Glass v. Goeckel

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W.
Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 29, 2005

JOAN M. GLASS,

Plaintiff-Appellant,

v No. 126409

RICHARD A. GOECKEL and KATHLEEN D. GOECKEL,

Defendants-Appellees.
_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

The issue presented in this case is whether the public

has a right to walk along the shores of the Great Lakes

where a private landowner ostensibly holds title to the

water’s edge. To resolve this issue we must consider two

component questions: (1) how the public trust doctrine

affects private littoral1 title; and (2) whether the public

1
Modern usage distinguishes between “littoral” and
“riparian,” with the former applying to seas and their
coasts and the latter applying to rivers and streams.
Black’s Law Dictionary (7th ed). Our case law has not
always precisely distinguished between the two terms.
Consistent with our recognition that the common law of the

1

trust encompasses walking among the public rights protected

by the public trust doctrine.

Despite the competing legal theory offered by Justice

Markman, our Court unanimously agrees that plaintiff does

not interfere with defendants’ property rights when she

walks within the area of the public trust. Yet we decline

to insist, as do Justices Markman and Young, that

submersion2 at a given moment defines the boundary of the

public trust. Similarly, we cannot leave uncorrected the

Court of Appeals award to littoral landowners of a “right

of exclusive use” down to the water’s edge, which upset the

balance between private title and public rights along our

Great Lakes and disrupted a previously quiet status quo.

Plaintiff Joan Glass asserts that she has the right to

walk along Lake Huron. Littoral landowners defendants

sea applies to our Great Lakes, see People v Silberwood,
110 Mich 103, 108; 67 NW 1087 (1896), citing Illinois
Central R Co v Illinois, 146 US 387, 437; 13 S Ct 110; 36 L
Ed 1018 (1892), we will describe defendants’ property as
littoral property. Although we have attempted to retain
consistency in terminology throughout our discussion, we
will at times employ the term “riparian” when the facts or
the language previously employed so dictate. For example,
a littoral owner of property on the Great Lakes holds
riparian rights as a consequence of owning waterfront
property. See Hilt v Weber, 252 Mich 198, 225; 233 NW 159
(1930).
2
We note that, in the view of our colleagues,
“submerged land” includes not only land that lies beneath
visible water, but wet sands that are “infused with water.”
See post at 52.

2

Richard and Kathleen Goeckel maintain that plaintiff

trespasses on their private land when she walks the

shoreline. Plaintiff argues that the public trust

doctrine, which is a legal principle as old as the common

law itself, and the Great Lakes Submerged Lands Act

(GLSLA), MCL 324.32501 et seq.,3 protect her right to walk

along the shore of Lake Huron unimpeded by the private

title of littoral landowners. Plaintiff contends that the

public trust doctrine and the GLSLA preserve public rights

in the Great Lakes and their shores that limit any private

property rights enjoyed by defendants.

Although we find plaintiff’s reliance on the GLSLA

misplaced, we conclude that the public trust doctrine does

protect her right to walk along the shores of the Great

Lakes. American law has long recognized that large bodies

of navigable water, such as the oceans, are natural

resources and thoroughfares that belong to the public. In

our common-law tradition, the state, as sovereign, acts as

trustee of public rights in these natural resources.

Consequently, the state lacks the power to diminish those

rights when conveying littoral property to private parties.

3
The Great Lakes Submerged Lands Act, formerly MCL
322.701 et seq., is now part of Michigan’s Natural
Resources and Environmental Protection Act, MCL 324.101 et
seq.

3

This “public trust doctrine,” as the United States Supreme

Court stated in Illinois Central R Co v Illinois, 146 US

387, 435; 13 S Ct 110; 36 L Ed 1018 (1892) (Illinois

Central I), and as recognized by our Court in Nedtweg v

Wallace, 237 Mich 14, 16-23; 208 NW 51 (1926), applies not

only to the oceans, but also to the Great Lakes.

Pursuant to this longstanding doctrine, when the state

(or entities that predated our state’s admission to the

Union) conveyed littoral property to private parties, that

property remained subject to the public trust. In this

case, the property now owned by defendants was originally

conveyed subject to specific public trust rights in Lake

Huron and its shores up to the ordinary high water mark.

The ordinary high water mark lies, as described by

Wisconsin, another Great Lakes state, where “‛the presence

and action of the water is so continuous as to leave a

distinct mark either by erosion, destruction of terrestrial

vegetation, or other easily recognized characteristic.’”

State v Trudeau, 139 Wis 2d 91, 102; 408 NW2d 337 (1987)

(citation omitted).4 Consequently, although defendants

4
We refer to a similarly situated sister state not for
the entirety of its public trust doctrine, but for a
credible definition of a term long employed in our
jurisprudence. Despite Justice Markman’s protestation over
upsetting settled rules, see, e.g., post at 37, we have

4

retain full rights of ownership in their littoral property,

they hold these rights subject to the public trust.

We hold, therefore, that defendants cannot prevent

plaintiff from enjoying the rights preserved by the public

trust doctrine. Because walking along the lakeshore is

inherent in the exercise of traditionally protected public

rights of fishing, hunting, and navigation, our public

trust doctrine permits pedestrian use of our Great Lakes,

up to and including the land below the ordinary high water

mark. Therefore, plaintiff, like any member of the public,

enjoys the right to walk along the shore of Lake Huron on

land lakeward of the ordinary high water mark.

Accordingly, we reverse the judgment of the Court of

Appeals and remand this case to the trial court for further

proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Defendants own property on the shore of Lake Huron,

and their deed defines one boundary as “the meander line of

Lake Huron.”5 Plaintiff owns property located across the

recourse to this persuasive definition because, as noted by
Justice Young, this area of law has been characterized by
critical terms receiving less than precise definition. See
post at 1.
5
We note that the parties do not contest the terms of
the deed by which defendants own their property. We take
as given that defendants hold title to their property

5

highway from defendants’ lakefront home. This case

originally arose as a dispute over an express easement.

Plaintiff’s deed provides for a fifteen-foot easement

across defendants’ property “for ingress and egress to Lake

Huron,” and she asserts that she and her family members

have used the easement consistently since 1967 to gain

access to the lake. The parties have since resolved their

dispute about plaintiff’s use of that easement.

This present appeal concerns a different issue:

plaintiff’s right as a member of the public to walk along

the shoreline of Lake Huron, irrespective of defendants’

private title. During the proceedings below, plaintiff

sought to enjoin defendants from interfering with her

walking along the shoreline. Defendants sought summary

disposition under MCR 2.116(C)(8) and (9), for failure to

state a claim upon which relief may be granted and for

failure to state a defense. Defendants argued that, as a

matter of law, plaintiff could not walk on defendants’

property between the ordinary high water mark and the lake

without defendants’ permission.

according to the terms of their deed. The record does not
reflect any argument over the meaning of the term “meander
line” in this context. The issue before us is not how far
defendants’ private littoral title extends, but how the
public trust affects that title.

6

 The trial court granted plaintiff summary disposition

under MCR 2.116(I)(2). Although the court concluded that

no clear precedent controls resolution of the issue, it

held that plaintiff had the right to walk “lakewards of the

natural ordinary high water mark” as defined by the GLSLA.

The Court of Appeals reversed the trial court's order

in a published opinion. 262 Mich App 29; 683 NW2d 719

(2004). It stated “[t]hat the state of Michigan holds in

trust the submerged lands beneath the Great Lakes within

its borders for the free and uninterrupted navigation of

the public . . . .” Id. at 42. The Court held that, apart

from navigational issues, the state holds title to

previously submerged land, subject to the exclusive use of

the riparian owner up to the water’s edge. Id. at 43.

Thus, under the Court of Appeals analysis, neither

plaintiff nor any other member of the public has a right to

traverse the land between the statutory ordinary high water

mark and the literal water’s edge.

We subsequently granted leave to appeal. 471 Mich 904

(2004).

STANDARD OF REVIEW

We review de novo the grant or denial of a motion for

summary disposition. Maiden v Rozwood, 461 Mich 109, 118;

597 NW2d 817 (1999). In a motion under MCR 2.116(C)(8),

7

“[a]ll well-pleaded factual allegations are accepted as

true and construed in a light most favorable to the

nonmovant.” Maiden, supra at 119. As we stated in Nasser

v Auto Club Ins Ass’n, 435 Mich 33, 47; 457 NW2d 637

(1990), “a motion for summary disposition under MCR

2.116(C)(9) is tested solely by reference to the parties’

pleadings.”

ANALYSIS

I. THE HISTORY OF THE PUBLIC TRUST DOCTRINE

Throughout the history of American law as descended

from English common law, our courts have recognized that

the sovereign must preserve and protect navigable waters

for its people. This obligation traces back to the Roman

Emperor Justinian, whose Institutes provided, “Now the

things which are, by natural law, common to all are these:

the air, running water, the sea, and therefore the

seashores. Thus, no one is barred access to the seashore .

. . .” Justinian, Institutes, book II, title I, § 1, as

translated in Thomas, The Institutes of Justinian, Text,

Translation and Commentary (Amsterdam: North-Holland

Publishing Company, 1975), p 65; see also 9 Powell, Real

Property, § 65.03(2), p 65-39 n 2, quoting a different

translation. The law of the sea, as developed through

English common law, incorporated the understanding that

8

 both the title and the dominion of the sea, and
of rivers and arms of the sea, where the tide
ebbs and flows, and of all the lands below high
water mark, within the jurisdiction of the Crown
of England, are in the King. Such waters, and
the lands which they cover, either at all times,
or at least when the tide is in, are incapable of
ordinary and private occupation, cultivation and
improvement; and their natural and primary uses
are public in their nature, for highways of
navigation and commerce, domestic and foreign,
and for the purpose of fishing by all the King’s
subjects. Therefore the title, jus privatum, in
such lands . . . belongs to the King as the
sovereign; and the dominion thereof, jus
publicum, is vested in him as the representative
of the nation and for the public benefit.
[Shively v Bowlby, 152 US 1, 11; 14 S Ct 548; 38
L Ed 331 (1894).]

This rule—that the sovereign must sedulously guard the

public’s interest in the seas for navigation and fishing—

passed from English courts to the American colonies, to the

Northwest Territory, and, ultimately, to Michigan. See

Nedtweg, supra at 17; accord Phillips Petroleum Co v

Mississippi, 484 US 469, 473-474; 108 S Ct 791; 98 L Ed 2d

877 (1988), quoting Shively, supra at 57.

Michigan’s courts recognized that the principles that

guaranteed public rights in the seas apply with equal force

to the Great Lakes. Thus, we have held that the common law

of the sea applies to the Great Lakes. See Hilt v Weber,

252 Mich 198, 213, 217; 233 NW 159 (1930); People v

Silberwood, 110 Mich 103, 108; 67 NW 1087 (1896). In

particular, we have held that the public trust doctrine

9

from the common law of the sea applies to the Great Lakes.6

See Nedtweg, supra at 16-23; Silberwood, supra at 108;

State v Venice of America Land Co, 160 Mich 680, 702; 125

NW 770 (1910); accord Illinois Central I, supra at 437.

Accordingly, under longstanding principles of

Michigan’s common law, the state, as sovereign, has an

obligation to protect and preserve the waters of the Great

Lakes and the lands beneath them for the public.7 The state

serves, in effect, as the trustee of public rights in the

Great Lakes for fishing, hunting, and boating for commerce

or pleasure. See Nedtweg, supra at 16; Venice of America

Land Co, supra at 702; State v Lake St Clair Fishing &

6
In this decision, we consider the public trust
doctrine only as it has applied to the Great Lakes and do
not consider how it has applied to inland bodies of water.
7
Although not implicated in this case, we note that
the Great Lakes and the lands beneath them remain subject
to the federal navigational servitude. This servitude
preserves for the federal government control of all
navigable waters “for the purpose of regulating and
improving navigation . . . .” Gibson v United States, 166
US 269, 271-272; 17 S Ct 578; 41 L Ed 996 (1897).
“[A]lthough the title to the shore and submerged soil is in
the various States and individual owners under them, it is
always subject to the servitude in respect of navigation
created in favor of the Federal government by the
Constitution.” Id. at 272. Apart from this servitude, the
federal government has relinquished to the state any
remaining ownership rights in the Great Lakes. See 43 USC
1311.

10

Shooting Club, 127 Mich 580, 586; 87 NW 117 (1901); Lincoln

v Davis, 53 Mich 375, 388; 19 NW 103 (1884).

The state, as sovereign, cannot relinquish this duty

to preserve public rights in the Great Lakes and their

natural resources. As we stated in Nedtweg, supra at 17:

The State may not, by grant, surrender such
public rights any more than it can abdicate the
police power or other essential power of
government. But this does not mean that the
State must, at all times, remain the proprietor
of, as well as the sovereign over, the soil
underlying navigable waters. . . . The State of
Michigan has an undoubted right to make use of
its proprietary ownership of the land in
question, [subject only to the paramount right
of] the public [to] enjoy the benefit of the
trust.

Therefore, although the state retains the authority to

convey lakefront property to private parties, it

necessarily conveys such property subject to the public

trust.

At common law, our courts articulated a distinction

between jus privatum and jus publicum to capture this

principle: the alienation of littoral property to private

parties leaves intact public rights in the lake and its

submerged land. See Nedtweg, supra at 20; McMorran Milling

Co v C H Little Co, 201 Mich 301, 313; 167 NW 990 (1918);

Sterling v Jackson, 69 Mich 488, 506-507; 37 NW 845 (1888)

(Campbell, J., dissenting); see also Collins v Gerhardt,

11

237 Mich 38, 55; 211 NW 115 (1926) (Fellows, J.,

concurring) (recognizing the “different character” of the

rights held by the federal government as proprietor and as

trustee in an inland navigable stream); Lorman v Benson, 8

Mich 18, 27-28 (1860) (reciting the common-law distinction

between jus publicum and jus privatum in a case involving

ownership of a riverbed).8

Jus publicum refers to public rights in navigable

waters and the land covered by those waters;9 jus privatum,

in contrast, refers to private property rights held subject

8
Indeed, other states also recognize the distinction
between private title and public rights. See, e.g., State
v Longshore, 141 Wash 2d 414, 427; 5 P3d 1256 (2000) (“The
state’s ownership of tidelands and shorelands is comprised
of two distinct aspects--the jus privatum and the jus
publicum.”); Smith v State, 153 AD2d 737, 739-740; 545
NYS2d 203 (1989) (“This doctrine grows out of the common-
law concept of the jus publicum, the public right of
navigation and fishery which supersedes a private right of
jus privatum.”) (citations omitted); Bell v Town of Wells,
557 A2d 168, 172-173 (Me, 1989) (stating that the different
types of title in the same shore property “remain in force"
to this day); see also R W Docks & Slips v State, 244 Wis
2d 497, 509-510; 628 NW2d 781 (2001) (applying the public
trust doctrine as adopted in its state constitution).
9
See Black’s Law Dictionary (7th ed), defining “jus
publicum” as “[t]he right, title, or dominion of public
ownership; esp., the government’s right to own real
property in trust for the public benefit.”

12

to the public trust.10 As the United States Supreme Court

explained in Shively, supra at 13:

In England, from the time of Lord Hale, it
has been treated as settled that the title in the
soil of the sea, or of arms of the sea, below the
ordinary high water mark, is in the King, except
so far as an individual or a corporation has
acquired rights in it by express grant or by
prescription or usage; and that this title, jus
privatum, whether in the King or in a subject, is
held subject to the public right, jus publicum,
of navigation and fishing. [Citations omitted.]

Thus, when a private party acquires littoral property from

the sovereign, it acquires only the jus privatum. Our

courts have continued to recognize this distinction between

private title and public rights when they have applied the

public trust doctrine. Public rights in certain types of

access to the waters and lands beneath them remain under

the protection of the state. Under the public trust

doctrine, the sovereign never had the power to eliminate

those rights, so any subsequent conveyances of littoral

property remain subject to those public rights. See

Nedtweg, supra at 17; see also People ex rel Director of

Conservation v Broedell, 365 Mich 201, 205; 112 NW2d 517

(1961). Consequently, littoral landowners have always

10
See id., defining “jus privatum” as “[t]he right,
title, or dominion of private ownership.”

13

taken title subject to the limitation of public rights

preserved under the public trust doctrine.

II. THE SCOPE OF THE PUBLIC TRUST DOCTRINE

Having established that the public trust doctrine is

alive and well in Michigan, we are required in this appeal

to examine the scope of the doctrine in Michigan: whether

it extends up to the ordinary high water mark or whether,

as defendants argue, it applies only to land that is

actually below the waters of the Great Lakes at any

particular moment.

A. THE GREAT LAKES SUBMERGED LANDS ACT

Plaintiff argues that the Legislature defined the

scope of the public trust doctrine and established the

outer limits of the doctrine in the GLSLA, thus supplanting

our case law. This act, according to plaintiff, manifests

a legislative intent to claim all land lakeward of the

ordinary high water mark. Thus, plaintiff claims that the

public trust extends to all land below the ordinary high

water mark as defined in the act, which states that “the

ordinary high-water mark shall be at the following

elevations above sea level, international Great Lakes datum

of 1955: Lake Superior, 601.5 feet; Lakes Michigan and

Huron, 579.8 feet; Lake St. Clair, 574.7 feet; and Lake

Erie, 571.6 feet.” MCL 324.32501.

14

 We find plaintiff’s reliance on the GLSLA to be

misplaced. First, the act does not show a legislative

intent to take title to all land lakeward of the ordinary

high water mark. MCL 324.32502 provides:

The lands covered and affected by this part
are all of the unpatented lake bottomlands and
unpatented made lands in the Great Lakes,
including the bays and harbors of the Great
Lakes, belonging to the state or held in trust by
it, including those lands that have been
artificially filled in. The waters covered and
affected by this part are all of the waters of
the Great Lakes within the boundaries of the
state. This part shall be construed so as to
preserve and protect the interests of the general
public in the lands and waters described in this
section, to provide for the sale, lease,
exchange, or other disposition of unpatented
lands and the private or public use of waters
over patented and unpatented lands, and to permit
the filling in of patented submerged lands
whenever it is determined by the department that
the private or public use of those lands and
waters will not substantially affect the public
use of those lands and waters for hunting,
fishing, swimming, pleasure boating, or
navigation or that the public trust in the state
will not be impaired by those agreements for use,
sales, lease, or other disposition. The word
“land” or “lands” as used in this part refers to
the aforesaid described unpatented lake
bottomlands and unpatented made lands and
patented lands in the Great Lakes and the bays
and harbors of the Great Lakes lying below and
lakeward of the natural ordinary high-water mark,
but this part does not affect property rights
secured by virtue of a swamp land grant or rights
acquired by accretions occurring through natural
means or reliction. For purposes of this part,
the ordinary high-water mark shall be at the
following elevations above sea level,
international Great Lakes datum of 1955: Lake
Superior, 601.5 feet; Lakes Michigan and Huron,

15

 579.8 feet; Lake St. Clair, 574.7 feet; and Lake
Erie, 571.6 feet.

