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Michigan Supreme Court Lansing, Michigan

Opinion
JOAN M. GLASS, Plaintiff-Appellant, v

Chief Justice:

Justices:

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

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. component To resolve this issue we must consider two (1) how the public trust doctrine

questions:

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

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


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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. to insist, as do Justices Markman and

Yet we decline 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). 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

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Richard

and on

Kathleen their

Goeckel private argues

maintain land when the

that she

plaintiff walks the trust

trespasses shoreline.

Plaintiff

that

public

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. of American law has long recognized that large bodies water, such as the oceans, are natural In

navigable

resources and thoroughfares that belong to the public.

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.

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


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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

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


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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 we of the ordinary the judgment high of water the mark. of

Accordingly,

reverse

Court

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. 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

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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 sought walking title. to enjoin the During the proceedings from below, plaintiff with her

defendants shoreline.

interfering

along

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. matter of law, plaintiff Defendants argued that, as a not walk on defendants'

could

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. (2004). 262 Mich App 29; 683 NW2d 719

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 . . . ." from navigational Id. at 42. issues, the The Court held that, apart state holds title to

previously submerged land, subject to the exclusive use of the riparian owner up to the water's edge. Thus, under the Court of Appeals Id. at 43. neither

analysis,

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. (2004). STANDARD OF REVIEW We review de novo the grant or denial of a motion for summary disposition. 597 NW2d 817 (1999). Maiden v Rozwood, 461 Mich 109, 118; In a motion under MCR 2.116(C)(8), 471 Mich 904

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"[a]ll true

well-pleaded and construed

factual in a

allegations light most

are

accepted to

as the

favorable

nonmovant." v Auto Club "a

Maiden, supra at 119. Ins Ass'n, for 435 Mich

As we stated in Nasser 33, 47; 457 NW2d under 637 MCR

(1990),

motion

summary

disposition

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. Emperor This obligation traces back to the Roman whose Institutes provided, "Now the

Justinian,

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,

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