Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 1 of 22

ATTORNEYS FOR 

APPELLANTS/CROSS-APPELLEES

Michael V. Knight

Barnes & Thornburg LLP

South Bend, Indiana

Mark L. Phillips

Newby, Lewis, Kaminski & Jones, LLP

LaPorte, Indiana

ATTORNEYS FOR AMICUS CURIAE SAVE 

OUR SHORELINE

David L. Powers

Smith, Martin, Powers, & Knier, PC

Bay City, Michigan

Keith A. Schofner

Lambert Leser

Bay City, Michigan

ATTORNEYS FOR AMICI CURIAE RAY 

CAHNMAN, ET AL.

Mark Miller

Pacific Legal Foundation

Palm Beach Gardens, Florida

Paul Edgar Harold

ATTORNEYS FOR APPELLEES

Gregory F. Zoeller

Attorney General of Indiana

Andrea E. Rahman

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE/CROSSAPPELLANT, ALLIANCE FOR THE 

GREAT LAKES AND SAVE THE 

DUNES

Jeffrey B. Hyman

Conservation Law Center

Bloomington, Indiana

ATTORNEYS FOR 

APPELLEES/CROSS-APPELLANTS 

LONG BEACH COMMUNITY 

ALLIANCE, ET AL.

Kurt R. Earnst

Braje, Nelson & Janes, LLP

Michigan City, Indiana

Patricia F. Sharkey

Environmental Law Counsel, PC

Chicago, Illinois
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 2 of 22

LaDue, Curran & Kuehn, LLC

South Bend, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Don H. Gunderson and Bobbie 

J. Gunderson, Co-Trustees of the 

Don H. Gunderson Living Trust 

Dated November 14, 2006,

Appellants/Cross-Appellees/Plaintiffs,

v.

State of Indiana, Indiana 

Department of Natural 

Resources,

Appellees/Defendants,

Alliance for the Great Lakes and 

Save the Dunes,

Appellee/Cross-Appellant/

Intervenor-Defendant,

Long Beach Community 

Alliance, Patrick Cannon, John 

Wall, Doria Lemay, Michael 

Salmon, and Thomas King,

Appellees/Cross-Appellants/

Intervenor-Defendants.

December 7, 2016

Court of Appeals Case No.

46A03-1508-PL-1116

Appeal from the LaPorte Superior 

Court

The Honorable Richard R. 

Stalbrink, Jr., Judge

Trial Court Cause No.

46D02-1404-PL-606

May, Judge.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 3 of 22

[1] “The shores of the Great Lakes may look serene, but they are a battleground. 

Members of the public enjoy using the shores for fishing, boating, birding, or 

simply strolling along and taking in the scenic vistas.” Kenneth K. Kilbert, The 

Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1, 2 (2010). 

“Repeatedly, however, owners of land bordering the Great Lakes (i.e., littoral 

owners), armed with deeds indicating they own the shore to the water’s edge or 

even lower, have tried to stop members of the public from using their property 

above the water’s edge.” Id. (internal footnotes omitted). Today we are called 

on to decide one such case. 

[2] Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H. 

Gunderson Living Trust (collectively, “Gunderson”), sought a declaratory 

judgment that their Lake Michigan property extends to the water’s edge, 

wherever the water’s edge is at any given moment. The State of Indiana and 

the Indiana Department of Natural Resources (“DNR”) (collectively, “State”), 

Alliance for the Great Lakes and Save the Dunes (“Alliance-Dunes”), and Long 

Beach Community Alliance (“LBCA”),

1 argued the State holds in trust for the 

public all land up to the ordinary high water mark (“OHWM”), regardless 

whether that land is covered by water. 

[3] The trial court granted summary judgment for the State and the Intervenors. 

We affirm in part and reverse in part.

 

1 We will refer to Alliance-Dunes and LBCA collectively as “the Intervenors.”
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 4 of 22

Facts and Procedural History2

[4] Gunderson owns three lots in Long Beach, Indiana (“Gunderson Property”). 

The trial court found, “The Gunderson’s deed, the plat to which the deed refers, 

and the survey of the plats reference no northern dimension other than that the 

lots are within Section 15.” (Appellants’ App. at 26.) The deed3 for the 

property incorporates by reference a 1914 plat map of Long Beach, which 

shows the Gunderson Property is located in Section 15 of the township. The 

Gunderson Property is shown on the plat as a series of rectangular boxes with a 

northern boundary. A 1984 survey identifies the northern boundary of the 

Gunderson Property as “lake edge.” (Id. at 127.) A survey from 1829 indicates 

an irregular property line on the northern border of Section 15, beyond which is 

labeled, “Lake Michigan.” (Id. at 585-7.)