The first sentence of this section states that the act

applies only to “unpatented lake bottomlands” and

“unpatented made lands.” The fourth sentence, however,

defines “land” or “lands” in the act as including not only

the bottomlands and made lands described in the first

sentence, but also “patented lands in the Great Lakes and

the bays and harbors of the Great Lakes lying below and

lakeward of the natural ordinary high-water mark . . . .”11

Thus, the act covers both publicly owned land (the lake

bottomlands and made lands described in the first sentence)

and privately owned land that was once owned by the state

(patented land below the ordinary high water mark). In

other words, the act reiterates the state’s authority as

trustee of the inalienable jus publicum, which extends over

both publicly and privately owned lands. The act makes no

claims to alter the delineation of the jus privatum of

individual landowners.

Moreover, the act never purports to establish the

boundaries of the public trust. Rather, the GLSLA

establishes the scope of the regulatory authority that the

11
A land patent is “[a]n instrument by which the
government conveys a grant of public land to a private
person.” Black’s Law Dictionary (7th ed), p 1147.

16

Legislature exercises, pursuant to the public trust

doctrine. Indeed, most sections of the act merely regulate

the use of land below the ordinary high water mark.12 The

only section of the act that purports to deal with property

rights is § 32511, MCL 324.32511:

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

12
Section 32503 provides that the Department of
Environmental Quality (DEQ) may enter into agreements
regarding land use or alienate unpatented land to the
extent that doing so will not impair “the public trust in
the waters . . . .” MCL 324.32503. Section 32504 governs
applications for deeds or leases to unpatented lands. MCL
324.32504. Section 32504a concerns the restoration and
maintenance of lighthouses. MCL 324.32504a. Section 32505
covers unpatented lake bottomlands and unpatented made
lands, again providing that such lands may be conveyed as
long as the public trust “will not be impaired or
substantially injured.” MCL 324.32505. Sections 32506
through 32509 concern the valuation of unpatented lands and
various administrative matters (with § 32509 delegating
authority to promulgate rules to the DEQ). MCL 324.32506
through 324.32509. Section 32510 establishes that a
violation of the act is a misdemeanor punishable by
imprisonment or a fine. MCL 324.32510. Prohibited acts
are defined in § 32512, MCL 324.32512, with § 32512a, MCL
324.32512a, specifically focusing on the removal of
vegetation. Sections 32513 and 32514 return to
administrative matters, such as applications for permits
and public notice of hearing. MCL 324.32513 and 324.32514.
Section 32515, MCL 324.32515, deals with enlargement of
waterways, and § 32516, MCL 324.32516, returns again to the
removal of vegetation.

17

As shown previously, a vital distinction in public trust

law exists between private title (jus privatum) and those

public rights that limit that title (jus publicum).

Section 32511 only establishes a mechanism for landowners

to certify the boundary of their private property (jus

privatum). The boundary of the public trust (jus

publicum)—distinct from a boundary on private littoral

title—remains a separate question, a question that the act

does not answer.

Finally, plaintiff also relies on the following

language in § 32502 to argue that the GLSLA establishes the

scope of the public trust doctrine:

This part [the GLSLA] shall be construed so
as to preserve and protect the interests of the
general public in the lands and waters described
in this section, to provide for the sale, lease,
exchange, or other disposition of unpatented
lands and the private or public use of waters
over patented and unpatented lands, and to permit
the filling in of patented submerged lands
whenever it is determined by the department that
the private or public use of those lands and
waters will not substantially affect the public
use of those lands and waters for hunting,
fishing, swimming, pleasure boating, or
navigation or that the public trust in the state
will not be impaired by those agreements for use,
sales, lease, or other disposition.[13]

13
MCL 324.32502.

18

Again, plaintiff’s reliance on this section is misplaced.

This sentence states that the act will be construed to

protect the public interest. But that rule of construction

begs the question and cannot resolve whether the public has

an interest in a littoral property in the first place. It

provides no reason to expand the public trust beyond the

limits established at common law. Thus, we must look

elsewhere to determine the precise scope of the public

trust to which § 32502 refers.14

B. THE PUBLIC TRUST DOCTRINE AS APPLIED TO THE GREAT LAKES

Because the GLSLA does not define the scope of the

public trust doctrine in Michigan, we must turn again to

our common law.

In applying the public trust doctrine to the oceans,

courts have traditionally held that rights protected by

this doctrine extend from the waters themselves and the

lands beneath them to a point on the shore called the

14
The Legislature has recognized the public trust in
other contexts as well. As early as 1913, the Legislature
had made provision for the disposition and preservation of
the public trust by entrusting trust lands and waters to
the care of the predecessor of the DEQ. See 1913 PA 326,
1915 CL 606 et seq.; see also Nedtweg, supra at 18, 20
(upholding the constitutionality of the act because any
authorized uses would yield to the “rights of the public”).
In addition, the Legislature has conveyed small fractions
of the lakes and shoreline to private parties, though only
after ensuring that such conveyances did not disturb the
public trust. See, e.g., 1954 PA 41; 1959 PA 31; 1959 PA
84.

19

“ordinary high water mark.” See, e.g., Shively, supra at

13; Hardin v Jordan, 140 US 371, 381; 11 S Ct 808; 35 L Ed

428 (1891); see also Hargrave’s Law Tracts, 11, 12, quoted

in Shively, supra at 12 (“‘The shore is that ground that is

between the ordinary high water and low water mark [and

this ground belongs to the sovereign.]’”). The United

States Supreme Court described this common-law concept of

the “high water mark” in Borax Consolidated, Ltd v Los

Angeles, 296 US 10, 22-23; 56 S Ct 23; 80 L Ed 9 (1935):

The tideland extends to the high water mark.
This does not mean . . . a physical mark made
upon the ground by the waters; it means the line
of high water as determined by the course of the
tides. By the civil law, the shore extends as far
as the highest waves reach in winter. But by the
common law, the shore “is confined to the flux
and reflux of the sea at ordinary tides.” It is
the land “between ordinary high and low-water
mark, the land over which the daily tides ebb and
flow. When, therefore, the sea, or a bay, is
named as a boundary, the line of ordinary high-
water mark is always intended where the common
law prevails.” [Citations omitted.]

An “ordinary high water mark” therefore has an

intuitive meaning when applied to tidal waters. Because of

lunar influence, ocean waves ebb and flow, thus reaching

one point on the shore at low tide and reaching a more

landward point at high tide. The latter constitutes the

high water mark on a tidal shore. The land between this

mark and the low water mark is submerged on a regular

20

basis, and so remains subject to the public trust doctrine

as “submerged land.” See, e.g., Illinois Central R Co v

Chicago, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622 (1900)

(Illinois Central II) (“But it is equally well settled

that, in the absence of any local statute or usage, a grant

of lands by the State does not pass title to submerged

lands below [the] high water mark . . . ." (Citations

omitted; emphasis added.)

Michigan’s courts have adopted the ordinary high water

mark as the landward boundary of the public trust. For

example, in an eminent domain case concerning property on a

bay of Lake Michigan, we held that public rights end at the

ordinary high water mark. Peterman v Dep’t of Natural

Resources, 446 Mich 177, 198-199; 521 NW2d 499 (1994).15

Thus, we awarded damages for destruction of the plaintiff’s

property above the ordinary high water mark that resulted

from construction by the state (which occurred undisputedly

in the water and within the public trust). Id. Similarly,

in an earlier case where the state asserted its control

under the public trust doctrine over a portion of littoral

15
This decision relied not simply on a “navigational
servitude” unique to that case, but rooted that
“navigational servitude” in the public trust doctrine. See
id. at 194 n 22, citing Collins, supra at 45-46; Venice of
America Land Co, supra; Nedtweg, supra at 16-17.

21

property, the Court also employed the high water mark as

the boundary of the public trust. Venice of America Land

Co, supra at 701-702.

Our Court has previously suggested that Michigan law

leaves some ambiguity regarding whether the high or low

water mark serves as the boundary of the public trust. See

Broedell, supra at 205-206. But the established

distinction in public trust jurisprudence between public

rights (jus publicum) and private title (jus privatum)

resolves this apparent ambiguity. Cases that seem to

suggest, at first blush, that the public trust ends at the

low water mark actually considered the boundary of the

littoral owner’s private property (jus privatum) rather

than the boundary of the public trust (jus publicum).16

16
See La Porte v Menacon, 220 Mich 684; 190 NW 655
(1922) (resolving a dispute between private landowners over
a deed term and bounding property at the low water mark);
Lake St Clair Fishing & Shooting Club, supra at 587, 594-
595 (setting the boundary of private title at the low water
mark, while simultaneously endorsing Shively and Illinois
Central I and II); Silberwood, supra at 107 (reciting the
holdings of other jurisdictions that a riparian owner’s fee
ends at the low water mark); Lincoln, supra at 384
(considering the boundaries of a grant made by the federal
government, rather than the boundary on what the government
retained). In Collins, supra at 60 (Fellows, J.,
concurring), our Court differed and used the high water
mark as the boundary to private title, but that case
involved property on an inland stream.

In People v Warner, 116 Mich 228, 239; 74 NW 705
(1898), the Court appeared to place a single boundary

22

Because the public trust doctrine preserves public rights

separate from a landowner’s fee title, the boundary of the

public trust need not equate with the boundary of a

landowner’s littoral title. Rather, a landowner’s littoral

title might extend past the boundary of the public trust.17

between the riparian owner’s title and state control,
stating that “[t]he adjoining proprietor’s fee stops [at
the high or low water mark], and there that of the State
begins.” Yet this boundary marks “the limit of private
ownership.” Id. This recalls the fact that the state
might hold proprietary title or, separate from that title,
title as trustee to preserve the waters and lands beneath
them on behalf of the public. The Court proceeded to
distinguish the state’s interest in the waters from the
interest of the public in navigation, fish, and fowl. Id.
Thus, in context, the Warner Court recognized a boundary on
a riparian title, a title that remained subject to the
public trust. But the Court did not equate that boundary
with the limit of the public trust.
17
Although in the context of an inland stream case,
Justice Fellows noted the possibility of different
boundaries on the public trust and riparian ownership in
his concurring opinion in Collins, supra at 52, quoting
Bickel v Polk, 5 Del 325, 326 (Del Super, 1851):

“The right of fishing in all public streams
where the tide ebbs and flows, is a common right,
and the owner of land adjoining tide water,
though his title runs to low water mark, has not
an exclusive right of fishing; the public have
the right to take fish below high water mark,
though upon soil belonging to the individual, and
would not be trespassers in so doing; but if they
take the fish above high water mark, or carry
them above high water mark and land them on
private property, this would be a trespass . . .
. In all navigable rivers, where the tide ebbs
and flows, the people have of common right the
privilege of fishing, and of navigation, between

23

Our case law nowhere suggests that private title

necessarily ends where public rights begin. To the

contrary, the distinction we have drawn between private

title and public rights demonstrates that the jus privatum

and the jus publicum may overlap.

Nor does this recognition of the potential for overlap

represent a novel invention. While not binding on

Michigan, other courts have similarly accommodated the same

practical challenge of fixing boundaries on shifting

waters: they acknowledged the possibility of public rights

coextensive with private title. See, e.g., State v Korrer,

127 Minn 60, 76; 148 NW 617 (1914) (Even if a riparian

owner holds title to the ordinary low water mark, his title

is absolute only to the ordinary high water mark and the

intervening shore space between high and low water mark

remains subject to the rights of the public.); see also

North Shore, Inc v Wakefield, 530 NW2d 297, 301 (ND, 1995)

(stating that neither the state nor the riparian owner held

absolute interests between high and low water mark);

Shaffer v Baylor’s Lake Ass’n, Inc, 392 Pa 493, 496; 141

A2d 583 (1958) (subjecting private title held to low water

mark to public rights up to high water mark); Flisrand v

high and low water mark; though it be over
private soil.”

24

Madson, 35 SD 457, 470-472; 152 NW 796 (1915) (same as

Korrer, supra); Bess v Humboldt Co, 3 Cal App 4th 1544,

1549; 5 Cal Rptr 2d 399 (1992) (noting that it is “well

established” that riparian title to the low water mark

remained subject to the public trust between high and low

water marks).

In the instant case, the Court of Appeals relied

extensively on Hilt to set a boundary on where defendants’

property ended and where plaintiff’s rights (as a member of

the public) began. But our concern in Hilt was the

boundary of a littoral landowner’s private title,18 rather

than the boundary of the public trust. See Hilt, supra at

206 (noting that the government conveyed title “to the

water’s edge”). Indeed, the Hilt Court endorsed the

Nedtweg Court’s discussion of the public trust and decided

the issue of the boundary on private littoral title within

the context of the public trust doctrine. See id. at 203,

224-225, 227.19 Consequently, the Court of Appeals erred by

18
Moreover, the particular issue in Hilt was the
boundary of private title on relicted/accreted land, which
is not at issue in the present case.
19
The Hilt Court concluded by stating how the public
trust doctrine affected a riparian owner’s private title:

While the upland owner, in a general way,
has full and exclusive use of the relicted land,
his enjoyment of its use, especially his freedom

25

granting defendants an exclusive right of use down to the

water’s edge, because littoral property remains subject to

the public trust and because defendants hold title

according to the terms of their deed.

Our public trust doctrine employs a term, “the

ordinary high water mark,” from the common law of the sea

and applies it to our Great Lakes. While this term has an

obvious meaning when applied to tidal waters with regularly

recurring high and low tides, its application to nontidal

waters like the Great Lakes is less apparent. See, e.g.,

Lincoln, supra at 385 (noting, amidst a discussion of the

extent of private littoral title, some imperfection in an

analogy between the Great Lakes and the oceans). In the

Great Lakes, water levels change because of precipitation,

barometric pressure, and other forces that lack the

regularity of lunar tides, which themselves exert a less

noticeable influence on the Great Lakes than on the oceans.

Applying a term from the common law of the sea, despite the

obvious difference between the oceans and the Great Lakes,

to develop and sell it, is clouded by the lack of
fee title, the necessity of resorting to equity
or to action for damages instead of ejectment to
expel a squatter, and the overhanging threat of
the State’s claim of right to occupy it for State
purposes. The State, except for the paramount
trust purposes, could make no use of the land
. . . . [Id. at 227.]

26

has led to some apparent discontinuity in the terminology

employed in our case law. Notwithstanding some prior

imprecision in its use, a term such as “ordinary high water

mark” attempts to encapsulate the fact that water levels in

the Great Lakes fluctuate. This fluctuation results in

temporary exposure of land that may then remain exposed

above where water currently lies. This land, although not

immediately and presently submerged, falls within the ambit

of the public trust because the lake has not permanently

receded from that point and may yet again exert its

influence up to that point. See Nedtweg, supra at 37

(setting apart from the public trust that land which is

permanently exposed by the “recession of water” and so

“rendered suitable for human occupation”). Thus, the

ordinary high water mark still has meaning as applied to

the Great Lakes and marks the boundary of land, even if not

instantaneously submerged, included within the public

trust. Our sister state, Wisconsin, defines the ordinary

high water mark as

the point on the bank or shore up to which the
presence and action of the water is so continuous
as to leave a distinct mark either by erosion,
destruction of terrestrial vegetation, or other
easily recognized characteristic. And where the
bank or shore at any particular place is of such
a character that is impossible or difficult to
ascertain where the point of ordinary high-water
mark is, recourse may be had to other places on

27

 the bank or shore of the same stream or lake to
determine whether a given stage of water is above
or below ordinary high-water mark. [Diana
Shooting Club v Husting, 156 Wis 261, 272; 145 NW
816 (1914), (citation omitted).]

Although Diana Shooting Club involved a river, Wisconsin

has applied this definition not only to inland waters, but

also to the Great Lakes. See R W Docks & Slips, supra at

508-510; Trudeau, supra at 102.20 This definition has long

served a state with which we share a border and that also

has an extensive Great Lakes shoreline.

Although we do not import our sister state’s public

trust doctrine where this Court has already spoken, we are

persuaded to adopt this definition to clarify a term long

used but little defined in our jurisprudence. Indeed,

Wisconsin’s definition of ordinary high water mark is not

20
While an average member of the public may not
require this degree of precision, Trudeau illustrates how a
factual dispute over the location of the ordinary high
water mark may be resolved. In that case, the parties
presented evidence via expert witnesses. Id. at 108. For
example, the state’s expert testified that he “analyzed
several aerial photographs . . . , the government survey
maps, the site’s present configuration, and stereo [three-
dimensional] photographs . . . .” Id. Numerous resources
exist to provide guidance to professionals. See, e.g.,
Simpson, River & Lake Boundaries: Surveying Water
Boundaries—A Manual (Kingman, AZ: Plat Key Publishing,
1994); Cole, Water Boundaries (New York: J Wiley & Sons,
1997). Not surprisingly, this Court requires a survey
based on proper monuments to establish an actual property
line. Hurd v Hines, 346 Mich 70, 78-79; 77 NW2d 341
(1956). The same requirement would apply for a boundary
set by one of our Great Lakes.

