protect serves waters submerged Lakes and their lands . . . .” Ante at Great Thus, edge beyond 694. when the water’s is the “ordi- nary mark,” water there a conflict between the high is majority’s public right stated limit of the to the “ordi- mark” nary high submerged water and its inclusion lands within the owner or a public trust. Is member of the of sub- public understand use merged “ordinary high lands between the water mark” and the mean that edge water’s is forbidden? Does this swimming walking trapped a member of the is until the recedes to the within Great Lakes water mark”? “ordinary high water How does member the “ordi- or a owner determine where mark” a circumstance? Does nary water such limiting submerged “ordinary high access to a Warner, holding mark” conflict with our is, begins that the where the water Or is the deep “whether the water be or shallow”? MICH667 by Opinion Markman, J. silently quali- on Peterman somehow reliance majority’s the Lakes water levels on Great apply only fied to when mark”? The “ordinary water high lie below the say. does not again to contrast, right of access limiting public’s the

By i.e., at wet sands edge,” point the which the “water’s sands, of the various forces way dry to addresses all give consistent with the common- at work on the lakes and is First, the “wa- high of the water mark. law definition dynamic the natural forces edge” principle reflects ter’s the waters of the Great at on the Great Lakes. As work give move, the area where wet sands Lakes so too does title, The littoral owner’s way dry to sands. right rights, including it or her littoral and with his follows the movement possession, of exclusive Warner, the littoral explained As we water.43 end where the water is “whether rights owner’s shallow, it although grown up or be deep water be although navigation.” it be unfit for aquatic plants, Warner, point, at 239. At that state’s supra DNR, correctly by Id. begins. trust title As observed the wet sands the area “where the water is” includes Lakes have marked their where the waters of Great definition presence. current and continuous Because water, the sands fall such are infused with wet sands result, lands.” As a “submerged within the definition of give at which wet sands edge” point the “water’s edge marks the way dry sands. water’s 193-198, Peterman, However, littoral owner’s as noted in e.g., regulation the state. See MCL 324.32503 are statutorily filling altering (prohibiting defined or land below the (prohibiting permit), certain acts mark a MCL 324.32512 without permit), waterway 324.32512a and MCL maintenance without mowing removing vegetation except permitted (prohibiting DNR). Glass v Goeckel Opinion by Markman, J. submerged between and unsubmerged lands.44 This position position is consistent with the of the defendant Contrary littoral owners the instant case. to plain- tiffs of concern that she would expressions be forced to water, walk in the as a member she has always had along to walk the wet sands, abutting the Great Lakes. Because the wet sands are lands, submerged a littoral owner has had never right to prevent using member from such lands. I agree with the

While DNR’s inclusion of the wet lands, submerged sands as the DNR reaches the same namely erroneous conclusion as the Court of Appeals, that the littoral owner title only “ordinary holds to the high water mark.”45 This interpretation apparently is Hilt, following passage based on the from at supra 226: riparian The owner has exclusive use of the bank shore, may bathing and and erect houses and structures (45 pleasure 505; thereon for p his business C.J. 22 345; Orange 573, [N.S.] L.R.A. [94 Town v. Resnick Conn of 578; (1920)]); although 109 A 864 it also has been held that space he cannot extend structures into the between low (Thie- mark, high-water and without consent of the State Co, Railway 491; sen v. [78 75 Fla. 28 South. L.R.A. “grant right I claims that would an of exclusive possession unsubmerged to littoral landowners ... down to where land ends, edge... signifi [I] which locate at the water’s .” Ante at A699. cantly precise my position more statement of is that the land littoral right possession unsubmerged land, owner has the of exclusive while right submerged has the to use land under the trust edge, i.e., give way dry doctrine. The water’s where the wet sands sands, submerged unsubmerged land, where land meets marks limit rights. of each of these position Attorney The DNR’s is consistent with the General’s opinion noting in 1978 that title to between the state, edge right mark and in the water’s remains but the of exclusive OAG,1977-1978, 5,327, p (July use remains in the littoral owner. No 1978). 6, 473 Mich Opinion by Mabkman, J. 718]).

