High Water Mark, from page 1
sunbathing and other recreational purposes. The Goeckels, however, continued to object to Glass’s use of the beach in front of their property. The trial court found for Glass, ruling that she has the “right to use the shore of Lake Huron lying below and lakewards of the natural ordinary high water mark for pedestrian travel.”1 The Goeckels appealed the decision of the trial court. Public Access to Lake Huron The Goeckels argued that, as riparian owners, they have the exclusive right to use the land up to the water’s edge and can therefore prevent Glass and other members of the general public from walking above the water’s edge. The Michigan Court of Appeals agreed, holding that riparian owners have exclusive use of the dry land to the water’s edge, subject only to the public trust doctrine. Under the public trust doctrine, the state of Michigan holds title to the waters and the submerged lands of the Great Lakes within its borders in trust for the public. According to the court, the dividing line between the public trust doctrine and riparian rights along Lake Huron is the water’s edge. 2 Therefore, the Goeckels and other riparian owners have the exclusive right to use the dry land to the
water’s edge. It is important to note, however, that the court held that this right of exclusive use does not correspond with actual ownership of the land. The land upon which Glass sought to walk had not always been dry land. The disputed strip emerged as the waters of Lake Huron receded. The general rule is that “the title of the riparian owner follows the shoreline under what has been graphically called a ‘moveable freehold.”3 The reasoning of the court is not entirely clear, but it appears Michigan deviates from this general rule with regard to land formed by the recession of water. While riparian owners gain the right to use the land that emerges as the water level of Lake Huron falls, the actual title to the previously submerged land remains with the state.4 Riparian owners have the right to use the now-dry land and exclude others, but they do not own the land and they will lose the right of exclusive use when the waters rise. This is an interesting interpretation of the public trust doctrine. In a majority of states, the public trust doctrine requires the state to hold navigable waters, the submerged lands underneath, and adjacent lands below the ordinary high water mark in trust for the public. Private individuals cannot own land below the high water mark or
Photo of the Lake Huron shoreline courtesy of NOAA Photographer is Carol Y. Swinehart, Michigan Sea Grant Extension
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Volume 3, No. 2 The SandBar