28

far removed from meanings previously recognized in

Michigan. See MCL 324.30101(i);21 1999 AC, R 281.301(j);

Peterman, supra at 198 n 29 (noting a statutory definition

regarding inland waters, now enacted as MCL 324.30101(i),

when considering the ordinary high water mark on Lake

Michigan). This definition also parallels that employed by

the federal government. See, e.g., 33 CFR 328.3(e).22

Thus, we clarify the meaning of “ordinary high water mark”

consistently with a definition that has served another

21
Enacted after the GLSLA employed a standard based on
International Great Lakes Datum for the Great Lakes, MCL
324.30101(i), which contains definitions previously found
in the former Inland Lakes and Streams Act, in relevant
part provides:

“Ordinary-high water mark” means the line
between upland and bottomland that persists
through successive changes in water levels, below
which the presence and action of the water is so
common or recurrent that the character of the
land is marked distinctly from the upland and is
apparent in the soil itself, the configuration of
the surface of the soil, and the vegetation.
22
33 CFR 328.3(e) provides:

The term ordinary high water mark means
that line on the shore established by the
fluctuations of water and indicated by physical
characteristics such as clear, natural line
impressed on the bank, shelving, changes in the
character of soil, destruction of terrestrial
vegetation, the presence of litter and debris,
or other appropriate means that consider the
characteristics of the surrounding areas.

29

Great Lakes state for some hundred years and is in accord

with the term’s limited development in our own state.

The concepts behind the term “ordinary high water

mark” have remained constant since the state first entered

the Union up to the present: boundaries on water are

dynamic and water levels in the Great Lakes fluctuate.23 In

light of this, the aforementioned factors will serve to

identify the ordinary high water mark, but the precise

location of the ordinary high water mark at any given site

on the shores of our Great Lakes remains a question of

fact.

III. THE PUBLIC TRUST INCLUDES WALKING WITHIN ITS BOUNDARIES

We have established thus far that the private title of

littoral landowners remains subject to the public trust

beneath the ordinary high water mark. But plaintiff, as a

23
As our Court has consistently recognized, water
boundaries necessarily defy static definition. See Hilt,
supra at 219. For example, the common law recognized
riparian rights to accretion and reliction. This meant
that riparian landowners gained private title to land
adjacent to their property that gradually became
permanently exposed through erosion or a change in water
level. See Peterman, supra at 192-193. The recognition of
these riparian rights shows that our courts have refused to
fix a line that defies natural processes. Also, the
concept of a “moveable freehold” to accommodate the effects
of accretion and reliction on the bounds of littoral title
shows our acknowledgement of the shifting nature of water
boundaries. See id., Klais v Danowski, 373 Mich 262, 275-
276; 129 NW2d 414 (1964), and Broedell, supra at 206, all
quoting Hilt, supra at 219.

30

member of the public, may walk below the ordinary high

water mark only if that practice receives the protection of

the public trust doctrine. We hold that walking along the

shore, subject to regulation (as is any exercise of public

rights in the public trust) falls within the scope of the

public trust.

To reiterate, the public trust doctrine serves to

protect resources—here the waters of the Great Lakes and

their submerged lands—shared in common by the public. See

pp 9-11 of this opinion; see also Venice of America Land

Co, supra at 702 (noting that “the State of Michigan holds

these lands in trust for the use and benefit of its

people”). As trustee, the state must preserve and protect

specific public rights below the ordinary high water mark

and may permit only those private uses that do not

interfere with these traditional notions of the public

trust. See Obrecht v Nat'l Gypsum Co, 361 Mich 399, 412-

413; 105 NW2d 143 (1960). Yet its status as trustee does

not permit the state, through any of its branches of

government, to secure to itself property rights held by

31

littoral owners. See Hilt, supra at 224 (“The state must

be honest.”).24

We first note that neither party contests that walking

falls within public rights traditionally protected under

our public trust doctrine. Rather, they dispute where, not

whether, plaintiff may walk: below the literal water’s

edge or below the ordinary high water mark. While the

parties’ agreement on this point cannot determine the scope

of public rights, this agreement does indicate the

existence of a common sense assumption: walking along the

lakeshore is inherent in the exercise of traditionally

protected public rights.

Our courts have traditionally articulated rights

protected by the public trust doctrine as fishing, hunting,

and navigation for commerce or pleasure. See Nedtweg,

supra at 16; Venice of America Land Co, supra at 702; Lake

24
For example, in Hilt, supra at 225, we noted several
riparian rights held by landowners whose property abuts
water. These riparian rights include the “[u]se of the
water for general purposes, as bathing, domestic use, etc.
[,] . . . wharf[ing] out to navigability [,] . . . [a]ccess
to navigable waters [, and] . . . . [t]he right to
accretions.” (Citations omitted.) Moreover, “[r]iparian
rights are property, for the taking or destruction of which
by the State compensation must be made, unless the use has
a real and substantial relation to a paramount trust
purpose.” Id.; see also Peterman, supra at 191. Thus, we
have long recognized the value of riparian rights, but
those rights remain ever subject to the “paramount” public
trust.

32

St Clair Fishing & Shooting Club, supra at 586; Lincoln,

supra at 388.25

In order to engage in these activities specifically

protected by the public trust doctrine, the public must

have a right of passage over land below the ordinary high

water mark. Indeed, other courts have recognized a “right

of passage” as protected with their public trust. See Town

of Orange v Resnick, 94 Conn 573, 578; 109 A 864 (1920)

(listing as public rights “fishing, boating, hunting,

bathing, taking shellfish, gathering seaweed, cutting sedge

and . . . passing and repassing”); Arnold v Mundy, 6 NJL 1,

12 (1821) (reserving to the public the use of waters for

“purposes of passing and repassing, navigation, fishing,

fowling, [and] sustenance”).

We can protect traditional public rights under our

public trust doctrine only by simultaneously safeguarding

activities inherent in the exercise of those rights. See

e.g., Attorney General, ex rel Director of Conservation v

Taggart, 306 Mich 432, 435, 443; 11 NW2d 193 (1943)

(permitting wading in a stream pursuant to the public trust

25
Indeed, we have even noted that the public might cut
ice or, in the context of inland waters, might float logs
downriver. See Lake St Clair Fishing & Shooting Club,
supra at 587; Grand Rapids Booming Co v Jarvis, 30 Mich
308, 319 (1874).

33

doctrine). Walking the lakeshore below the ordinary high

water mark is just such an activity, because gaining access

to the Great Lakes to hunt, fish, or boat required walking

to reach the water.26 Consequently, the public has always

held a right of passage in and along the lakes.

Even before our state joined the Union, the Northwest

Ordinance of 1787, art IV, protected our Great Lakes in

trust: “The navigable waters leading into the Mississippi

and St. Lawrence, and the carrying places between the same,

shall be common highways and forever free . . . .” See

Northwest Ordinance of 1787, art IV. Given that we must

protect the Great Lakes as “common highways,” see id., we

acknowledge that our public trust doctrine permits

pedestrian use–in and of itself–of our Great Lakes, up to

and including the land below the ordinary high water mark.

Yet in Hilt, supra at 226, our Court noted the rule

stated by the Wisconsin Supreme Court in Doemel v Jantz,

180 Wis 225; 193 NW 393 (1923): “[T]he public has no right

of passage over dry land between low and high-water mark

but the exclusive use is in the riparian owner . . . .”

When read in context, this quotation does not represent a

26
This does not imply a right of lateral access in the
public, i.e., a right to traverse the land of littoral
owners to reach the lands and waters held in trust. See,
e.g., Collins, supra at 49.

34

rejection of walking as impermissible within our public

trust. As correctly described by Justice Markman, the Hilt

Court cited this passage as part of its discussion

regarding the Michigan Supreme Court’s correction of an

earlier departure from the common law.27 See post at 51-53.

But rather than adopting that rule from Doemel, the Hilt

Court listed this rule, among others, to refute the notion

that the state held “substantially absolute title” in the

lakes and the lands beneath them. Hilt, supra at 224.

Instead, “the State has title in its sovereign capacity,”

id., pursuant to the public trust doctrine. Consequently,

“the right of the State to use the bed of the lake, except

for the trust purposes, is subordinate to that of the

riparian owner.” Id. at 226, citing Town of Orange, supra

at 578. In light of this exception for the public trust,

littoral owners’ rights supersede public rights in the same

property (by virtue of their ownership) only to the extent

that littoral owners’ rights do not contravene the public

trust. See id. When the Hilt Court recognized the greater

27
The Kavanaugh cases departed from the common law by
fixing the meander line as the boundary on private littoral
title and by fixing the legal status of land below that
line, regardless of subsequent physical changes. See Hilt,
supra at 213; see also Kavanaugh v Rabior, 222 Mich 68; 192
NW 623 (1923); Kavanaugh v Baird, 241 Mich 240; 217 NW 2
(1928).

35

rights of littoral property owners, it did not alter the

public trust or preclude the public from walking within it.

We must conclude with two caveats. By no means does

our public trust doctrine permit every use of the trust

lands and waters. Rather, this doctrine protects only

limited public rights, and it does not create an unlimited

public right to access private land below the ordinary high

water mark. See Ryan v Brown, 18 Mich 196, 209 (1869).

The public trust doctrine cannot serve to justify trespass

on private property. Finally, any exercise of these

traditional public rights remains subject to criminal or

civil regulation by the Legislature.

IV. RESPONSE TO OUR COLLEAGUES

Our Court unanimously agrees that defendants cannot

prevent plaintiff from walking along the shore of Lake

Huron within the area of the public trust. Despite the

separate theory that undergirds the analysis, Justices

Markman and Young agree with the majority that plaintiff

may walk along Lake Huron in the area of the public trust.

Moreover, the majority and our colleagues agree on

several other points. We agree that the public trust

doctrine, descended at common law, applies to our Great

Lakes. See Hilt, supra at 202 (“[T]his Court has

consistently held that the State has title in fee in trust

36

for the public to submerged beds of the Great Lakes within

its boundaries.”). We further agree that the public trust

doctrine requires the state as trustee to preserve public

rights in the lakes and lands submerged beneath them. See

Nedtweg, supra at 16. Finally, we agree that plaintiff

retains the same right to walk along the Great Lakes she

has always held. Post at 50-52. That our colleagues

disagree with the other members of this Court over the

particulars of how far those public rights extend ought not

overshadow our fundamental agreement: plaintiff does not

interfere with defendants’ property rights when she walks

within the public trust.

Despite the sound and fury of Justice Markman’s

concurring and dissenting opinion,28 we do not radically

depart from our precedents or destabilize property rights

by upholding and applying our common law. While our

28
For example, Justice Markman predicts the appearance
of fences along the shore. Yet to the extent that
landowners may do as they see fit on their own property,
they could always erect a fence. While we share Justice
Markman’s desire to preserve any “long coexist[ence] in
reasonable harmony,” post at 2 n 2, we find peculiar his
implication that resolving an actual instance of disharmony
between these parties or correcting the lower court’s
departure from our common law equates with this Court’s
endorsement of (or even comment on) property owners using
fences. Were we to adopt our colleagues’ approach,
littoral landowners could place fences as far down as the
water’s edge.

37

colleagues in dissent claim to maintain the status quo,

they do not do so. Rather, the majority retains and

clarifies the status quo. The trial court correctly

permitted plaintiff to walk lakeward of the ordinary high

water mark. The Court of Appeals also correctly recognized

the importance of the public trust doctrine, though we

reverse its requirement that plaintiff walk only where

water currently lies.

Yet our colleagues in dissent would repeat this error

by continuing to grant an exclusive right of possession to

littoral landowners. Indeed, they would compound this

error by granting littoral landowners all property down to

where unsubmerged land ends, which they locate at the

water’s edge,29 regardless of the terms of landowners’

29
Numerous states bound their public trust, not at an
instantaneously defined “water’s edge,” but at their high
water mark. See, e.g., Barboro v Boyle, 119 Ark 377, 385;
178 SW 378 (1915) (high water mark for a lake); Simons v
French, 25 Conn 346, 352-353 (1856) (high water mark on
tidal waters); Day v Day, 22 Md 530, 537 (1865) (high water
mark on tidally influenced rivers and streams); State v
Florida Natural Properties, Inc, 338 So 2d 13, 19 (Fla,
1976) (ordinary high water mark); Freeland v Pennsylvania R
Co, 197 Pa 529, 539; 47 A 745 (1901) (ordinary high water
mark); Allen v Allen, 19 RI 114, 115; 32 A 166 (1895) (high
water mark); State v Hardee, 259 SC 535, 541-542; 193 SE2d
497 (1972) (high water mark on tidally influenced stream).

Indeed, references in other states to “water’s edge”
often tie that term to either a high or low water mark.
See, e.g., Concord Mfg Co v Robertson, 66 NH 1, 19-21; 25 A
718 (1889); Lamprey v State, 52 Minn 181, 198; 53 NW 1139

38

deeds.30 We would not so casually set aside the countless

deeds that order property rights for the length of our

state shoreline. We would not give away to littoral

landowners the absolute title to public trust land

preserved for the people. Such a departure would represent

a grave disturbance to the property rights of littoral

landowners and of the public.

Notwithstanding Justice Markman’s characterization of

this case as “aberrational,” post at 4, 5, and 65, we have

not invented the dispute presented to us. Nor do we have

the luxury of forsaking public rights; our Court is one of

the “sworn guardians of Michigan’s duty and responsibility

as trustee of the [Great Lakes].” See Obrecht, supra at

412. For the reasons described earlier in the opinion, we

conclude that public rights may overlap with private title.

Consequently, we refuse to enshrine–for the first time in

our history–a solitary boundary between them. In this way,

(1893); Hazen v Perkins, 92 Vt 414, 419-421; 105 A 249
(1918); Mont Code, § 70-16-201; ND Cent Code, § 47-01-15.
30
In the absence of a review of the myriad deeds by
which landowners hold title to property on the Great Lakes,
Justice Markman assumes that their deeds will describe, in
some manner, the “water’s edge.” Yet, as he acknowledges,
that water’s edge may shift. This could result in water
reaching above the low water mark, even though a deed could
convey title to the low water mark. See, e.g., La Porte v
Menacon, 220 Mich 684, 687; 190 NW 655 (1922) (enforcing a
deed that extended private title to the “shore,” meaning
the “water’s edge at its lowest mark”).

39

we preserve littoral title as landowners have always held

it, and we preserve public rights always held by the state

as trustee.

In dissent, our colleagues resist acknowledging the

boundary of the public trust as the ordinary high water

mark. To reach this conclusion, Justice Markman relies on

cases concerning the boundary of private title, rather than

the boundary of the public trust. See e.g., Silberwood;

Lake St Clair Hunting & Fishing; Hilt.31 He refuses to

accept our Court’s holding–in a case involving Lake

Michigan–that “‘the limit of the public’s right is the

ordinary high water mark . . . .’” Peterman, supra at 198

(citation omitted).32 Although he criticizes the majority

31
Justice Markman makes frequent reference to colonial
cases, particularly relying on Massachusetts. But as that
state’s high court has made clear, at common law the state
owned to the mean high water line subject to public rights
in navigation and fishing. See Opinion of the Justices to
the House of Representatives, 365 Mass 681, 684-685; 313
NE2d 561 (1974). What the court described as the colonial
ordinance of 1641 to 1647 changed the common law to allow
private title to the low water mark, but even that extended
title remained subject to public rights. Id. Unlike
Massachusetts, no colonial ordinance altered the common-law
concepts in Michigan.
32
In seeming contradiction to his reading of Peterman,
Justice Markman does accept that “the ‘ordinary high water
mark’ is simply the outside edge of property that may . . .
be regulated to preserve future navigational interests at
times of high water . . . .” Post at 29. He also goes so
far as to suggest that our Court has equated the high and

40

for vagueness with regard to the definition of that term,33

we clarify the meaning of that term in a way that allows

for the fact-specific inquiry necessary to account for the

range of physical forces and variety of landforms along our

shoreline.34 We decline to draw, merely for a charade of

clarity, a universal line along the Great Lakes without any

factual development of the point in the instant case or

low water marks, see post at 55, but the Warner Court on
which he relies did not address that issue. Warner, supra
at 239 (“If the absence of tides upon the Lakes, or their
trifling effect if they can be said to exist, practically
makes high and low water mark identical for the purpose of
determining boundaries (a point we do not pass upon), the
limit of private ownership is thereby marked.”).

Additionally, our precedent stands in contradiction to
Justice Young’s intuition that the ordinary high water mark
has no application in Michigan. See, e.g., Peterman, supra
at 198-199 (calculating damages, at least in part, on the
basis of the location of the ordinary high water mark). In
contrast, the “wet sand” standard supported by Justice
Young appears for the first time in our state in this case.
We have serious reservations about adopting the view that
he joins Justice Markman in advancing. See post at 49-51.
33
In apparent tension with his claim that the majority
fails to rely on Michigan common law, Justice Markman
purports to offer an authoritative definition for ordinary
high water mark that derives from a federal case and a 1997
dictionary. See post at 41-42 & n 35.
34
We are unpersuaded that Justice Markman’s recitation
of natural forces demonstrates a difficulty in ascertaining
the ordinary high water mark, because those same forces
operate to shift the “water’s edge.” See post at 43-48.
If anything, the results of this scientific expedition show
the complexity of arriving at a water-tight definition,
rather than prove that the “water’s edge” concept escapes
similar difficulties.

41

legal argument on an issue of significance to our state’s

jurisprudence.

Nor does our colleagues’ “water’s edge” concept

provide superior clarity. Although the term might

intuitively appear to mean where the water meets land,

Justice Markman expands the term to include sand dampened

by water. See, e.g., post at 50 (“Because by definition

such sands are infused with water, the wet sands fall

within the definition of ‘submerged lands.’”). Our

colleagues’ conception of “water’s edge” neglects to

account for (1) geography where sand is absent; (2) sudden

changes in water levels such as storm surges; (3) what

degree of dampness suffices: that identified by touch,

sight, or a scientific review that could identify the

presence of a single water molecule; and (4) the source of

the water, where dampness may arise because of contact with

a liquid, such as rain, other than water from the Great

Lakes. Also, the instant-by-instant determination of a

property boundary affords little certainty to littoral

landowners. Given these serious difficulties in applying

our colleagues’ “water’s edge” rule and the absence of

support in our case law, we refuse to shift the boundary on

the public trust away from the ordinary high water mark.

42

 As trustee, the state has an obligation to protect the

public trust. The state cannot take what it already owns.

Because private littoral title remains subject to the

public trust, no taking occurs when the state protects and

retains that which it could not alienate: public rights

held pursuant to the public trust doctrine.35 Certainly,

the loss of littoral property or riparian rights could

result from an unconstitutional taking. See, e.g.,

Peterman, supra at 198, 208 (compensating the plaintiffs

for losses above the ordinary high water mark); see also

Bott v Natural Resources Comm, 415 Mich 45, 80; 327 NW2d

838 (1982); Hilt, supra at 225. Yet, here, defendants have

not lost any property rights. Rather, they retain their

property subject to the public trust, just as all property

that abuts the Great Lakes in Michigan remains subject to

the public trust, pursuant to our common law.

