THE MICHIGAN SUPREME COURT DEFINES THE PUBLIC'S RIGHT TO WALK THE SHORES OF THE GREAT LAKES

LINE IN THE SAND: THE MICHIGAN SUPREME COURT DEFINES THE PUBLIC'S RIGHT TO WALK THE SHORES OF THE GREAT LAKES

8/8/2005
By Stephen M. Guerra In a July 29, 2005 decision, Glass v. Goeckel, the Michigan Supreme Court ruled that the general public has the right to walk the shorelines of the Great Lakes. This ruling reversed an earlier court of appeals decision that granted beachfront property owners the exclusive right to use their property to the water's edge. The Court stated that large bodies of water, including the Great Lakes, are natural resources owned by the public, which the state is obligated to protect and manage as a public trust. Traditionally, such protected public rights included fishing, hunting and navigation. The Court found that, in order to engage in these traditional activities, the public must have the right of passage over the land. Therefore, the Court stated, inherent in the exercise of these traditionally protected public rights is the right to walk along the shoreline, up to and including the land below the "ordinary high water mark." The Court, borrowing from Wisconsin law, defined the "ordinary high water mark" as lying 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." As a result, when land is conveyed to private landowners, it is conveyed subject to the public's rights in the lakes. In other words, although the landowner has title to the shoreline, such title is subject to the public's rights in the Great Lakes. The dissenting members of the Court argued that the public's right to walk the shoreline should only extend to the "wet sands," i.e. the wet portion of the shore over which the lake is presently ebbing and flowing. However, the majority found that land below the "ordinary high water mark," although not immediately and presently submerged, falls within the ambit of the public trust because the Great Lakes have not permanently receded from that point and may once again rise to the ordinary high water mark. The Court drew a line in the sand with its recent decision in Glass v Goeckel that may affect the use of your Great Lakes property. If that line muddies the waters for you, please contact one of our real estate attorneys.
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