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Do Property Owners Have Unlimited Rights To The Great Lakes Shoreline In Michigan?

by | Feb 8, 2021 | Property Law |

 

With two peninsulas and 2,963 miles of shoreline, Michigan has the longest maritime boundary in the United States against four Great Lakes.  As a result, there are several opportunities for residents to purchase real estate with beautiful lakefront property.  Many property owners believe that their land rights extend all the way to the water’s edge, including the entirety of the beach.  In reality, Michigan law recognizes a public easement for the entire length of its Great Lakes shoreline that any member of the public has a right to utilize.

In Glass v Goeckel, 473 Mich 667; 703 NW2d 58 (2005), Joan Glass lives across U.S. Highway 23 in Alcona County from Richard and Kathleen Goeckel, who live on the Lake Huron shore.  Ms. Glass has a fifteen-foot easement passing through the Goeckels’ property that allows access to the lake.  The parties do not dispute that Ms. Glass has a right to reach the shoreline, but dispute whether she has a right to walk the length of the shore on the beach against the Goeckels’ property line.  After repeated inference with her ability to walk the shoreline, Ms. Glass filed suit in Alcona County Circuit Court.  She alleged that the public trust doctrine protects the right for members of the public to access and use the Great Lakes as a navigable waterway.  The Goeckels’ maintained that their property deed defines the lakeshore boundary as “the meander line of Lake Huron” which doesn’t provide for an express easement.  The circuit court found in favor of Ms. Glass, stating that the Great Lakes Submerged Lands Act granted the right for members of the public to walk “lakewards of the natural ordinary high water mark.”  However, the circuit court stated that the definition of “high-water mark” is ambiguous and may not be enforceable.  The Michigan Court of Appeals reversed the trial court and determined that the public did not have a right to traverse the land between the statutory ordinary high water mark and the water’s edge.  Ms. Glass appealed to the highest tribunal in the state.

The Michigan Supreme Court determined that the common law public trust doctrine is what controls in this instance, not the Great Lakes Submerged Lands Act.  The shore is that ground between the ordinary high-water mark and low water mark, and this ground belongs to the sovereign.  To clear up any and all ambiguity, the high court adopted Wisconsin’s definition of “high-water mark” as:

  • “[T]he 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 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.”

On any particular shoreline, the exact location of the high-water mark is a question of fact.  Nevertheless, the Michigan Supreme Court held that the protection of the public trust doctrine extended to members of the general public, including Ms. Glass, foe walking along the shoreline of the Great Lakes below the high-water mark.  The Goeckels’ still hold private title of their property all the way to the water’s edge, but it remains subject to the easement created by the public trust.

Glass v Goeckel is often called the “Beachwalker Case” and laid out three principles:

  • First, members of the public cannot walk above the ordinary high-water mark without the lakeshore owner’s permission or else it will constitute a trespass.
  • Second, the Glass decision only defined the right to “walk” the public trust area. Members of the public cannot lounge, loiter, sunbath, play games or have a picnic on the shoreline area without the permission of the lakeshore owner.
  • Third, lakeshore owners cannot attempt to prohibit members of the public from walking the public trust area below the ordinary high-water mark or else they will be liable for tortious activity.

Currently, the public trust access remains the law of the state.  In neighboring Indiana, a similar “beachwalking” case arose through the trial court, the Indiana Court of Appeals and the Indiana Supreme Court.  All three courts recognized the public’s right to access the shoreline below the high-water mark pursuant to common law.  The Indiana lakeshore property owners applied for review to the United States Supreme Court, but they denied certiorari in February 2019.  If the justices had accepted the case and rendered an opinion inconsistent with the public’s right to access, then it would have effectively superseded Glass v Goeckel in Michigan.

It should be noted that the public trust doctrine applies ONLY to the four Great Lakes, not the thousands of inland lakes throughout the State of Michigan.  Generally speaking, lakeshore owners on inland lakes have a legal right to use the surface waters immediately adjacent to the property and the littoral land includes or abuts a lake.  Beachwalkers on inland lakes are subject to civil and criminal liability for trespass unless they have the owner’s permission.  For further details regarding lakeshore rights, property owners should talk to a knowledgeable lawyer.

If you have further questions about property rights or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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