35
The United States Supreme Court has held that the
issue before us is a matter of state property law. See
Phillips Petroleum Co v Mississippi, 484 US 469, 475; 108 S
Ct 791; 98 L Ed 2d 877 (1988) (“[T]he individual States
have the authority to define the limits of the lands held
in public trust and to recognize private rights in such
lands as they see fit.”); see also Shively, supra at 40
(“[T]he title and rights of riparian or littoral
proprietors in the soil below high water mark of navigable
waters are governed by the local laws of the several
States, subject, of course, to the rights granted to the
United States by the Constitution.”).

43

 Justice Markman also criticizes the majority for

leaving unanswered many questions, several of which require

the adoption of the legal framework that he proposed. Yet

this case raises none of the questions that Justice Markman

poses. In general, we reserve the judgment of this Court

for “actual cases and controversies” and do not “declare

principles or rules of law that have no practical legal

effect in the case before us . . . .” Federated

Publications, Inc v City of Lansing, 467 Mich 98, 112; 649

NW2d 383 (2002). Accordingly, we decline to rule on issues

that are not before us.

V. CONCLUSION

We conclude that plaintiff, as a member of the public,

may walk the shores of the Great Lakes below the ordinary

high water mark. Under longstanding common-law principles,

defendants hold private title to their littoral property

according to the terms of their deed and subject to the

public trust. We therefore reverse the judgment of the

Court of Appeals and remand this case to the trial court

for further proceedings consistent with this opinion.

Maura D. Corrigan
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly

44

 S T A T E O F M I C H I G A N

SUPREME COURT

JOAN M. GLASS,

Plaintiff-Appellant,

v No. 126409

RICHARD A. GOECKEL AND KATHLEEN D. GOECKEL,

Defendants-Appellees.
_______________________________

YOUNG, J. (concurring in part and dissenting in part).

This case poses a deceptively simple question: where,

if anywhere, can a member of the public walk on the private

beach of one of our Great Lakes without trespassing on a

lakefront (littoral) owner’s property?

Although the question is simple, the answer, as amply

demonstrated by the more than one hundred pages of the

rival opinions filed in this case, is muddled by an

abstruse body of precedent that has been less than precise

in defining critical terms and issues. This was a well-

briefed and argued case that has resulted in a vigorous

debate within the Court. The opinions of the majority and

Justice Markman present compelling, principled, but

competing constructions of an ambiguous body of Michigan

law and that of other jurisdictions concerning Great Lakes
property rights. In the final analysis, I believe that

answer offered by Justice Markman is more firmly anchored

than that of the majority in the admittedly obscure

property law of the Great Lakes.

I concur in the majority’s determination that the Great

Lakes Submerged Lands Act (GLSLA), MCL 324.32501 et seq.,

does not create a right to walk the shores of our Great

Lakes. The Act plainly evinces the Legislature’s intent to

regulate the use of land below what the International Great

Lakes Datum identifies as the “ordinary high water mark,”

rather than to define new public rights or limit

established property rights.1

However, I join Justice Markman’s opinion with respect

to the other issues presented by this appeal. Like Justice

Markman, I believe the majority errs by recognizing a right

that we have never before recognized-the right to “walk”

the private beaches of our Great Lakes- and by granting

public access to private shore land up to an ill-defined

and utterly chimerical “ordinary high water mark” as

described in the majority opinion.2

1
See ante at 14-19.
2
See ante at 19-30. The majority concedes that:
“Applying a term [ordinary high water mark] from the common
law of the sea, despite the obvious difference between the
oceans and the Great Lakes, has lead to some apparent
discontinuity in the terminology employed in our case law.”

2

 To be sure, the majority’s opinion constitutes a

concerted and honest effort to give coherence to a very

vague body of precedent. However admirable the majority’s

effort, I remain convinced that the “ordinary high water

mark” concept on which the majority relies applies only to

tidal waters, with their regularly recurring high and low

tides.3 The only “water mark” that one can find on the

Great Lakes is the water’s edge—viz., the wet portion of

the shore over which the lake is presently ebbing and

flowing. I believe it is only in this area of wet

shoreline that the public may walk. They may do so, not

because of a recognized “right to walk” the otherwise

private beaches of our Great Lakes, for no such “right” has

ever been recognized previously to be a part of Michigan’s

public trust doctrine.4 Nor, in my view, is the public’s

Ante at 26-27. Precisely so. In effort to employ a term
that does not adequately reflect the physical realities of
our Great Lakes, the majority has borrowed definitions
variously from statutes and Wisconsin cases in a struggle
to make this tidal term fit where it does not, and in so
doing, has immeasurably expanded the scope of the public
trust.
3
See post at 31-35.
4
Until today, Michigan cases have only recognized the
right of the public to use the public trust for navigation,
hunting, fishing, and fowling. See, e.g., Hilt v Weber,
252 Mich 198, 224; 233 NW 159 (1930); Collins v Gerhardt,
237 Mich 38, 46; 211 NW 115 (1926); State v Lake St Clair

3

opportunity to walk the shoreline a product of an overlap

between private and public property titles as the majority

asserts. Rather, I believe that the littoral landowner has

no property claim to assert over submerged land—land over

which the waters of a Great Lake is presently ebbing and

flowing and which constitutes the lake bed. This area is

the outer boundary of the public trust that is owned by and

maintained for the People of Michigan.

The difficulty of the majority’s rule and the

soundness of Justice Markman’s approach is evident when one

actually tries to apply their different standards to the

shore. In the attached photograph,5 an area of darker, wet

sand forms the outer boundary of the lake bed. The water

is presently acting on this portion of the beach, as

evidenced by the fact that the land is waterlogged. Under

Justice Markman’s view and my own, it is only in this area

that the public may walk, and it may do so because the land

is presently subject to reinundation and is part of the

Fishing & Shooting Club, 127 Mich 580, 586; 87 NW 117
(1901).
5
Photograph by David Hansen, Minnesota Agricultural
Experiment Station, University of Minnesota. Reproduced
with permission.

4

lake bed. Thus, in the photograph, both the seagull and the

beach walker are within the public trust.6

Where, however, lies the majority’s “ordinary high

water mark” in this photograph? Presumably, the majority

would identify the point where sand gives way to vegetation

in the upper right-hand corner of the picture. The lake

water is nowhere near that point now and, absent a storm,

the water is unlikely to reach that point any time in the

near future. Even if the lake did rise to meet the

vegetation line due to extremely high precipitation or

6
Accordingly, I would hold that plaintiff may walk in
the zone of wet sands on Lake Huron, provided that she does
so without creating a nuisance, because the defendants have
no property interests in the bed of that lake.

5

powerful barometric forces, in what sense would the line of

vegetation be an ordinary high water mark in the sense

suggested by the majority’s definition?

Moreover, the majority notes that its ordinary high

water mark excludes all dry land except that “temporar[ily]

expos[ed]”7 by the water. The pictorial beach illustration

shows how unsatisfactory is the majority’s formulation of

its definition of “ordinary high water mark” as applied to

our Great Lakes: What exactly does the majority mean by

“temporary” exposure? If it simply means land from which

the lake waters have “not permanently receded,”8 at what

point may anyone determine that the recession of the water

is “permanent”? If the portion of the shore between the

lake bed (including the wet sand area over which the lake

is presently lapping) and the vegetation line has been dry

for a season or more, can it truly be argued that this area

of the beach is “temporarily” exposed? These are

apparently pure questions of fact for the majority,9 but I

believe they are critical threshold questions that must be

posed and answered when giving the term “ordinary high

7
Ante at 27.
8
Ante at 27.
9
Ante at 30.

6

water mark” a workable legal definition as applied to the

Great Lakes.

In essence, then, I believe that the majority

concludes that the dry sandy area in the attached picture

is entirely below the “ordinary high water mark” (thus

within the protected, state-owned public trust) because

this area looks like it may have been subject to the

influence of water at some unidentifiable point in the past

and because it may again, at some unidentifiable point in

the future, be covered by the lake. If nothing else, this

is an impractical proposition because it requires the

uncritical application to our nontidal Great Lakes of a

term–the “ordinary high water mark”-that is applicable only

to tidal waters.

I believe the analysis offered by Justice Markman is

more persuasive than that offered by the majority. In my

view, not only has Justice Markman analyzed the applicable

common law decisions with greater accuracy but, in contrast

with the majority opinion, he has articulated a rule that

is both faithful to the physical realities of our Great

Lakes and consonant with the available confused precedent

that we have all valiantly struggled to decipher.10

10
If we must transform the term “ordinary high water
mark” in order to use it, I believe that we ought at least

7

 For these reasons, I concur in part II(A) of the

majority opinion but join parts I-III and V of Justice

Markman’s opinion in respectfully dissenting from the

remainder of the majority opinion.

Robert P. Young, Jr.

define and apply it in a way that reflects the physical
nature of our non-tidal Great Lakes and that does least
damage to heretofore stable lakefront property rights in
the State.

8

 S T A T E O F M I C H I G A N

SUPREME COURT

JOAN M. GLASS,

Plaintiff-Appellant,

v No. 126409

RICHARD A. GOECKEL AND KATHLEEN D. GOECKEL,

Defendants-Appellees.

_______________________________

MARKMAN, J. (concurring in part and dissenting).

Because I would not alter the longstanding status quo

in our state concerning the competing rights of the public

and lakefront property owners, I respectfully dissent. In

concluding that the “public trust doctrine” permits members

of the public to use unsubmerged lakefront property up to

the “ordinary high water mark,” the majority creates new

legal rules in Michigan out of whole cloth by adopting

Wisconsin law in piecemeal fashion and discarding Michigan

rules that have defined the relationship between the public

and lakefront property owners for virtually the entirety of

our state’s history.1 Equally troubling, the majority

1
Although, quite remarkably, the majority purports
that it “retains and clarifies the status quo,” ante at 38,
there is not a scintilla of support for the proposition
replaces clear and well-understood rules-- rules that have

produced reasonable harmony over the decades in Michigan--

with obscure rules. One of the few things that is clear

about the majority’s opinion is that it will lead

inevitably to more litigation-- more litigation in an area

of the law that, mercifully, has been largely free from

such litigation for the past century and a half in our

state. In the place of the reasonable harmony that has

developed between the public and littoral property owners,

there will be litigation. In the place of open beaches,

there almost certainly will be a proliferation of fences

erected by property owners determined to protect their now

uncertain rights.2 In the place of rules that have both

that Wisconsin law has ever been the law of Michigan, not a
single Michigan case referencing the majority’s new test,
and not a paragraph of argument in any of the briefs of
plaintiffs, defendants, or amici identifying Wisconsin law
as the law of Michigan.
2
The majority fails to recognize why its new rules are
a prescription for fences. It is, of course, true that a
lakefront property owner “could always erect a fence,” as
the majority observes. Ante at 37 n 28. However, fences
have not heretofore generally been thought necessary.
Under current law, which I would not alter, members of the
public and lakefront property owners have long coexisted in
reasonable harmony. It is the majority’s actions today in
departing from our precedents and creating new and vague
law that will almost certainly transform this relationship
and cause at least some property owners to believe that
they must erect fences in order to protect boundaries that
now have been called into question and that apparently will

2

upheld the property rights of lakefront landowners and

provided an environment in which reasonable public use of

lakefront property, including beach-walking, could

routinely take place, the majority introduces new rules

that will create tensions between the public and lakefront

property owners. In the place of a boundary that can be

determined by simple observation, the majority’s new rules

would require property owners and the public to bring

“aerial photographs,” a “government survey map[]” and

“stereo [three-dimensional] photographs,” ante at 28 n 20,

in order to determine where their rights begin and end. In

the place of rules in which property rights have been

clearly defined by law, the majority expands the “public

trust” in an uncertain fashion, in accordance with rules

and regulations to be issued at some future time by the

administrative agencies of state government. In the place

of the clear rule of law in which property rights have been

respected in a consistent fashion for more than a century

and a half, there will be political dispute and

negotiation.

This is the first such dispute to come before this

Court in our history. Rather than recognizing the harmony

be subject to definition by the Department of Natural
Resources.

3

that has been produced by the present rules in the course

of the millions of interactions that occur each year

between the public and property owners along the Great

Lakes, the majority instead creates new rules on the basis

of an isolated and aberrational dispute between the present

parties.

The majority departs from the longstanding status quo

in our state, despite the following: (1) there is no realm

of the law in which there is a greater need to maintain

stability and continuity than with regard to property

rights; (2) the parties in this case have all asserted that

they favor a maintenance of the status quo;3 (3) there is no

3
Plaintiff argues that use of the term “‘water’s edge’
[in Hilt v Weber, 252 Mich 198; 233 NW 159 (1930)] is
consistent with the nomenclature of many other state and
federal cases using ‘water’s edge’ to mean ‘high water
mark.’” Plaintiff's brief at 24. See, also, amicus brief
of the Tip of the Mitt Watershed Council at 18; amicus
brief of the Michigan Senate Democratic Caucus at 2; amicus
brief of the Michigan Land Use Institute at 10; and amici
brief of the Michigan Departments of Environmental Quality
and Natural Resources at 11. Defendants argue that the
status quo gives the littoral owner “exclusive use of the
beachfront to the water’s edge as it exists from time to
time.” Defendants’ brief at 13. See, also, amici brief of
the Michigan Chamber of Commerce, National Federation of
Independent Business Legal Foundation, Michigan Bankers
Association, and Michigan Hotel, Motel & Resort Association
at 11 (“The relevant Michigan authorities thus compel the
conclusion that the public trust applies only to submerged
lands when they are actually submerged”); amici brief of
the Save our Shoreline and the Great Lakes Coalition, Inc
at 9 (“[t]hat the water’s edge was the boundary between

4

evidence that the status quo has not reasonably balanced

the interests of property owners and the public in Michigan

for more than a century and a half; and (4) there is no

evidence that the present dispute is anything other than an

isolated and aberrational dispute, not one upon which to

predicate the reversal of a century-and-a-half-old

conception of private property rights.

This Court has recognized the importance of

maintaining the security of private property by

“declar[ing] that stare decisis is to be strictly observed

where past decisions establish ‘rules of property’ that

induce extensive reliance.” Bott v Natural Resources Comm,

415 Mich 45, 77-78; 327 NW2d 838 (1982). In Bott, we noted

that “[j]udicial ‘rules of property’ create value, and the

passage of time induces a belief in their stability that

generates commitments of human energy and capital.” Id. at

78. Therefore, such rules should be closely respected and

overturned only for “the very best of reasons.” See, e.g.,

Dolby v State Hwy Comm'r, 283 Mich 609, 615; 278 NW 694

public and [littoral] ownership was first suggested in [La
Plaisance]”); amici brief of the legislators at 4 (arguing
that numerous Michigan cases establish that littoral owners
“have title to their property to the water’s edge, free of
any public trust interest in the submerged lands of the
Great Lakes”); and amicus brief of the Defenders of
Property Rights at 12 (noting that in the past sixty-four
years, this Court has rejected any attempt to expand public
rights to areas landward of the water’s edge).

5

(1938); Lewis v Sheldon, 103 Mich 102, 103; 61 NW 269

(1894).

The public’s right to use property abutting the Great

Lakes under the public trust doctrine has traditionally

been limited to “submerged lands,” i.e., those lands

covered by the Great Lakes, including their wet sands. The

“water’s edge” is that point at which wet sands give way to

dry sands, thus marking the limit of the public’s rights

under the public trust doctrine. This has been the rule in

our state since this Court’s decision in Hilt v Weber, 252

Mich 198; 233 NW 159 (1930), a case that for seventy-five

years has defined the limits of the public’s rights of use

of littoral property.4 Indeed, except for the seven-year

period immediately preceding Hilt, this water’s edge

principle is consistent with Michigan case law dating back

over 160 years and probably even earlier. Lakefront

4
As noted by the majority, “[o]ur case law has not
always precisely distinguished” between the terms
“littoral” and “riparian.” Ante at 1 n 1. The former
applies to oceans, seas, the Great Lakes, and their coasts,
while the latter applies to rivers and streams. Black’s
Law Dictionary (7th ed). Unfortunately, the misuse of
these terms appears to at times have led this Court to
misapply aspects of the public trust doctrine as they
relate to rivers and streams as if those aspects also
related to the Great Lakes. See, e.g., Peterman v Dep’t of
Natural Resources, 446 Mich 177, 195; 521 NW2d 499 (1994).
I will use the term “littoral” when discussing property
abutting the Great Lakes.

6

property owners, including businesses,5 have invested in

reliance on present rules concerning the relationship

between the public and lakefront property owners. This

reliance on longstanding rules should have given the

majority considerable pause before it altered the status

quo and redefined the public trust doctrine.

This is not the first time this Court has upset

settled rules of property on the Great Lakes, but the

lessons of the first time do not seem to have been well-

learned by the majority. Before the 1920s, property owners

believed that their title extended to the water’s edge.

Steinberg, God’s terminus: Boundaries, nature, and property

on the Michigan shore, 37 Am J Legal Hist 65, 72 (1993).

However, in the Kavanaugh cases,6 this Court abruptly

5
In particular, the consequences of the majority’s new
rules are uncertain for those in the tourism industry in
Michigan who have invested in reliance on the rule set
forth in Hilt. The majority, in using the “ordinary high
water mark” as “defined” under Wisconsin law, has opened to
public use unsubmerged lands up to a wholly unspecified
point landward of the water and this change would seem to
have implications for the ability of at least some Great
Lakes tourists to enjoy the type of tranquil retreat
offered by private beaches within Michigan. See,
generally, the amici brief of the Michigan Chamber of
Commerce, National Federation of Independent Business Legal
Foundation, Michigan Bankers Association, and Michigan
Hotel, Motel & Resort Association.
6
Kavanaugh v Rabior, 222 Mich 68; 192 NW 623 (1923),
and Kavanaugh v Baird, 241 Mich 240; 217 NW 2 (1928).