1918E, held that the has no And it has been dry high-water right passage land between low and of over owner, riparian mark the exclusive use is but Jantz, [supra]. although the title is the State. Doemel v However, represent statement from Hilt does not this Rather, part it is cited as of a conclusion of this Court. that Kavanaugh this Court’s to the notion response substantially absolute title... “gave State at any public purposes.” or to use them for Id. upland theory justification as a for main- rejecting 224. this we noted that the “title” conferred taining Kavanaugh, to the state in was confined “to the same Kavanaugh lake, i.e., that the applies trust which to thе bed of for the sovereign capacity State has title its preservation public rights navigation, fishing, of the Thus, right Id. “the to use hunting.” State lake, for the except purposes, bed is to that ....” Id. at riparian subordinate owner at citing Orange, supra support Town 578. To point, Hilt noted that “it has been held that no over land passage dry has between low high-water mark but the exclusive use is in the Hilt, owner, the title in the State.” riparian although 226, citing Doemel. that Hilt not adopting This demonstrates was Doemel, from using rule but rather was case to give demonstrate that did not unlimited Kavanaugh therefore, and, granted title to the state that the title by Kavanaugh state was not valid basis for Thus, maintaining boundary. the meander line as a title to holding basis for state holds unsubmerged up high land to the so-called water mark is to misunderstand the of Hilt’s reference importance to Doemel. It is clear that when Hilt said that a littoral goes edge, owner’s title to the water’s it meant “water’s v Goeckel Glass by Opinion Maekman, J. said that the state’s title Likewise, when Warner edge.” is, it meant the water the water “where begins where is.”

Second, is consistent edge” principle the “water’s the high the common-law definition of with law, high At the area of medium tide mark.46 common dry twenty-four seldom be for more than hours would (1860). Benson, 18, Lorman v 8 Mich other time. words, high land at or below medium tide was daily ocean tidal generally during covered Therefore, tidal land cycle. was considered “waste “ capable ordinary land” that was ‘not cultivation ” (citation omitted). Similarly, Id. at 28-29 occupation.’ case, are inundated being the instant the wet sands the current ebb and flow of the waves. with water However, fluctuate, any when lake levels land that is no subject to the and flow of the waves becomes longer ebb land, “ordinary unsubmerged which is suitable and, therefore, affected occupation” as with lands tides, thé spring scope is not within doctrine. Finally, edge” significantly the “water’s principle majority’s “ordinary high more workable than the wa- can, A by simple ter mark.” member of the observation, photographs, without the use of “aerial government survey maps. [three- .. stereo 20, n photographs,” dimensional] ante at 692 determine 46Although agree applies I do not that the “wet sands area” as it to the “ordinary equivalent trust doctrine is to the water mark” as navigational servitude, applies it at least one commentator has ordinary high observed that the “wet beach” is the area “between Pratt, ordinary legal rights low watermark watermark.” Lakes, Prop public in the the Great 10 Mich Real Rev foreshores of (1983). commentator, According “high water mark” and to this edge” are, practical purposes, the “water’s for all the same the nontidal Great Lakes. 473 Mich 667 Opinion by Markman, J. seeking

where he or she allowed to use land without permission.47 the littoral owner’s When waters recede, land longer subject that is no to the current ebb and flow waves will become land unsubmerged and, therefore, will again be under the exclusive control of the littoral property owner. conclusion, Warner, as we noted in supra at

although dictum, “practically absence of tides makes low water mark identical for the purpose determining [along boundaries the Great edge” Lakes].” The “water’s principle recognizes this by reality defining of both the littoral prop- erty owner and the terms of the actual location of the water. This definition is consistent with the natural Lakes; forces at work on the Great it is consis- tent with the scope common-law doctrine; it is consistent with historical practice in it Michigan; and creates a public trust area that can readily be identified. The majority presented has no majority edge” principle provides claims that the “water’s no greater “clarity” edge” than its new rule and that the “water’s standard clarity.” constitutes a “charade might at Ante 702. The reader wish to ponder hand, this assertion. On the one the traditional standard for delineating private between lands— the standard that I would requires merely person distinguish retain— that a be able to between dryness, dry sands, wetness between wet sands and between where Supreme there is justice, water and where there is not. Even a I Court submit, reasonably would should be able to draw such distinctions. majority’s require person Contrast this to the test that would to locate point up “the presence on the bank or shore to which the and action of erosion, the water is so continuous as to leave a distinct mark either vegetation, easily recognized destruction of terrestrial or other charac majority attempt guidance teristic.” The does not even to offer meaning Rather, owners as to the of this standard. majority suggests expert identify witnesses will be able to this mark ..., using photographs government survey “aerial maps, the site’s present configuration, photographs [three-dimensional] and stereo ... .” Ante at 692 n 20. y Glass Goeckel Opinion J. Makkman, longer repre- rule no why longstanding reason competing between the sents a reasonable balance Yet, in this interests issue case. standard, operated this clear which has

discards history of our state to create harmonious most and littoral property relations between owners, it an standard replaces and with unknowable that littoral requires of its own invention “ordinary to guess owners and the where mark” is located. high water OF JUS PUBLICUM