7

overruled eighty years of then-existing case law and held

that a littoral owner’s title extended only to the “meander

line,” a survey line used by the federal government to

determine the amount of property available for sale in the

Michigan Territory.7 While this Court recognized at the

time that this decision was “against the overwhelming

weight of authority,”8 unlike the majority’s decision today,

it was at least arguably grounded in dictum from a prior

Michigan decision.9 Nevertheless, by deviating from an

established rule of property rights in favor of

establishing a boundary at an imaginary line that property

owners could not easily identify, the Kavanaugh cases threw

Michigan’s lakeshores into disarray. For example, renters

of property between the meander line and the water’s edge

withheld their rent and in fact were advised to do so by

the director of the Department of Conservation. Id. at 77-

78. Further, littoral owners found that third parties were

building on property between the meander line and the

7
Hilt, supra at 204-205.
8
Baird, supra at 252.
9
In Ainsworth v Munoskong Hunting & Fishing Club, 159
Mich 61, 64; 123 NW 802 (1909), we stated that “[littoral]
owners along the Great Lakes own only to the meander line
. . . .” Later, however, in Hilt, supra at 207, we noted
that in Ainsworth, the meander line and water’s edge were
the same on the bay in question.

8

water’s edge, thus effectively blocking their access to the

lake. Other littoral owners were forced to hire surveyors

in order to determine with any certainty what property they

actually owned. The chaos caused by the departure from the

traditional rule in the Kavanaugh cases was so dramatic

that just seven years later this Court corrected its error

and reestablished the rules of property as they had existed

on the Great Lakes for at least the prior eighty years.

Hilt, supra at 227.

The majority today revamps the public trust doctrine

on the basis of Wisconsin law-- or at least on the portions

of it that the majority finds to their liking-- and, in so

doing, announces new rules of law regarding lands subject

to the public trust doctrine. Because I believe that the

public’s rights under the doctrine have always been limited

to the use of submerged lands, which includes the wet

sands, I do not believe that the Court of Appeals erred in

holding that the public may not walk on unsubmerged lands.

However, I do believe the Court of Appeals erred in holding

that the state’s title begins at the “ordinary high water

mark.” Therefore, I would affirm in part and reverse in

part the decision of the Court of Appeals and remand to the

trial court to apply the principles set forth in this

opinion.

9

 I. MISUNDERSTANDING THE “ORDINARY HIGH WATER MARK”

The majority concludes that the “ordinary high water

mark” is the landward boundary of the public trust

doctrine.10 While the majority does not necessarily

disagree that the water’s edge serves as the boundary of

the littoral owner’s title, it would expand the public’s

legal right to use property up to the utterly indiscernible

“‘point on the bank or shore up to which the presence and

action of the water is so continuous as to leave a distinct

mark either by erosion, destruction of terrestrial

vegetation, or other easily recognized characteristic.’”

Ante at 27 (citation omitted). The majority further adds

that this newly described “ordinary high water mark,” one

never before seen in Michigan, includes unsubmerged lands

that are the product of “fluctuation” in the level of the

lake that “results in temporary exposure of land that may

10
The majority also creates a new rhetorical
formulation for the test determining whether a use is
permitted by the public trust doctrine, although I fail to
see any significant distinction between a use that is
“inherent in the exercise of traditionally protected public
rights,” ante at 32, and a use that bears “a real and
substantial relation to a paramount trust purpose.” Hilt,
supra at 225. I agree with the majority that beach-walking
is a permissible public trust use. Walking in submerged
lands is an activity that bears a “necessary and
substantial relation” to other water-borne recreational
activities protected by the doctrine, e.g., boating,
swimming, and fishing.

10

then remain exposed above where water currently lies.” Id.

I disagree. The majority replaces a workable and easily

identifiable boundary with one whose exact location is

anyone’s guess and it has done so on the basis of the

Wisconsin public trust doctrine, or at least that part of

Wisconsin’s doctrine that supports the majority’s new

rule.11 Instead, I believe that the public’s entitlement to

use property under the public trust doctrine of Michigan is

limited to submerged lands, i.e., the Great Lakes and their

wet sands.

The majority’s creation of this new rule is rooted in

its misunderstanding of the importance of the “ordinary

high water mark” for the purpose of defining the boundary

of the public trust on the nontidal Great Lakes. The

public trust doctrine in the United States is derived from

the English common law, which extended to tidal land below

11
Curiously, the majority adopts Wisconsin law in this
area, despite the fact that Wisconsin’s 820 miles of Great
Lakes shoreline is dwarfed by the 3,288 miles of shoreline
in this state. (accessed June 24, 2005).
Nonetheless, the critical point is not whether it is the
law of a state with a longer or shorter shoreline than
Michigan's that has been adopted by the majority. Rather,
it is why any new law has been adopted when current law has
proven workable for many decades of our state-- clearly
setting forth the rights of the public and the property
owner, minimizing litigation, and simultaneously protecting
private property rights while allowing reasonable public
use of the Great Lakes, including beach-walking.

11

the ordinary high water mark. Borax Consolidated, Ltd v

Los Angeles, 296 US 10, 23; 56 S Ct 23; 80 L Ed 9 (1935).

The rights protected by the English common law included use

of tidal lands up to the ordinary high water mark for

“navigation and commerce . . . and for the purposes of

fishing . . . .” Shively v Bowlby, 152 US 1, 11; 14 S Ct

548; 38 L Ed 331 (1894).

Following the American Revolution, the title held for

the public trust by the King passed to the states, subject

only to those rights surrendered by the states to the

federal government. Id. at 14-15. While each state is

required to protect the uses permitted by the public trust

doctrine, Illinois Central R Co v Illinois, 146 US 387,

453; 13 S Ct 110; 36 L Ed 1018 (1892) (Illinois Central I),

the scope of property subject to that trust is governed by

“the local laws of the several States . . . .”12 Shively,

12
The majority also notes that in Illinois Central R
Co v Chicago, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622
(1900) (Illinois Central II), the United States Supreme
Court found that “a grant of lands by the State does not
pass title to submerged lands below high-water mark
. . . .” However, as stated in Shively, the scope of lands
subject to the public trust is determined by state law. In
determining the scope of the trust doctrine in Illinois
Central II, the United States Supreme Court looked to “the
law of the State of Illinois, as laid down by the Supreme
Court . . . .” Id. at 659. In finding that Illinois’s
title went to the high water mark, the point emphasized by
the majority, the United States Supreme Court cited

12

supra at 40. Thus, it cannot be said that the American

public trust doctrine uniformly extends to the “ordinary

high water mark.” Id. While a majority of the original

thirteen colonies followed the English common-law rule,

Shively noted that four of the original colonies held that

the littoral owner holds title to the “low water mark,”

subject only to the public’s right to use the water for

navigation and fishing when it is above that point. Id. at

18-25.13 For example, in Commonwealth v Alger, 61 Mass 53,

70 (1851), the Supreme Court of Massachusetts held, under

Illinois case law directly. Id. at 660, citing Seaman v
Smith, 24 Ill 521 (1860), People ex rel Attorney General v
Kirk, 162 Ill 138, 146; 45 NE 830 (1896), and Revell v
People, 177 Ill 468, 479; 52 NE 1052 (1898). Because
Illinois Central II applied Illinois law, its holding
regarding the scope of lands subject to the public trust
doctrine is not binding on this Court. Rather, the common
law as developed in this state determines the scope of
lands subject to the doctrine.
13
Those states are: Massachusetts, Shively, supra at
18-19 (littoral owner takes title in fee to the low water
mark “subject to the public rights of navigation and
fishery”); New Hampshire, id. at 20 (“a right in the shore
has been recognized to belong to the owner of the adjoining
upland”); Pennsylvania, id. at 23 (“the owner of lands
bounded by navigable water has the title in the soil
between high and low water mark, subject to the public
right of navigation”); and Virginia, id. at 24-25 (“the
owner of land bounded by tide waters has the title to
ordinary low water mark, and the right to build wharves,
provided they do not obstruct navigation”).

13

the “local laws” of that state,14 a littoral owner’s title

extends to the low water mark. However, the littoral

owner’s title is limited because “whilst [lands above the

low water mark] are covered with the sea, all other persons

have the right to use them for the ordinary purposes of

navigation.” Id. at 74-75. In other words, the public’s

rights under the public trust doctrine are limited to the

use of property that is currently submerged. Thus, the

public trust doctrine as defined in the “low water mark”

colonies restricts the public’s right of use to either land

below the low water mark or to such land as is currently

covered by the waters of the ocean.15

Likewise, the “local laws” of Michigan did not adopt

the English definition of public trust lands, but rather

restricted the public’s rights under the public trust

doctrine to the use of submerged lands. In La Plaisance

14
As noted by the majority, ante at 40 n 31,
Massachusetts adopted the low water mark by colonial
ordinance. Alger, supra at 66. Thus, while obviously not
directly applicable to the public trust doctrine in
Michigan, Alger does make clear that the “ordinary high
water mark” has not been as universally accepted as the
majority apparently believes.
15
In light of the majority’s reliance on Wisconsin
law, it is interesting to note that the Wisconsin Supreme
Court similarly held that the public’s right to use
submerged lands up to the high water mark is only
applicable when the waters actually extend to such mark.
Doemel v Jantz, 180 Wis 225, 236; 193 NW 393 (1923).

14

Bay Harbor Co v Monroe City Council, Walker Chancery Rep

155 (1843), the issue of public ownership of the Great

Lakes was addressed for the first time by a Michigan court.

In La Plaisance, the Court of Chancery addressed the

state’s right to improve navigation in Lake Erie. The

Legislature had authorized the city of Monroe to build a

canal connecting the River Raisin to the lake. The harbor

company brought suit to enjoin the project, claiming that

the canal would divert so much water from the river that

its downriver warehouses would be rendered inaccessible by

boat. However, the court held that the harbor company did

not have a right to the flow of water in the river in its

natural bed because “[t]he public owns the bed of this

class of rivers, and is not limited in its right to an

easement, or right of way only.” Id. at 168. The court

also noted that “with regard to our large lakes, or such

parts of them as lie within the limits of the state[,]

[t]he proprietor of the adjacent shore has no property

whatever in the land covered by the water of the lake.”

Id. (emphasis added). Moreover, it should be noted that

before La Plaisance, and before statehood, Michigan was

part of the Northwest Territory, which was ceded to the

United States by Virginia in 1784. Under Virginia law, a

15

littoral owner held title to soil in tidewaters to the low

water mark. Shively, supra at 24-25.

The understanding that the public’s interest under the

public trust doctrine is limited to the submerged lands of

the Great Lakes was also expressed by Justice Champlin in

his concurring opinion in Lincoln v Davis, 53 Mich 375; 19

NW 103 (1884). In Lincoln, a fisherman had placed stakes

in Thunder Bay, off an island, in order to set some fishing

nets. The island’s owner removed the stakes, claiming that

he had the exclusive right to fish in the waters off his

island. The Lincoln majority, while not discussing the

boundary between littoral property and public trust

property, held that the owner had no right to interfere

with the fisherman’s stakes. Justice Champlin noted that

“when [Michigan] was admitted into the Union this political

jurisdiction devolved upon the State, and the title to the

soil under the navigable waters of the Great Lakes became

vested in the State as sovereign to the same extent and for

the same reasons that the title of the bed of the sea was

vested in the king.” Id. at 384 (emphasis added).

However, the state’s title only extends to the “low-water

mark.” Id. at 384-385 (emphasis added). In fact,

according to Justice Champlin, “The paramount rights of the

public to be preserved are those of navigation and fishing,

16

and this is best accomplished by limiting the grants of

lands bordering on the Great Lakes to [the] low-water

mark.” Id. at 385-386.

The United States Supreme Court defined the scope of

the public trust doctrine as applied to the submerged lands

of the Great Lakes in Illinois Central I, supra at 437. In

Illinois Central I, the Illinois legislature had granted

the railroad title to one thousand acres of submerged land

on Lake Michigan. Four years later, the Illinois

legislature repealed this act and sought to quiet title to

submerged lands. The Supreme Court held that “the State

holds the title to the lands under the navigable waters of

Lake Michigan . . . and that title necessarily carries with

it control over the waters above them whenever the lands

are subjected to use.” Id. at 452 (emphasis added).

Because the state’s public-trust title is a function of its

sovereignty, the lands covered by the doctrine cannot be

alienated, except when such alienation promotes the public

use of them and the public use of the lands and waters

remaining is not harmed. Id. at 452-453.

Just four years later, in People v Silberwood, 110

Mich 103, 107; 67 NW 1087 (1896), this Court seized upon

the Illinois Central I explanation of the public trust

doctrine to support its holding that the boundary between

17

public trust lands and littoral lands is the low water

mark. In Silberwood, the defendant was convicted of

cutting submarine vegetation on Lake Erie. The defendant

claimed that the owners of land lying adjacent to Lake

Erie, including his employer who ordered removal of the

vegetation, owned the land to the center of that Great

Lake, subject to the rights of navigation. The Court,

quoting La Plaisance, held that a littoral owner does not

have any title in land covered by the Great Lakes. Id. at

106. The Court then noted that the Illinois Central I

decision

is in harmony with the doctrine laid down in the
early case of La Plaisance Bay Harbor Co. v.
Council of City of Monroe, which I do not think
has ever been overruled in this State so far as
it affects the rights of shore owners on the
borders of the Great Lakes. This doctrine, too,
is in harmony with the decisions in all of the
States bordering on these great seas. [Id. at
108-109.]

Further, the Court noted that decisions of other Great

Lakes states were in line with both La Plaisance and

Illinois Central I:

The decisions in New York (Champlain, etc.,
R. Co. v. Valentine, 19 Barb. 484 [NY Sup
(1853)]), in Pennsylvania (Fulmer v. Williams,
122 Pa. St. 191 [15 A 726 (1888)]), and in Ohio
(Sloan v. Biemiller, 34 Ohio St. 492 [1878]), all
hold that the fee of the [littoral] owner ceases
at the low-water mark. [Id. at 107.]

18

 This Court reaffirmed the principle that the public

trust doctrine applies only to submerged lands in People v

Warner, 116 Mich 228; 74 NW 705 (1898). At issue in Warner

was ownership of a marshy island that was previously

submerged under Saginaw Bay. The defendant claimed

ownership of the marshy island as an accretion to his

adjacent island. In placing the boundary at the water’s

edge, the Court stated:

The depth of water upon submerged land is
not important in determining the ownership. If
the absence of tides upon the Lakes, or their
trifling effect if they can be said to exist,
practically makes high and low water mark
identical for the purpose of determining
boundaries (a point we do not pass upon), the
limit of private ownership is thereby marked. The
adjoining proprietor’s fee stops there, and there
that of the State begins, whether the water be
deep or shallow, and although it be grown up to
aquatic plants, and although it be unfit for
navigation. The right of navigation is not the
only interest that the public, as
contradistinguished from the State, has in these
waters. It has also the right to pursue and take
fish and wild fowl, which abound in such places;
and the act cited has attempted to extend this
right over the lands belonging to the State
adjoining that portion of the water known to be
adapted to their sustenance and increase. [Id.
[16]
at 239 (emphasis added).]

16
The majority claims that when read “in context,”
Warner does not recognize “a single boundary between the
riparian owner’s title and state control . . . .” Ante at
22 n 16. Specifically, the “context” relied upon by the
majority is Warner’s distinction between the state’s and
the public’s interests in submerged lands. However, there
is no context under which Warner can reasonably be read to

19

The Court found that a connection between the marshy island

and the defendant’s island, which existed during times of

low water, raised an issue of material fact. If the

connection was evidence that land washed up against the

defendant’s island and that eventually caused the marshy

island to rise from the water, then the defendant held

title to such land by accretion. However, if the island

arose from the water first and only then began to extend

towards the defendant’s island, then title belonged to the

state. In any case, the Court held that summary

disposition was inappropriate and remanded the case for a

new trial.

support the majority’s new rule of law. The passage cited
by the majority comes directly after this Court’s holding
that the state holds title to all submerged lands,
regardless of navigability. In justifying the state’s
title to lands “unfit for navigation,” Warner notes that
the public has interests in those submerged lands above and
beyond a navigational interest, i.e., “the right to pursue
and take fish and wild fowl . . . .” Further, in an
opinion replete with novel concepts of law, perhaps the
most creative statement by the majority is that somehow the
phrase “[t]he adjoining proprietor’s fee stops there [i.e.,
where the water is], and there that of the State begins”
does not represent a single boundary. If the state’s title
begins at the point where the adjoining proprietor’s title
ends, there can only be one boundary and, therefore, there
cannot be an overlapping of titles as suggested by the
majority. Accordingly, and despite the majority’s claims
to the contrary, this Court has explicitly “enshrined” a
solitary boundary between littoral lands and public trust
lands for at least 107 years.

20

 One of the most thorough opinions addressing the

public trust doctrine was Justice Hooker’s concurring

opinion in State v Lake St Clair Fishing & Shooting Club,

127 Mich 580; 87 NW 117 (1901).17 Justice Hooker began his

analysis by noting that the “title that Michigan took when

it was admitted to the Union in 1836 is not limited to

water sufficiently deep to float craft, but extends to the

point where it joins the ground of the [littoral] owner,

‘whether the water be deep or shallow, and although it be

grown up to aquatic plants and unfit for navigation.’” Id.

at 586, quoting Warner, supra at 239. Likewise, the title

of the abutting littoral owner extends to the shoreline.

Fishing & Shooting Club, supra at 587. Thus, “when the

water in the lakes stands at low-water mark, . . . the

title [is] in the State, and all land between low-water

mark and the meander line belongs to the abutting

proprietor . . . .” Id. at 590 (emphasis added).

The common-law limitation of the scope of the public

trust doctrine was reaffirmed by this Court in Hilt. In

overruling the short-lived Kavanaugh cases, we held that

“the purchaser from the government of public land on the

17
Justice Hooker’s analysis of the public trust
doctrine was subsequently cited with approval by the
unanimous opinion of this Court in State v Venice of
America Land Co, 160 Mich 680, 702; 125 NW 770 (1910).

21

Great Lakes took title to the water’s edge.” Hilt, supra

at 206. We also noted that the waters of our Great Lakes

commonly change the landscape surrounding them, by erosion

or deposits made by the water, in a gradual and

imperceptible manner. Id. at 219. In order to account for

this constant change, the title of a littoral owner

“follows the shore line under what has been graphically

called ‘a movable freehold.’” Id. (citation omitted). The

title to land above the water’s edge is “‘independent of

the law governing the title in the soil covered by the

water.’” Id., quoting Shively, supra at 35.18

To summarize, under the common law as it has developed

in Michigan, when the water is at a low point, the state

holds title to the submerged land, including the wet sands,

while title to unsubmerged land is in the littoral owner.

Warner, supra; Fishing & Shooting Club, supra. As the

water level rises, the public gains the right to use the

entire surface of the lake up to the water’s edge-- the

point at which wet sands give way to dry sands-- for public

18
Hilt also noted that to hold otherwise would
effectively cut the littoral owner off from the water,
thereby destroying the very characteristic that defines
property as "littoral"-- its contact with the water. Hilt,
supra at 219.

22

trust purposes. Hilt, supra; Warner, supra. Likewise, the

littoral owner’s title follows the rise and fall of the

waters.19 Id. Accordingly, the boundary of the littoral

owner’s title is the most landward of either the “low water

mark” or the current location of the water itself.20 The

19
The majority misstates my position as “granting
littoral landowners all property down to where unsubmerged
land ends, which [I] locate[] at the water’s edge,
regardless of the terms of landowners’ deeds.” Ante at 38-
39. There is no basis for this statement. The
characteristic that defines property as “littoral” is its
contact with the water. Hilt, supra at 219. In other
words, a property owner whose deed does not extend to the
water’s edge is not a littoral owner and, therefore, would
have no more rights in unsubmerged property than any other
member of the public. Obviously, a property owner is only
a littoral owner if the deed gives title to the water’s
edge, however the “water’s edge” may be described. For
example, in the instant case, defendants’ deed states that
the “meander line of Lake Huron” forms part of the boundary
of their property. As we held in Farabaugh v Rhode, 305
Mich 234, 242; 9 NW2d 562 (1943), “the meander line of Lake
Michigan is a line of description and not one of boundary
and that one owning to such meander line owns to the
water’s edge subject to accretion and reliction unless a
contrary intention is expressed in the conveyance.” There
is no evidence of a contrary intention in this case and,
therefore, defendants hold title to the water’s edge.
20
The majority notes that this Court has identified
“some ambiguity regarding whether the high or low water
mark serves as the boundary of the public trust.” Ante at
22, citing People, ex rel Director of Conservation v
Broedell, 365 Mich 201, 205-206; 112 NW2d 517 (1961).
Broedell cited two cases with “language seemingly favorable
to the high-water-mark theory.” Id. at 206. One of those
cases, Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926),
defined the public trust doctrine as it applies to rivers.
The other case, Venice of America Land Co, supra at 702,
discussed the location of a certain island at the time of

23

state’s public trust title, then, “begins [where the water

is], whether the water be deep or shallow . . . .” Warner,

supra at 239.21

In rejecting this understanding, the majority’s

opinion virtually ignores 162 years of case law, and

instead simply announces that “Michigan’s courts have

adopted the ordinary high water mark as the landward

boundary of the public trust” doctrine. Ante at 21. Thus,

according to the majority, unsubmerged land up to the “high

water mark” remains subject to the trust. To support its

assertion, the majority cites with approval this Court’s

holding in Peterman v Dep’t of Natural Resources, 446 Mich

177, 198-199; 521 NW2d 499 (1994). In doing so, the

statehood. If the island was completely submerged at
statehood and only afterwards arose out of Lake St. Clair,
then the island belonged to the state. See, e.g., Warner,
supra. The Court noted that, during periods of high water,
the island at issue was completely submerged. According to
the Court, Lake St. Clair experienced one such period of
high water in 1837-1838. Therefore, because the island was
submerged land at the time of statehood and only arose out
of the water afterwards, title to such property was in the
state. Id. Further, Venice of America Land Co expressly
adopted Justice Hooker’s concurring opinion from Fishing &
Shooting Club. As argued earlier, Justice Hooker found
that the boundary between a littoral owner’s property and
property held by the state in trust is the low water mark,
at least at times of low water.
21
The majority has interpreted the “water’s edge”
principle as creating a “universal line along the Great
Lakes . . . .” Ante at 41. However, the water’s edge is
not a “universal line,” but rather a dynamic boundary that
moves as the waters of the Great Lakes move.

24

majority fails to acknowledge that Peterman did not address

the public’s right to use property under the public trust

doctrine at all,22 but rather addressed the state’s right to

improve navigation under the navigational servitude.23 We

began our analysis in Peterman by affirming that the

“‘title of the [littoral] owner follows the shore line

under what has been graphically called "a moveable

freehold.”’” Id. at 192, quoting Hilt, supra at 219.

However, we also found that such title is not absolute.

Rather, the state retains a navigational servitude on

unsubmerged property landward of the water’s edge that may

again become submerged during periods of high water.24 In

order to accommodate both the rights of the littoral owner

22
Even if Peterman did apply in the public trust
context-- which it does not-- an examination of its holding
indicates a definition of the public trust doctrine far
more in line with “low water mark” cases such as Alger than
with the “high water mark” cases cited by the majority.
23
The majority argues that this decision “relied not
simply on a ‘navigational servitude’ unique to that case
but rooted that ‘navigational servitude’ in the public
trust doctrine.” Ante at 21 n 15. However, Peterman
specifically states that “plaintiffs' [littoral] rights are
subject to the navigational servitude retained by the State
of Michigan.” Peterman, supra at 193-194. Peterman does
not state that littoral rights are subordinate to the right
to fish and hunt or the right to walk. Rather, the Court
limited its holding to the state’s right to improve
navigation.
24
The federal government also retains a navigational
servitude on the Great Lakes and the lands beneath them.

25

and the potential use of unsubmerged land for navigation,

we determined that the littoral owner’s title is “a limited

title . . . that is subject to the power of the state to

improve navigation.” Peterman, supra at 195 (emphasis

added). That is, the state has the right to regulate this

unsubmerged land to ensure that the littoral owner does not

interfere with the public’s future right to use the land

for navigational purposes when it again becomes covered by

the waters of the Great Lakes. Also, the state has the

right to take this unsubmerged land or otherwise take

action inconsistent with the owner’s littoral rights

without giving due compensation to the littoral owner when

it is necessary to make navigational improvements or when

the taking possesses an “essential nexus” to navigation.

Id. at 201. However, just as in Alger, the public may only

use the land in question for navigational purposes25 when

the land is covered by the waters of the Great Lakes.

25
We have recognized fishing as an incident of the
navigational servitude in inland rivers and lakes.
Collins, supra at 48-49. In Collins, we noted that the
right to fish was limited to the stream itself and that “in
exercising this right people cannot go upon the uplands of
riparian owners in order to gain access to the water. If
they do that they are guilty of trespass.” Id. at 49. See
also Bott, supra at 64-65, in which the servitude was
further limited.

26

 Because the majority misapprehends the nature of this

limited title, it has misconstrued the importance of the

“ordinary high water mark” as it is described in Peterman.

While recognizing the state’s right to improve navigation,

we also sought to limit the property that could be

adversely affected by such improvements. To determine the

scope of this limitation, we examined former MCL 281.952,

which was part of the Inland Lakes and Streams Act, as well

as cases defining the scope of the public trust doctrine on

rivers, including Grand Rapids Booming Co v Jarvis, 30 Mich

308, 318-321 (1874) (holding that the public right of

navigation was confined to the stream itself and that its

boundary was the line of ordinary high water), and Hall v

Alford, 114 Mich 165, 167-168; 72 NW 137 (1897) (noting

that land alongside a river above the high water line could

not be taken without just compensation and due process).

On the basis of our review of these authorities, we

determined that “‘the limit of the public’s right is the

ordinary high water mark of the river.[26] This means that

26
We adopted the definition of “ordinary high water
mark” from the Inland Lakes and Streams Act, former MCL
281.952(h). Peterman, supra at 198 n 29. That statute
defined the mark as,

27

the ownership of fast land[27] is unqualified and not

burdened with [the state’s right to improve navigation].’”

Peterman, supra at 198 (citation omitted). Applying this

rule of rivers to the Great Lakes, we held that destruction

of the littoral owner’s property above the “ordinary high

water mark” was “an unconstitutional taking of property

without due process and just compensation.”28 Id. at 200.

the line between upland and bottomland which
persists through successive changes in water
levels, below which the presence and action of
the water is so common or recurrent that the
character of the land is marked distinctly from
the upland and is apparent in the soil itself,
the configuration of the surface of the soil, and
the vegetation.
27
“Fast land” is “property that is ‘above the high-
water mark of’ the stream, river, or other body of water
that abuts the property.” Peterman, supra at 181 n 4,
quoting 26 Am Jur 2d, Eminent Domain, § 192, p 873.

28
The plaintiffs’ recovery in Peterman was not limited
to compensation for the damage done to the fast lands. We
also concluded:

While generally the navigational trust
permits the state to improve waterways without
compensating for nonfast lands, the trust does
not grant blanket authority to destroy private
property-- the loss of the property must be
necessary or possess an essential nexus to the
navigational improvement in question. In the
instant case, no essential nexus existed between
the construction of the boat launch and the utter
destruction of plaintiffs’ beach. The taking of
the property served no public interest because
the ramp could have been built without destroying
plaintiffs’ property. Thus, we affirm the trial

28

 Thus, contrary to the claims of the majority, Peterman

did not alter the rule of Warner and Hilt that the public’s

right to use property under the public trust doctrine is

limited to submerged lands. Rather, the “ordinary high

water mark” is simply the outside edge of property that may

either be regulated to preserve future navigational

interests at times of high water or taken without

compensation for navigational improvements. Id. at 202.

The majority fails to recognize that this Court’s holding

applied only to the “public’s rights” under the

navigational servitude. As a result, the majority

unwarrantedly expands the scope of our holding in Peterman

to create new rights under the public trust doctrine,

rights that were never contemplated in that case.

II. MISDEFINITION OF LANDS WITHIN THE PUBLIC TRUST DOCTRINE.

Even if the majority were correct in its understanding

of the “ordinary high water mark,” which for the reasons

set forth I do not believe it to be, its definition of

lands encompassed by the public trust doctrine is

inconsistent with both the common-law scope of the public

trust doctrine and the realities of the Great Lakes. The

court's award of damages for the loss of
plaintiffs’ property [i.e., the property below
the “ordinary high water mark”]. [Id. at 201-
202.]

29

majority does not apply Michigan law, but instead, without

analysis or explanation, summarily adopts Wisconsin’s

definition of the “ordinary high water mark,” which it

derives from a case involving a Wisconsin river. Further,

while the majority admits that the “ordinary high water

mark” is a term used to define the scope of the public

trust doctrine in tidal waters, it fails to account for the

fact that the Great Lakes have no true scientific low and

high water marks as exist on the seashore. Even given the

majority’s attempt to graft this tidal-based term upon the

nontidal Great Lakes, its definition 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 of Wisconsin it finds amenable,

the majority fails to provide either lakefront property

owners or the public with the slightest guidance in

understanding the lands in which the new rights granted to

the public may be exercised.

The majority defines the “ordinary high water mark” as

“‘the point on the bank or shore up to which the presence

and action of the water is so continuous as to leave a

distinct mark either by erosion, destruction of terrestrial

30

vegetation, or other easily recognized characteristic.’”29

Ante at 27, quoting Diana Shooting Club v Husting, 156 Wis

261, 272; 145 NW 816 (1914). This definition is derived

from a State of Wisconsin case involving that state’s

public trust doctrine as it applies to an inland river.

Why this court now finds it necessary to abandon Michigan

common law and replace it with Wisconsin’s common law, or

at least those portions the majority finds persuasive, is

not explained. As the United States Supreme Court noted in

Shively, supra at 26, the determination of what lands fall

within the scope of the public trust doctrine is different

in each state. After reviewing the laws of several states,

that Court remarked

that each State has dealt with the lands under
the tide waters within its borders according to
its own views of justice and policy, reserving
its own control over such lands, or granting

29
The majority concludes that the boundary of the
public trust doctrine is the “ordinary high water mark”
because the “lake has not permanently receded from that
point and may yet again assert its influence up to that
point.” Ante at 27. Does the majority mean that the
public has access to a littoral owner’s property that,
although currently dry, has been wet at some point in the
past and may again be wet some day in the future? If so,
what is the relevant time frame to determine if the water
has permanently receded or not? Is it a day? Or a month?
Or a year? Or a decade? Or since statehood? Or since the
retreat of the glaciers 14,000 years ago? The majority
does not say. Further, how is a member of the public or a
property owner to ascertain whether lands in question “may
yet again” become submerged? Again, the majority does not
say.

31

 rights therein to individuals or corporations,
whether owners of the adjoining upland or not, as
it considered for the best interests of the
public. Great caution, therefore, is necessary
in applying precedents in one State to cases
arising in another. [Id. (emphasis added).]

The majority has failed to pay heed to the United

States Supreme Court’s advice in this matter. The majority

has also failed to examine the Wisconsin public trust

doctrine in order to determine whether the policy reasons

underlying the majority’s adoption of the Wisconsin

understanding of the “ordinary high water mark” is even

compatible with Michigan’s “views of justice and policy

. . . .” Id. Rather than conduct such a review, the

majority concludes that this definition is apt because it

“has served another Great Lakes state for some hundred

years and is in accord with the term’s limited development

in our own state.” Ante at 29-30.30

However, even a cursory review of the Wisconsin cases

cited by the majority suggests a rule more in line with the

decision of our Court of Appeals-- a decision unanimously

rejected by this Court-- than the rule favored by the

majority. In Diana Shooting Club, a hunter had floated his

30
While the Diana Shooting Club definition has been
used by Wisconsin for nearly one hundred years, the initial
express definition of the water’s edge principle in Warner
predates the Diana Shooting Club rule by sixteen years.

32

boat into an area overgrown by vegetation for the purpose

of shooting wild ducks. The riparian owner claimed that,

pursuant to its ownership of the soil beneath the river,

the members of its organization had the exclusive right to

hunt in those waters. The Wisconsin Supreme Court

recognized the riparian owner’s title in the soil beneath

the river, but also found that the waters themselves

“should be free to all for commerce, for travel, for

recreation, and also for hunting and fishing, which are now

mainly certain forms of recreation.” Diana Shooting Club,

supra at 271. It ultimately held that:

Hunting on navigable waters is lawful when
it is confined strictly to such waters while they
are in a navigable stage, and between the
boundaries of ordinary high water marks. When so
confined it is immaterial what the character of
the stream or water is. It may be deep or
shallow, clear or covered with aquatic
vegetation. By ordinary highwater mark is meant
the point on the bank or shore up to which the
presence and action of the water is so continuous
as to leave a distinct mark either by erosion,
destruction of terrestrial vegetation, or other
easily recognized characteristic. [Id. at 272
(emphasis added).]

Thus, unlike the majority, Diana Shooting Club restricted

public trust activity to the waters themselves. Indeed,

the Wisconsin Supreme Court confirmed this interpretation

in Doemel v Jantz, 180 Wis 225, 236; 193 NW 393 (1923),

noting that:

33

 What was said in the Diana Shooting Club
Case on the subject of the rights of a hunter to
pursue his game up to the ordinary high-water
mark, merely affirmed the public right to pursue
the sport of hunting to the ordinary high-water
mark of a navigable river while the waters of the
river actually extended to such mark.[31]

The Wisconsin Supreme Court later suggested that the

Diana Shooting Club’s definition of the ordinary high water

mark also applied to the Great Lakes. State v Trudeau, 139

Wis 2d 91; 408 NW2d 337 (1987).32 In Trudeau, a littoral

owner along Lake Superior sought to build condominiums

within an area below the “ordinary high water mark” of Lake

Superior. The littoral owner argued that the area in

question was not navigable and, therefore, he was entitled

to use the lake bed. The Wisconsin Supreme Court

disagreed, reasoning that the state’s interest extended to

31
Doemel addressed the public trust doctrine as it
applied to inland lakes. Interestingly, while the majority
claims that a case applying the public trust to rivers is
perfectly legitimate to apply in the littoral context, it
concludes that Doemel is inapplicable, presumably because
it applies to an inland lake.
32
The majority observes that its new definition was
also invoked in a footnote by the Wisconsin Supreme Court
in R W Docks & Slips v State, 244 Wis 2d 497, 510 n 2; 628
NW2d 781 (2001) (citing Trudeau, supra, for the
definition). Ante at 28. However, the R W Docks case
involved a claimed regulatory taking, based on Wisconsin’s
refusal to issue a dredging permit. The location of the
ordinary high water mark was not at issue and the case did
not involve a question of public access to land within the
public trust. Thus, the majority apparently is basing its
new rule on mere dictum from the decision of another
state's Supreme Court.

34

the “ordinary high water mark” of Lake Superior. Id. at

103. In discussing the “ordinary high water mark,” the

court cited with approval the definition from Diana

Shooting Club. However, the court’s ultimate disposition

in that case was to remand “for findings concerning those

portions of the site higher than 602 feet [above sea level,

according to the International Great Lakes Datum], the

[ordinary high water mark] of Lake Superior.” Id. at 110.

Thus, Trudeau held that the “ordinary high water mark” is

defined by the International Great Lakes Datum (“IGLD”)

level-- the very standard that has been unanimously

rejected by the justices of this Court.33

To summarize, none of the few Wisconsin cases cited by

the majority addresses the issue of whether the public has

33
The majority, apparently recognizing the vagueness
of its definition of the "ordinary high water mark,"
observes, “the precise location of the ordinary high water
mark at any given site on the shores of our Great Lakes
remains a question of fact.” Ante at 30. While the
majority again cites Trudeau as an example of how such a
“question of fact” can be answered, ante at 28 n 20, it
neglects to note that Trudeau adopted the International
Great Lakes Datum (IGLD) definition of ordinary high water
mark. Trudeau, supra at 110. However, the majority has
held that the Great Lakes Submerged Lands Act (GLSLA),
which also uses that datum, is not dispositive in defining
the landward boundary of the public trust. Ante at 14-19.
Does the majority mean to suggest that, despite this
Court's holding that the GLSLA is not dispositive, the ILGD
is still relevant in determining the location of the
ordinary high water mark for public trust purposes in this
state? The majority does not say.

35

a right to use currently unsubmerged land below the

“ordinary high water mark” for public trust purposes.