III. MISUNDERSTANDING PRIVATUM/JUS what it has majority’s apply determination mark,” “ordinary high despite defined as law, rooted Michigan appears lack of foundation be misunderstanding of the distinction in its fundamental jus privatum jus publicum. The ma- between jority notes, correctly, submerged the title to the jus bifurcated; navigable lands of waters with rights to the and the publicum safeguarding jus privatum safeguarding private property rights, sub- Wallace, Nedtweg jus publicum. ject always to the (1927). 14, 20; However, rather than Mich 208 NW submerged lands, limit of the doctrine to application any conveyance of lakefront majority instead holds jus privatum, solely of the with the consists jus publicum including unsubmerged title lands state’s I “ordinary high disagree, water mark.” up jus publicum applies only instead that the believe submerged lands of the Great Lakes. jus privatum jus publi-

The distinction between Lorman, cum was first addressed this Court Lorman, supra. property abutting a former lessee claimed that he had a to use and the Detroit River 473 Mich 667 Opinion Markman, J. maintain a boom constructed in the water.48Under the law, English private common title to the bed navigable river was determined whether the river subject Lorman, was to the ebb and flow of the tides. However, at regardless 26-27. of who held the jus privatum, the private owner’s were limited to those uses that would not interfere with “the public easement of navigation[.]” rivers, Id. at In tidal 27. jus privatum was to the public’s “right of navigation over the whole bеd of stream at tide, water, and over the so far as it was practicable, all tides.” Id. at However, 27-28. the public’s rights too were not First, without limit. the public’s rights did not extend to commonly land “not submerged by the aver- age tides, ordinary high which would seldom any leave dry the shore more twenty-four than hours at a Second, time.” Id. at 29. the public’s use of the jus publicum was limited to rights,” i.e., “water the right of navigation and fishing. Id. at 30. No matter who held bed, title to the river the public’s right to use the river was always limited to the water itself. Because the sought former lessee to use the Detroit pur- River for poses other than navigation fishing, the Court deter- mined that the former lessee’s use was not superior to that of riparian and, the therefore, owner the riparian owner could an bring action for trespass.

The limitation jus publicum to use of the water itself expressed by was also this Court in McMorran Milling Co, Co v C H 301; Little 201 Mich 990 NW (1918).49In McMorran Milling, dredger entered into a chain, cable, etc., A serving “boom” is defined as “a to obstruct (1997). navigation.” College Dictionary Random House Webster’s dissenting opinion Sterling cites Justice Campbell’s Jackson, 488, 506-507; (1888), support jus 69 Mich NW 845 of its privatum/jus publicum analysis. Sterling majority Ante at 679. The owner, belongs riparian observed that title to the river bed but that Glass v Goeckel by Opinion Maekman, J. right riparian to for the remove owner with the contract government, federal bed. The from the river sand adversely dredging affect would that such concerned navigation, operation. dredger to cease ordered the riparian dredger complied order, the with this the After dredger demanding brought the continue suit owner began right pay Court its remove sand. This for the riparian noting analysis by the “holds that the owner legal jus privatum], [the it he takes and with title naked rights proprietary as are consistent with such navigation jus publicum], [the right and the control of (citation right.” congress omit- Id. at 314 of over “ ted). riparian ‘held at all title is Thus, the owner’s submerged lands to such use of times subordinate may flowing consis- over them as be the waters and of naviga- right of or demanded tent with ” omitted). (emphasis added; citation Id. at 310 tion.’ dredger evicted from that the was The Court concluded government, which on basis the river bed navigation superior right protect had title over the its riparian riparian Therefore, owner was not owner. payment date of eviction. after the entitled to further Id. at 318. holds lakes, the state both

Unlike rivers and inland privatum jus publicum jus to the sub- title Nedtweg, supra. merged Lakes. lands of the Great sought Nedtweg, thousand to lease several the state abutting Lake Clair that were land St. acres of relicted navigation. Sterling, supra public’s right is limited such title “using However, public’s in that limited to case were 500. navigation public highway bay purpose in the of a waters from the Id. at 501. Aside defendant’s] boat over it....” [the exclusively belonged navigation, river bed all other uses of the words, jus privatum riparian was owner’s riparian Id. In other owner. i.e., they publicum, only by expressly under us the uses allowed limited navigation. Id. [July- 473 Mich 667 Opinion Markman, J. submerged considered In so, law.50 order to do Legislature passed legislation authorizing long-term leases of such land to private individuals. The Depart- ment of Conservation leases, refused enter into such arguing that the submerged-in-law land was held in for the public and could not be conveyed. noted We the title to submerged land is bifurcated between the jus publicum and the jus privatum. Nedtweg, supra at 17. may not, by grant, The State surrender such

rights any more than it can police power abdicate the power government. other essential But this does not must, times, mean that the State at all propri- remain the of, over, etor as sovereign well as the underlying the soil navigable waters. [Id.]

In words, other jus may state priva- convey tum in submerged land, Great Lakes long as that conveyance does not interfere with the public’s “rights of navigation, hunting and fishing.” Id. at 18. The Court that, noted because the land in question was now dry it land, was no longer suited for the purposes protected by the jus publicum. Id. at 22. In other words, contrary to the majority’s understanding, while the “submerged” in question lands were still part of the public trust, the lease permissible was because there was no interference with the uses protected by the public trust doctrine.51 summarize,

To under the common law as it has developed in Michigan, the jus privatum held by (in either the adjoining property owner the case of (in rivers or lakes), iriland or by the state itself the case Lakes). jus case, Great either privatum 50 Nedtweg during Kavanaugh reign was decided cases. Nedtweg claims that the lands at issue in “set[] were apart trust.” Ante at 691. from the v Goeckel Glass Opinion Markman, J. the rights jus under subject public’s title is held are However, rights public’s jus publicum the publicum. Lorman, supra; themselves. to of the waters limited use Further, publicum the jus Milling, supra. McMorran private property to use public’s only protects fishing, and navigation, as purposes, such specific for no cases that There are hunting. Nedtweg, supra. jus publicum view that majority’s support un themselves to include beyond the water’s extends Lorman, at 29. On the Great land. submerged jus pub Lakes, jus privatum between overlap Legislature when the only play come into licum would lands to a third submerged conveyed portion the littoral own Because, argued previously, party. sands, unsub past title never extends wet er’s “ordinary and the the wet sands merged land between been, not, and never simply mark” is has high water jus publicum. part QUESTIONS RAISED BYMAJORITYOPINION

IV majority’s departure directly raised Questions include quo status in our state longstanding from the following:52 questions majority none of the maintains that this case “raises while, course, choosing poses,” to answer none [this dissent] that majority questions. is mistaken if it believes that Ante at 703. The these Michigan part replace of the law of with a selective it can settled law part state’s law— and the least clear of that other another state— indeed property legal relationship owners and the between littoral create a new legal questions and avoiding giving public, rise to new all the while section, questions as. generating litigation. set forth in this Each of the majority anticipate, great many I nor the can more that neither well as a majority’s legal system as a direct result of the into the will be introduced years subject cryptanalysis many to opinion. opinion This will be dispute up produce litigation to now there has where and will come clarity equally troubling, in the is once Perhaps law when been none. years property rights many again area of littoral established in the — 473 Mich 667 Opinion Mahkman, J.

(1) consequences Are there tax to the fact that the exclusive of littoral owners edge, would now extend not to the water’s but “ordinary high water mark”? (2) expanded Given has the lands doctrine, trust will there be a corresponding expansion of uses that are considered “inherent in the exercise of traditional given uses”? is, That trust now encompasses dry up “ordinary land to at least the mark,” are there new uses of these lands arguably public can be connected to traditional trust uses?

(3) always Given that there are more members of public may property the who wish to use a in a particular property manner than there are owners, permanent protections what exist to ensure that the Department political of Resources, Natural as a in- upon vagueness stitution, will not seize and lack majority opinion increasingly of definition of the to “public expense broaden the trust” at the of littoral property rights?