Indeed, the Wisconsin public trust doctrine specifically

limits the public’s use of submerged lands to when those

lands are covered by the waters themselves. In addition,

to the extent that the majority believes that Trudeau makes

the Diana Shooting Club definition applicable to the Great

Lakes, the majority fails to note that Trudeau adopted the

IGLD definition of the “ordinary high water mark” on the

Great Lakes. Trudeau, supra at 110. In determining the

location of the “ordinary high water mark,” Trudeau

specifically relied on the following evidence:

The DNR's area water management specialist,
Richard Knitter, testified that he determined the
lake's OHWM [ordinary high water mark]
approximately one-half mile from the site at a
protected location with a clear erosion line that
was free from excessive wave action. Knitter
then determined that this site's elevation was
602 feet I.G.L.D. He transferred the elevation
of the OHWM site to a number of points at the
project site and concluded that approximately
half of the site was below Lake Superior's OHWM.
The developers' surveyor did not determine the
OHWM of the site or Lake Superior. [Id. at 106-
107.]

The court concluded that “[a]ny part of the site at or

below 602 feet I.G.L.D. is within the OHWM of Lake Superior

and is therefore protected lake-bed upon which building is

prohibited.” Id. at 109. The presence of this single,

36

clear definition stands in stark contrast to the vague and

ever-changing, "fact-specific," “ordinary high water mark”

newly promulgated by the majority. In contrast to the

Wisconsin Supreme Court, this Court expends its energies

explaining why our Great Lakes Submerged Lands Act (GLSLA),

MCL 324.32501 et seq., which relies upon the IGLD, is not

dispositive in defining the landward boundary of the public

trust. Ante at 14-19.

In stating that “we are persuaded to adopt [the Diana

Shooting Club definition of “ordinary high water mark”] to

clarify a term long used but little defined in our

jurisprudence,” ante at 28, the majority adopts the law of

another state, without much explanation as to why that law

has been chosen from among the laws of the fifty states or,

even more significantly, why the law of any other state is

seen as necessary to replace the long-settled law of

Michigan. Further, the majority adopts only a part of the

law of that other state, again without much explanation as

to why it has chosen to adopt only parts of that other

state’s law. Finally, to compound this inexplicable

process, the majority fails to accord significant

consideration to the manner in which the courts of the

other state have interpreted its own law, misconstruing in

37

the process even the few decisions to which it gives

consideration.

Even absent the differences between Wisconsin and

Michigan law, the Diana Shooting Club standard was derived

from the very different context of riparian property.34

Undeterred, the majority simply utilizes this standard

without explanation of how it should be modified for

application on the Great Lakes. The result is a definition

that is doubly vague, because the majority not only fails

to explain what kind of “distinct mark” is considered to be

so “easily recognizable” that it can be allowed to

determine the limits of the public trust, but it also fails

to provide any time frame for determining how “continuous”

the “presence and action of the water” must be in order to

leave such a mark. The majority fails to define either of

these terms in a manner that will enable the public or

34
The majority observes that the Diana Shooting Club
definition is not “far removed from meanings previously
recognized in Michigan.” Ante at 29. In support, the
majority cites MCL 324.30101(i), a part of the current
version of the former Inland Lakes and Streams Act.
However, the majority fails to acknowledge that this
statute expressly states that it does not apply to the
Great Lakes. MCL 324.30101(f). I also assume that the
majority in characterizing its definition as "not far
removed" from another definition-- that which, in fact, has
been the law of Michigan-- is acknowledging, albeit
euphemistically, that it is adopting a new rule. The
majority alternates between the adoption of new rules and
disclaiming that it has adopted such new rules.

38

property owners to determine which lands are within the

public trust. What kind of “distinct mark” is sufficiently

“recognizable” to bring unsubmerged land within the scope

of the public trust? Since it cannot be that point at

which wet sands give way to dry sands-- the majority having

rejected the position of this dissent-- is this “distinct

mark” a function of where the waves have deposited

seashells? Is it a function of where debris has been

washed ashore? Is it a function of where some line of

vegetation can be identified? Or is it a function of where

sand castles are no longer standing? The majority does not

say. Moreover, even if the public or the property owner

could discern the relevant “distinct mark,” how would such

persons determine how “continuous” the “presence and action

of the water” has been-- or indeed must be-- in leaving

such a mark. It cannot be limited to the “current ebb and

flow of the waves,” as that too is the position of this

dissent which the majority rejects. How continuous then is

“continuous?” Is it a month, a season, a year, a century,

or an epoch? Again, the majority does not say.

Moreover, the majority would apparently expand public

access to private littoral lands even beyond its new

definition of the “ordinary high water mark.” The majority

states, “‘where the bank or shore at any particular place

39

is of such a character that it is impossible or difficult

to ascertain where the point of ordinary high-water mark

is, recourse may be had to other places on the bank or

shore of the same stream or lake to determine whether a

given stage of water is above or below ordinary high-water

mark.’” Ante at 27-28, quoting Diana Shooting Club, supra

at 272 (emphasis added). Does the majority intend by this

to say that the public may now cross onto private littoral

property in order to determine where the new "ordinary high

water mark" lies? If so, the public would seem to have

access to such property even beyond the "ordinary high

water mark." The only apparent limitation on the public’s

right of access is that the "ordinary high water mark" must

be “difficult” to ascertain. Given that under the

majority's new definition the "ordinary high water mark"

will never be anything other than difficult to ascertain--

and, as the majority admits, will generally constitute a

"question of fact” ante at 30-- there appears to be

considerable potential for access by the public upon

private littoral lands even beyond the "ordinary high water

mark." Still, the majority is indisposed to answer any of

the questions that are most dispositive in determining

where private and public rights begin and end. In eventual

course, these questions, so indispensable to the

40

determination of individual property rights, will have to

be addressed by the Department of Natural Resources (DNR)

with virtually no guidance from this Court.

In leaving such questions to the DNR, the majority

adopts the premises of administrative law in the very

different realm of property law, by defining critical

questions of property rights not in well-understood terms

that conduce toward specific boundaries, but in language

drawn from the modern administrative process in which vague

and empty terms are given meaning by regulatory agencies,

such as the DNR, with subsequent deferential review by the

courts. This is a prescription for uncertainty, and

uncertainty is a prescription for litigation, and the

majority with its eyes wide open has chosen to give

Michigan both.

Further, the majority’s inclusion of unsubmerged lands

within the public trust because “the lake has not

permanently receded from that point and may yet again exert

its influence up to that point,” ante at 27, conflicts with

the traditional common-law definition of the public trust

doctrine. At common law, the high water mark was defined

as “‘the line of the medium high tide between the springs

41

and the neaps.[35] All land below that line is more often

than not covered at high water, and so may justly be said,

in the language of Lord Hale, to be covered by the ordinary

flux of the sea.’” Borax Consolidated, supra at 25,

quoting Attorney-General v Chambers, 4 De G M & G 206, 217;

43 Eng Rep 486 (1854).36 High tides move with the moon as

it revolves around the Earth. At most ocean shores

35
The “spring tide” is defined as “the large rise and
fall of the tide at or soon after the new or full moon.”
The “neap” tide is defined as “those tides, midway between
spring tides, that attain the least height.” Random House
Webster’s College Dictionary (1997).
36
The majority asserts that I offer this as an
“authoritative definition for ordinary high water mark” and
that somehow there is a tension between this definition and
my criticism of the majority’s creation of new law in this
case. Ante at 41 n 33. That the majority does not
recognize the English common-law definition of the ordinary
high water mark is not surprising given that its novel
definitions of the term bear no resemblance. According to
the majority:

[The] ebb and flow, thus reaching one point
on the shore at low tide and reaching a more
landward point at high tide. The latter
constitutes the high water mark on a tidal shore.
The land between this mark and the low water mark
is submerged on a regular basis, and so remains
subject to the public trust doctrine as
“submerged land.” [Ante at 20-21 (emphasis
added).]

Thus, it appears that the majority takes the position
that the public trust extends to the highest high tide.
However, as noted in Borax Consolidated, the ordinary high
water mark is not the highest high tide, but rather the
medium high tide between the spring and neaps, which is
rarely exposed to the open air for more than twenty-four
hours.

42

throughout the world, two high tides and two low tides

occur every lunar day.37 A typical seaport will alternate

between high and low tides about every six hours. Thus,

while the ocean bed may be temporarily exposed to the open

air during low tide, such land will again be submerged

during the next high tide. Because the land is continually

being affected by the action of the water, it falls within

the scope of the English common-law doctrine, even when

exposed to open air.

In contrast, tidal forces acting on the Great Lakes

are of such a “trifling effect,” Warner, supra at 239, that

they cannot even be measured without precise instruments.38

Thus, there is no “high” or “low” water marks, as they are

scientifically understood. Instead, lake levels are

affected seasonally by the natural operation of the

hydrologic cycle, which includes precipitation,

37
A lunar day is the time it takes for the moon to
return to a point above the Earth: approximately twenty-
four hours and fifty minutes. See definition of "day,
lunar" at (accessed June 24, 2005).
38
According to the National Oceanic and Atmospheric
Administration, spring tide in the Great Lakes is less than
2 inches (5 cm) in height. See (accessed June 24, 2005).

43

evaporation, condensation, and transpiration.39 During the

winter, the air above the lakes is cold and dry, compared

to the relatively warm temperature of the lake. As a

result, the amount of water that evaporates into the air

exceeds the water vapor that condenses back into the lakes.

Any precipitation that falls on the lands surrounding the

lakes is in the solid form of snow, and, thus, is not

returned to the lake via runoff. As a result, more water

leaves the lake than enters it in this season, resulting in

a decline in lake levels.40 As snow begins to melt in the

early spring, runoff into the lakes increases. Further, as

temperatures increase, the warm, moist air above the

relatively cold lakes limits evaporation to an amount less

than the rate of condensation. As a result, average water

39
See, generally, United States Army Corps of
Engineers and the Great Lakes Commission, Living with the
Lakes (1999), pp 13-18. This publication may be accessed
at (accessed June 24, 2005).
40
According to the United States Army Corps of
Engineers, the lowest average lake level from 1918 to 2003
occurred as follows: Lake Superior (March, 601.21 feet
above sea level); Lakes Michigan and Huron (February,
578.48 feet above sea level); Lake St. Clair (February,
573.43 feet above sea level); and Lake Erie (February,
570.8 feet above sea level). See

(accessed June 24, 2005).

44

levels rise throughout the spring and eventually peak

during midsummer.41

These natural phenomena suggest the unworkability of

placing the public trust boundary at the “ordinary high

water mark” as it is defined by the majority. If the

“ordinary high water mark” is defined as a static boundary,

then the public trust doctrine would include unsubmerged

lands that are only covered by the water on an infrequent

basis. Under the English common-law definition, such lands

should be treated in a manner similar to lands covered by

the spring tides, i.e., they are not subject to the public

trust doctrine. If the “ordinary high water mark” is

defined as a floating boundary, then it becomes nearly

impossible for either a beach user or a littoral property

owner to determine where the boundary is located. To

account for the hydrologic cycle, the “ordinary high water

mark” would need to be redefined on a monthly or seasonal

basis. Further, the boundary would have to be readjusted

on a year-by-year basis to account for long-term changes to

41
According to the United States Army Corps of
Engineers, the highest average lake level from 1918 to 2003
occurred as follows: Lake Superior (September, 602.23 feet
above sea level); Lakes Michigan and Huron (July, 579.43
feet above sea level); Lake St. Clair (July, 574.77 feet
above sea level); Lake Erie (June, 571.95 feet above sea
level). Id.

45

lake levels caused by weather fluctuations. Since 1918,

the Great Lakes have experienced three periods of extremely

low water levels, in the late 1920s, mid-1930s, and mid-

1960s. Periods of extreme high water were experienced in

the early 1950s, early 1970s, mid-1980s, and mid-1990s.

The “point on the bank or shore up to which the presence

and action of the water is so continuous as to leave a

distinct mark either by erosion, destruction of terrestrial

vegetation, or other easily recognized characteristic” in

1926 would have been in a completely different location

than the point reached in 1986. Likewise, that point in

February of each year would be a completely different

location than the same point in July of each year. Thus,

any definition of where “the presence and action of the

water is so continuous as to leave a distinct mark either

by erosion, destruction of terrestrial vegetation, or other

easily recognized characteristic” must vary depending on

what method is used to calculate that level.42

42
For example, on Lake Huron, the average yearly level
of the lake in 2003 was 577.07 feet above sea level. The
average yearly level of the lake from 1918 to 2003 was
578.94 feet above sea level. The monthly average for June
2003 was 577.43 feet above sea level. The monthly average
for the month of June, from 1918 to 2003, was 579.33 feet
above sea level.

46

 The majority’s “ordinary high water mark” also fails

to account for changes to the location of the waterline

caused by events unrelated to lake levels. First, wind and

barometric forces can raise water at one end of the lake,

causing a dip in water level at the opposite end. If the

forces raising the water on one end suddenly cease, the

entire lake may move in a see-saw fashion, alternatively

rising and falling on each end in a “pendulum-like”

movement. This phenomenon, called “seiche,” can last from

minutes to hours to days. Second, ice or foreign bodies

such as plants may block the normal flow of rivers and

channels connected to the Great Lakes, thereby causing an

increase or decrease in the water level of connected lakes.

Finally, most of the Great Lakes basin is rising, as the

Earth’s crust slowly rebounds from the removed weight of

the glaciers that covered the area around 14,000 years ago.

Because the glaciers were thickest in the northern part of

the basin around Lake Superior, this region is rebounding

at a faster rate, nearly twenty-one inches a century, than

the rest of the basin. As a result, the Great Lakes are

“tipping” in a way that causes water increasingly to pool

in the southern portions of the Great Lakes basin. The

shoreline is receding in the northern basin and advancing

in the southern basin. Thus, while the “ordinary high

47

water mark” makes sense in tidal waters, it does not make

sense in the nontidal Great Lakes because of the irregular

nature of lake level fluctuations.

Further, the majority’s new definition fails to

account for those times when the waters of the Great Lakes

go beyond the “ordinary high water mark,” assuming that

such an event could even occur under the majority's new

definition. The majority justifies its new rule, on the

basis of this Court's statement in Peterman, supra at 198,

that “‘the limit of the public's right is the ordinary high

water mark . . . .’” (Citation omitted.) Ante at 40.

However, the majority also states that the public trust

doctrine serves to protect “the waters of the Great Lakes

and their submerged lands . . . .” Ante at 31. Thus, when

the water’s edge is beyond the “ordinary high water mark,”

there is a conflict between the majority’s stated limit of

the public right to the “ordinary high water mark” and its

inclusion of submerged lands within the public trust. Is a

property owner or a member of the public to understand that

use of submerged lands between the “ordinary high water

mark” and the water’s edge is forbidden? Does this mean

that a member of the swimming or walking public is trapped

within the Great Lakes until the water recedes to the

“ordinary high water mark?” How does a member of the

48

public or a property owner determine where the “ordinary

high water mark” is in such a circumstance? Does limiting

public access to a submerged "ordinary high water mark"

conflict with our holding in Warner, supra at 239, that the

public trust begins where the water is, “whether the water

be deep or shallow”? Or is the majority’s reliance on

Peterman somehow silently qualified to apply only when

water levels on the Great Lakes lie below the “ordinary

high water mark”? The majority again does not say.

By contrast, limiting the public’s right of access to

the “water’s edge,” i.e., the point at which wet sands give

way to dry sands, addresses all of the various forces at

work on the lakes and is consistent with the common-law

definition of the high water mark. First, the “water’s

edge” principle reflects the dynamic natural forces at work

on the Great Lakes. As the waters of the Great Lakes move,

so too does the area where wet sands give way to dry sands.

The littoral property owner’s title, and with it his or her

littoral rights, including the right of exclusive

possession, follows the movement of the water.43 As we

43
However, as noted in Peterman, supra at 193-198, the
littoral owner’s rights are subject to regulation by the
state. See e.g., MCL 324.32503 (prohibiting filling or
altering land below the statutorily defined high water mark
without a permit), MCL 324.32512 (prohibiting certain acts

49

explained in Warner, the littoral property owner’s rights

end where the water is “whether the water be deep or

shallow, and although it be grown up to aquatic plants, and

although it be unfit for navigation.” Warner, supra at

239. At that point, the state’s public trust title begins.

Id. As correctly observed by the DNR, the area “where the

water is” includes the wet sands where the waters of the

Great Lakes have marked their current and continuous

presence. Because by definition such sands are infused

with water, the wet sands fall within the definition of

“submerged lands.” As a result, the “water’s edge” is the

point at which wet sands give way to dry sands. The

water’s edge marks the boundary between submerged and

unsubmerged lands.44 This position is consistent with the

position of the defendant littoral owners in the instant

case. Contrary to plaintiff’s expressions of concern that

of waterway maintenance without a permit), and MCL
324.32512a (prohibiting mowing or removing vegetation
except as permitted by the DNR).
44
The majority claims that I would “grant an exclusive
right of possession to littoral landowners . . . down to
where unsubmerged land ends, which [I] locate[] at the
water’s edge . . . .” Ante at 38. A significantly more
precise statement of my position is that the littoral
landowner has the right of exclusive possession to
unsubmerged land, while the public has the right to use
submerged land under the public trust doctrine. The
water’s edge, i.e., where the wet sands give way to dry
sands, where submerged land meets unsubmerged land, marks
the limit of each of these rights.

50

she would be forced to walk in the water, as a member of

the public she has always had the right to walk along the

wet sands abutting the Great Lakes. Because the wet sands

are submerged lands, a littoral owner has never had the

right to prevent a member of the public from using such

lands.

While I agree with the DNR’s inclusion of the wet

sands as submerged lands, the DNR reaches the same

erroneous conclusion as the Court of Appeals, namely that

the littoral owner holds title only to the “ordinary high

water mark.”45 This interpretation apparently is based on

the following passage from Hilt, supra at 226:

The riparian owner has the exclusive use of
the bank and shore, and may erect bathing houses
and structures thereon for his business or
pleasure (45 C.J. p 505; 22 L.R.A. [N.S.] 345;
Town of Orange v. Resnick, [94 Conn 573, 578; 109
A 864 (1920)]); although it also has been held
that he cannot extend structures into the space
between low and high-water mark, without consent
of the State (Thiesen v. Railway Co, 75 Fla. 28
[78 South. 491; L.R.A. 1918E, 718]). And it has
been held that the public has no right of passage
over dry land between low and high-water mark but
the exclusive use is in the riparian owner,
although the title is in the State. Doemel v
Jantz, [supra].

45
The DNR’s position is consistent with the Attorney
General’s opinion in 1978 noting that title to property
between the high water mark and the water’s edge remains in
the state, but the right of exclusive use remains in the
littoral owner. OAG, 1977-1978, No 5,327, p 518 (July 6,
1978).

51

 However, this statement from Hilt does not represent a

conclusion of this Court. Rather, it is cited as part of

this Court's response to the notion that Kavanaugh “gave

the State substantially absolute title . . . to the upland

or to use them for any public purposes.” Id. at 224. In

rejecting this theory as a justification for maintaining

Kavanaugh, we noted that the “title” conferred to the state

in Kavanaugh was confined “to the same trust which applies

to the bed of the lake, i.e., that the State has title in

its sovereign capacity and only for the preservation of the

public rights of navigation, fishing, and hunting.” Id.

Thus, “the right of the State to use the bed of the lake,

except for the trust purposes, is subordinate to that of

the riparian owner . . . .” Id. at 226, citing Town of

Orange, supra at 578. To support this point, Hilt noted

that “it has been held that the public has no right of

passage over dry land between low and high-water mark but

the exclusive use is in the riparian owner, although the

title is in the State.” Hilt, supra at 226, citing Doemel.

This demonstrates that Hilt was not adopting the rule

from Doemel, but rather was using that case to demonstrate

that Kavanaugh did not give unlimited title to the state

and, therefore, that the title granted to the state by

Kavanaugh was not a valid basis for maintaining the meander

52

line as a boundary. Thus, the only basis for holding that

the state holds title to unsubmerged land up to the so-

called high water mark is to misunderstand the importance

of Hilt’s reference to Doemel. It is clear that when Hilt

said that a littoral owner’s title goes to the water’s

edge, it meant “water’s edge.” Likewise, when Warner said

that the state’s title begins where the water is, it meant

“where the water is.”

Second, the “water’s edge” principle is consistent

with the common-law definition of the high water mark.46 At

common law, the area of medium high tide would seldom be

dry for more than twenty-four hours at a time. Lorman v

Benson, 8 Mich 18, 29 (1860). In other words, the land at

or below medium high tide was generally covered by the

ocean during the daily tidal cycle. Therefore, this tidal

land was considered “waste land” that was “‘not capable of

ordinary cultivation or occupation.’” Id. at 28-29

46
Although I do not agree that the “wet sands area” as
it applies to the public trust doctrine is equivalent to
the “ordinary high water mark” as it applies to the
navigational servitude, at least one commentator has
observed that the “wet beach” is the area “between ordinary
high watermark and ordinary low watermark.” Pratt, The
legal rights of the public in the foreshores of the Great
Lakes, 10 Mich Real Prop Rev 237, 237 (1983). According to
this commentator, the “high water mark” and the “water’s
edge” are, for all practical purposes, the same in the
nontidal Great Lakes.

53

(citation omitted). Similarly, in the instant case, the

wet sands are being inundated with water by the current ebb

and flow of the waves. However, when lake levels

fluctuate, any land that is no longer subject to the ebb

and flow of the waves becomes unsubmerged land, which is

suitable for “ordinary occupation” and, therefore, as with

lands affected by the spring tides, is not within the scope

of the public trust doctrine.

Finally, the “water’s edge” principle is significantly

more workable than the majority’s “ordinary high water

mark.” A member of the public can, by simple observation,

without the use of "aerial photographs, government survey

maps . . . and stereo [three-dimensional] photographs,"

ante at 28 n 20, determine where he or she is allowed to

use land without seeking the littoral owner’s permission.47

47
The majority claims that the “water’s edge”
principle provides no greater “clarity” than its new rule
and that the “water's edge” standard constitutes a “charade
of clarity.” Ante at 41-42. The reader might wish to
ponder this assertion. On the one hand, the traditional
standard for delineating between public and private lands--
the standard that I would retain-- requires merely that a
person be able to distinguish between wetness and dryness,
between wet sands and dry sands, between where there is
water and where there is not. Even a Supreme Court
justice, I would submit, should be reasonably able to draw
such distinctions. Contrast this to the majority’s test
that would require a person to locate “the point on the
bank or shore up to which the presence and action of the
water is so continuous as to leave a distinct mark either

54

When the waters recede, land that is no longer subject to

the current ebb and flow of the waves will become

unsubmerged land and, therefore, will again be under the

exclusive control of the littoral property owner.

In conclusion, as we noted in Warner, supra at 239,

although in dictum, the absence of tides “practically makes

high and low water mark identical for the purpose of

determining boundaries [along the Great Lakes].” The

“water’s edge” principle recognizes this reality by

defining the rights of both the littoral property owner and

the public in terms of the actual location of the water.

This definition is consistent with the natural forces at

work on the Great Lakes; it is consistent with the common-

law scope of the public trust doctrine; it is consistent

with historical practice in Michigan; and it creates a

public trust area that can readily be identified. The

majority has presented no reason why this longstanding rule

no longer represents a reasonable balance between the

competing interests at issue in this case. Yet, the

by erosion, destruction of terrestrial vegetation, or other
easily recognized characteristic.” The majority does not
even attempt to offer guidance to the public or property
owners as to the meaning of this standard. Rather, the
majority suggests that expert witnesses will be able to
identify this mark by using “aerial photographs . . ., the
government survey maps, the site’s present configuration,
and stereo [three-dimensional] photographs . . . .” Ante
at 28 n 20.

55

majority discards this clear standard, which has operated

for most of the history of our state to create harmonious

relations between the public and littoral property owners,

and replaces it with an unknowable standard of its own

invention that requires littoral property owners and the

public to guess where the “ordinary high water mark” is

located.

III. MISUNDERSTANDING OF JUS PRIVATUM/JUS PUBLICUM

The majority’s determination to apply what it has

defined as the “ordinary high water mark,” despite a lack

of foundation in Michigan law, appears to be rooted in its

fundamental misunderstanding of the distinction between the

jus privatum and jus publicum. The majority notes,

correctly, that the title to the submerged lands of

navigable waters is bifurcated; with the jus publicum

safeguarding the rights to the public and the jus privatum

safeguarding private property rights, subject always to the

jus publicum. Nedtweg v Wallace, 237 Mich 14, 20; 208 NW2d

51 (1927). However, rather than limit application of the

doctrine to submerged lands, the majority instead holds

that any conveyance of lakefront property consists solely

of the jus privatum, with the state’s jus publicum title

including unsubmerged lands up to the “ordinary high water

mark.” I disagree, and instead believe that the jus

56

publicum applies only to the submerged lands of the Great

Lakes.

The distinction between jus privatum and jus publicum

was first addressed by this Court in Lorman, supra. In

Lorman, a former lessee of property abutting the Detroit

River claimed that he had a right to use and maintain a

boom constructed in the water.48 Under the English common

law, private title to the bed of a navigable river was

determined by whether the river was subject to the ebb and

flow of the tides. Lorman, supra at 26-27. However,

regardless of who held the jus privatum, the private

owner’s rights were limited to those uses that would not

interfere with “the public easement of navigation[.]” Id.

at 27. In tidal rivers, the jus privatum was subject to

the public’s “right of navigation over the whole bed of the

stream at high tide, and over the water, so far as it was

practicable, at all tides.” Id. at 27-28. However, the

public’s rights too were not without limit. First, the

public’s rights did not extend to land “not commonly

submerged by the average ordinary high tides, which would

seldom leave any of the shore dry more than twenty-four

48
A “boom” is defined as “a chain, cable, etc.,
serving to obstruct navigation.” Random House Webster’s
College Dictionary (1997).

57

hours at a time.” Id. at 29. Second, the public’s use of

the jus publicum was limited to “water rights,” i.e., the

right of navigation and fishing. Id. at 30. No matter who

held title to the river bed, the public’s right to use the

river was always limited to the water itself. Because the

former lessee sought to use the Detroit River for purposes

other than navigation or fishing, the Court determined that

the former lessee’s use was not superior to that of the

riparian owner and, therefore, the riparian owner could

bring an action for trespass.

The limitation of the jus publicum to use of the water

itself was also expressed by this Court in McMorran Milling

Co v C H Little Co, 201 Mich 301; 167 NW 990 (1918).49 In

McMorran Milling, a dredger entered into a contract with

the riparian owner for the right to remove sand from the

49
The majority cites Justice Campbell’s dissenting
opinion in Sterling v Jackson, 69 Mich 488, 506-507; 37 NW
845 (1888), in support of its jus privatum/jus publicum
analysis. Ante at 11. The Sterling majority observed that
title to the river bed belongs to the riparian owner, but
that such title is limited by the public’s right of
navigation. Sterling, supra at 500. However, the public’s
rights in that case were limited to “using the waters of
the bay for the purpose of a public highway in the
navigation of [the defendant’s] boat over it . . . .” Id.
at 501. Aside from the right of navigation, all other uses
of the river bed belonged exclusively to the riparian
owner. Id. In other words, the riparian owner’s jus
privatum was limited only by the uses expressly allowed
under the jus publicum, i.e., the right of navigation. Id.

58

river bed. The federal government, concerned that such

dredging would adversely affect navigation, ordered the

dredger to cease operation. After the dredger complied

with this order, the riparian owner brought suit demanding

the dredger continue to pay for the right to remove sand.

This Court began its analysis by noting that the riparian

owner “holds the naked legal title [the jus privatum], and

with it he takes such proprietary rights as are consistent

with the public right of navigation [the jus publicum], and

the control of congress over that right.” Id. at 314

(citation omitted). Thus, the riparian owner’s title is

“‘held at all times subordinate to such use of the

submerged lands and of the waters flowing over them as may

be consistent with or demanded by the public right of

navigation.’” Id. at 310 (emphasis added; citation

omitted). The Court concluded that the dredger was evicted

from the river bed by the government, which on the basis of

its right to protect navigation had superior title over the

riparian owner. Therefore, the riparian owner was not

entitled to further payment after the date of eviction.

Id. at 318.

Unlike rivers and inland lakes, the state holds both

the jus privatum and jus publicum title to the submerged

lands of the Great Lakes. Nedtweg, supra. In Nedtweg, the

59

state sought to lease several thousand acres of relicted

land abutting Lake St. Clair that were considered submerged

in law.50 In order to do so, the Legislature passed

legislation authorizing long-term leases of such land to

private individuals. The Department of Conservation

refused to enter into such leases, arguing that the

submerged-in-law land was held in trust for the public and

could not be conveyed. We noted that the title to

submerged land is bifurcated between the jus publicum and

the jus privatum. Nedtweg, supra at 17.

The State may not, by grant, surrender such
public rights any more than it can abdicate the
police power or other essential power of
government. But this does not mean that the State
must, at all times, remain the proprietor of, as
well as the sovereign over, the soil underlying
navigable waters. [Id.]

In other words, the state may convey the jus privatum

in submerged Great Lakes land, as long as that conveyance

does not interfere with the public’s “rights of navigation,

hunting and fishing.” Id. at 18. The Court noted that,

because the land in question was now dry land, it was no

longer suited for the purposes protected by the jus

publicum. Id. at 22. In other words, contrary to the

majority’s understanding, while the “submerged” lands in

50
Nedtweg was decided during the reign of the
Kavanaugh cases.

60

question were still part of the public trust, the lease was

permissible because there was no interference with the uses

protected by the public trust doctrine.51

To summarize, under the common law as it has developed

in Michigan, the jus privatum is held by either the

adjoining property owner (in the case of rivers or inland

lakes), or by the state itself (in the case of the Great

Lakes). In either case, the jus privatum title is held

subject to the public’s rights under the jus publicum.

However, the public’s jus publicum rights are limited to

use of the waters themselves. Lorman, supra; McMorran

Milling, supra. Further, the jus publicum only protects

the public’s right to use private property for specific

purposes, such as navigation, fishing, and hunting.

Nedtweg, supra. There are no cases that support the

majority’s view that the jus publicum extends beyond the

water’s themselves to include unsubmerged land. Lorman,

supra at 29. On the Great Lakes, the overlap between jus

privatum and jus publicum would only come into play when

the Legislature conveyed a portion of the submerged lands

to a third party. Because, as argued previously, the

51
The majority claims that the lands at issue in
Nedtweg were “set[] apart from the public trust.” Ante at
27.

61

littoral owner’s title never extends past the wet sands,

unsubmerged land between the wet sands and the “ordinary

high water mark” is simply not, and has never been, part of

the jus publicum.

IV. QUESTIONS RAISED BY MAJORITY OPINION

Questions directly raised by the majority's departure

from the longstanding status quo in our state include the

following:52

(1) Are there property tax consequences to the fact

that the exclusive rights of littoral property owners would

now extend not to the water’s edge, but only to the

“ordinary high water mark”?

52
The majority maintains that this case “raises none
of the questions that [this dissent] poses,” while, of
course, choosing to answer none of these questions. Ante
at 44. The majority is mistaken if it believes that it can
replace settled law in Michigan with a selective part of
the law of another state-- indeed the least clear part of
that other state's law-- and create a new legal
relationship between littoral property owners and the
public, all the while avoiding giving rise to new legal
questions and generating litigation. Each of the questions
set forth in this section, as well as a great many more
that neither I nor the majority can anticipate, will be
introduced into the legal system as a direct result of the
majority’s opinion. This opinion will be subject to
cryptanalysis for many years to come and will produce
litigation and dispute where up to now there has been none.
Perhaps equally troubling, when clarity in the law is once
again established in the area of littoral property rights--
many years from now, and only after what is likely to be an
unnecessary period of fractiousness and contention-- it
will likely come as a function of administrative
determinations of private property rights.

62

 (2) Given that the majority has expanded the lands

subject to the public trust doctrine, will there be a

corresponding expansion of uses that are considered

“inherent in the exercise of traditional public trust

uses”? That is, given that the public trust now

encompasses dry land up to at least the “ordinary high

water mark,” are there new uses of these lands that

arguably can be connected to traditional public trust uses?

(3) Given that there are always more members of the

public who may wish to use a property in a particular

manner than there are property owners, what permanent

protections exist to ensure that the Department of Natural

Resources, as a political institution, will not seize upon

the vagueness and lack of definition of the majority

opinion increasingly to broaden the “public trust” at the

expense of littoral property rights?

(4) What are the implications of the majority's

opinion for the rights of other littoral property owners on

lakes other than the Great Lakes, whose properties also

afford access to recreational opportunities for the public?

(5) Given the majority’s conclusion that “the public

trust doctrine serves to protect resources,” what are the

implications of the majority’s opinion for the rights of

non-littoral property owners, whose properties abut or have

63

an impact upon state lands used by the public for

recreational purposes?

V. CONCLUSION

I would not alter the longstanding status quo in

Michigan, and I, therefore, dissent. The majority has

altered this status quo by: (1) redefining the lands

subject to the public trust doctrine on the basis of

Wisconsin’s definition of the “ordinary high water mark”;

and (2) holding for the first time that the use of

unsubmerged lands is permitted by the public trust

doctrine.

The majority fails to identify any defects in the

present rules of this state, rules that have endured since

statehood, that would justify its departure from the

“water’s edge” principle in favor of unclear rules of its

own design. The present rules have created a reasonable

and harmonious balance between the rights of the public and

the rights of littoral property owners. Under these rules,

the littoral owner’s title follows the shoreline, i.e.,

where the wet sands give way to the dry sands, wherever

this may be from time to time. Because the boundary is

dependent on the natural condition of the Great Lakes, it

is easily identifiable, thus, creating a practical and

workable rule. The public’s legal right to use private

64

property along the shores of the Great Lakes should remain,

as it has always been, within this realm.

The critical flaw in the majority’s decision making is

that it creates new law, not on the basis of the millions

of amicable interactions that occur each year between the

public and lakefront property owners, but instead on the

basis of the single aberrational dispute in this case. In

the place of a stable and well-understood law that has

worked well for more than a century and a half to define

the rights of the public and littoral property owners and

to minimize litigation, the majority, in reaction to the

present dispute, finds it necessary to introduce a range of

novel concepts into Michigan property law. Apart from

lacking any basis in present Michigan law, these concepts

are essentially undecipherable. Thus, in an area of the

law in which stability and clarity are paramount, the

majority offers rules that are obscure and that will be

subject to evolving definition by environmental regulatory

agencies. Almost certainly, these new rules, in

conjunction with the majority’s disinclination to define

the critical aspects of these rules, will lead to an

escalation in the number of disputes between members of the

public and property owners along the Great Lakes. In the

65

place of harmony, there will be litigation.53 In the place

of unobstructed beachfront, there will be fences. Five

hundred cases from now, and after the expenditure of

enormous litigation costs and legal resources, Michigan, if

it is fortunate, will once again reach the state of

equilibrium that it enjoys today and that it has enjoyed

for many decades under current law.

I would affirm the result of the Court of Appeals,

reverse that portion of the Court of Appeals opinion giving

53
In the end, it will not be surprising if the day-to-
day rights of the public even to beach-walk-- the
ostensible triggering concern of this case-- were to be
diminished by the majority’s decision. For, in the place
of a rule in which property rights are clearly defined and
protected, and in the place of a regime in which most
littoral property owners have easily accommodated the
public’s interest in activities such as beach-walking, the
majority creates a far more uncertain rule, one in which
property rights have become more ambiguous and uncertain,
and more subject to political regulation and definition.
Just as some members of the public are likely to become
more assertive in their claim of a “right” to use the
property of another, so too will some property owners
become more assertive in purporting to “defend” their
properties from the encroachments of such persons. At
least some of these owners can be expected to assert their
property rights in circumstances where today this has been
thought unnecessary. It may well be that a legacy of the
majority opinion is the proliferation of fences along the
beaches of the Great Lakes. Fences and more fences. As a
result of the majority’s decision to replace clearly
understood and longstanding rules of private property
rights with new rules in which the public trust is to be
expanded in an uncertain manner, the rights of both the
public and the property owner will likely become less well
protected.

66

the state title to land below the “ordinary high water

mark,” and reaffirm the longstanding principle of Hilt that

the littoral property owner’s title extends to unsubmerged

land and the public’s legal rights under the public trust

doctrine extend to the submerged lands, including the wet

sands.54

Stephen J. Markman

54
Because I agree with the majority that the GLSLA
does not establish the boundaries of the public trust, I
concur in part II(A) of the majority opinion.

67