(4) implications majority’s opinion What are the rights property for the of other littoral owners on lakes properties other than the Lakes, Great whose also afford opportunities public? accessto recreational for the (5) majority’s public Given the conclusion that “the protect trust doctrine serves to resources,” what are implications majority’s opinion the rights for the proper-

of non-littoral owners, whose impact upon ties abut or have an state lands used purposes? for recreational now, likely from after unnecessary period what is to be an likely fractiousness and contention —it will come as a function of admin- private property rights. istrative determinations of y Glass Goeckel Opinion J. Markman,

Y CONCLUSION quo longstanding status not alter I would majority Michigan, therefore, The has I, dissent. (1) redefining quo by: the lands this status altered doctrine on basis trust “ordinary definition of Wisconsin’s (2)holding that the use for the first time mark”; and permitted unsubmerged lands is doctrine. identify any defects

The fails present state, that have endured since rules rules ofthis departure justify from the its statehood, that would edge” principle rules of its in favor of unclear “water’s present design. have created reason- The rules own rights between and harmonious balance able Under of littoral owners. and the the shore- rules, owner’s title follows the littoral these way dry give sands, line, i.e., the wet sands where may from time to time. Because be wherever boundary dependent natural condition of the on the is creating easily identifiable, thus, Lakes, it Great legal right public’s practical and workable rule. along private property of the Great the shores use always remain, been, within this as it has Lakes should realm. making majority’s decision flaw in the

The critical the millions law, not on the basis of it creates new year each between interactions that occur of amicable property public owners, but instead and lakefront dispute single in this of the aberrational on basis place law of a stable and well-understood In the case. century half and a for more than worked well that has property rights public and littoral of the to define the majority, litigation, minimize and to owners necessary present dispute, it finds reaction 473 Mich 667 Opinion by Markman, J. introduce a range of novel concepts into Michigan prop- erty law. Apart lacking any from present basis in Michigan law, these concepts essentially are undecipherable. Thus, in an area of the law in which stability and clarity are paramount, the majority offers rules that are obscure and subject will be to evolving definition by envirоnmen- tal regulatory agencies. Almost certainly, rules, these new in conjunction the majority’s with disinclination to define the critical aspects of rules, these will lead to an escalation in the disputes number of between members of the public and property owners along the Great Lakes. In the place harmony, there will be litigation.53 In place unobstructed beachfront, there will be fences. Five hundred now, cases from and after the expenditure of litigation enormous costs and legal resources, Michigan, if fortunate, it is will again once reach the state of equilibrium that it enjoys today and that it enjoyed has for many decades under current law. end, In the surprising it will not day-to-day rights be if the even to triggering beach-walk—the ostensible concern of this case—were to by majority’s For, be diminished place decision. in the of a rule in which property rights clearly protected, are place defined and and in the of a regime in property which most easily littoral owners have accommodated public’s interest in beach-walking, majority activities such as creates rule, a far properly more uncertain rights one in which have become more ambiguous uncertain, political regulation more definition. Just as some likely members of the are to become more “right” assertive in their claim property another, of a to use the so too will some owners purporting become more assertive to “defend” properties their from persons. the encroachments of such At least some of expected these owners can property rights be to assert their in circum today thought stances where unnecessary. may this has been It well be that legacy majority opinion proliferation along is the of fences

beaches of the Great Lakes. Fences and more fences. As a result of the majority’s replace clearly decision to longstanding understood and rules of private property rights with new rules which the trust is to be expanded manner, in an uncertain of both the and the likely protected. owner will become less well v Goeckel Glass Opinion Makkman, J. Appeals, of the Court of affirm the result I would Appeals opinion portion Court reverse “ordinary high giving to land below the state title longstanding principle of mark,” and reaffirm title owner’s extends that the littoral Hilt public’s legal rights unsubmerged under land and submerged extend to trust doctrine including lands, sands.54 wet agree majority does not establish I GLSLA Because with 11(A) trust, part I concur in the boundaries opinion. notes boundary of high mark as the regarding or low water serves whether the 687, citing People, Conserva ex rel Director trust.” Ante at (1961). 201, 205-206; Broedell, Broedell Mich 112 NW2d v tion high-water “language seemingly favorable to the ‍​‌​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌​‌​​‌‌​​‌​​‌‌​‌​‌​‌​‌​​‌‍cited two cases with Gerhardt, cases, Mich theory” of those Collins mark Id. at 206. One applies (1926), it 38; trust doctrine as defined the 211 NW Co, case, Land discussed America rivers. The other Veniceof If the island was island at the time of statehood. location of a certain only Lake submerged arose out of completely afterwards at statehood Warner, See, e.g., supra. belonged Clair, state. island to the then the St. water, high that, during periods island at issue The Court noted Court, submerged. According St. Clair Lake completely was Therefore, period water in 1837-1838. experienced such one submerged the time of statehood land at the island was because afterwards, in the state. to such was title arose out of the water

Case Details

Case Name: Glass v. Goeckel

Court Name: Michigan Supreme Court

Date Published: Jul 29, 2005

Citation: 703 N.W.2d 58

Docket Number: Docket 126409

Court Abbreviation: Mich.