[5] On April 4, 2014, Gunderson brought a motion for a declaratory judgment and 

to quiet title against the State, claiming he owns all land to the water’s edge and 

the public has no rights to any land not covered by water, as that land is his.4

 

On June 2, 2014, Alliance-Dunes filed a motion to intervene, which was 

 

2 We heard oral argument at the Indiana Statehouse on September 8, 2016. We commend counsel on the 

quality of their oral advocacy.

3 The legal description provided in the deed indicates the Gunderson Property encompasses “Lot 240, 242, 

and 244,” (App. at 110), which correspond to the location of Section 15 on the 1914 plat map. 

4 Gunderson filed an amended complaint on April 7, 2014.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 5 of 22

granted. On July 1, 2014, LBCA filed a motion to intervene; that motion was 

granted on October 20, 2014.

[6] On October 31, 2014, Gunderson moved for summary judgment. 

Subsequently, the State filed a cross-motion, as did the Intervenors (collectively 

“Defendants”). On April 22, 2015, the trial court held a hearing on all motions. 

On July 24, 2015, the trial court denied Gunderson’s summary judgment 

motion and granted the cross-motions filed by the Defendants.

5

 It found and 

concluded:

Therefore, as to ownership, this Court finds that the Gundersons 

own legal title, jus privatum, in their lots to the northern boundary 

of Section 15. Further, this Court finds that the State holds jus 

publicum, in public trust, the land below the OHWM, as defined 

by 312 Ind. Admin. Code 1-1-26(2). Moreover this Court finds 

that the Gundersons cannot unduly impair the protected rights 

and uses of the public when the titles to the land overlap. 

(Id. at 28.)

[7] Gunderson filed his notice of appeal on August 10, 2015 (“Gunderson 

Appeal”). On August 11, 2015, Alliance-Dunes filed a combined motion for 

clarification and to correct error. On August 13, 2015, LBCA also filed a 

motion to correct error. On August 20, 2015, the State filed its responses to the 

Intervenors’ respective motions. On October 15, 2015, the trial court scheduled 

 

5 The trial court issued an Amended Order on August 3, 2015, as “the first two lines of Paragraph 46 were 

inadvertently cut from page 15 during printing.” (App. at 34.)
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 6 of 22

a hearing on the Intervenors’ motions for December 18, 2015. On October 23, 

2015, this court granted a joint motion for temporary stay of appellate 

proceedings due to the pending motions from the Intervenors. 

[8] On November 9, 2015, Alliance-Dunes filed “Combined Motions to Take 

Judicial Notice of Facts, to Supplement the Record, and for Leave to Amend 

Alliance-Dunes’ Motion for Clarification and Motion to Correct Error.” 

(“Judicial Notice Motion”) (Alliance-Dunes App. at 25.) On November 23, 

2015, the trial court issued an order granting Alliance-Dunes Judicial Notice 

Motion “unless an objection is filed within 10 days from the date of this Order.” 

(Id. at 90.) On November 30, 2015, Gunderson filed an objection, and on 

December 7, 2015, the State filed its objection to the Alliance-Dunes Judicial 

Notice Motion. The trial court held a hearing on all pending matters on 

December 18, 2015, and denied all pending motions on December 21, 2015. 

Alliance-Dunes appealed the trial court’s denial of its Judicial Notice Motion 

and we consolidated that appeal and the Gunderson Appeal into the current 

case.

Discussion and Decision

[9] When reviewing summary judgment, we stand in the shoes of the trial court 

and apply the same standards in deciding whether to affirm the ruling. Allen 

Gray Ltd. P’ship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015). 

Thus, on appeal, we must determine whether there is a genuine issue of 

material fact and whether the moving party is entitled to judgment as a matter 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 7 of 22

of law. Id. That standard requires us to construe all factual inferences in favor 

of the nonmoving party, and to resolve all doubts as to the existence of an issue 

of material fact against the moving party. Id. 

[10] A ruling on a motion for summary judgment comes before this court clothed 

with a presumption of validity. Id. Accordingly, the party appealing a 

summary judgment bears the burden of persuading us that the trial court’s 

ruling was improper. Id. Nevertheless, we carefully review a decision on 

summary judgment to ensure that a party was not improperly denied its day in 

court. Id. Where, as here, the trial court makes findings and conclusions in 

support of its entry of summary judgment, we are not bound by such findings 

and conclusions, but they aid our review by providing reasons for the decision. 

Id. We will affirm a summary judgment on any theory or basis found in the 

record. Id.

Public Trust Rights

[11] Under English law, all navigable waters and the land beneath them were held in 

trust by the sovereign for the benefit of the public. Murphy v. Dep’t of Nat. Res., 

837 F. Supp. 1217, 1219 (S.D. Fla. 1993), aff’d, 56 F.3d 1389 (11th Cir. 1995). 

This arrangement has become known as the public trust doctrine, id., and was 

adopted by the United States Supreme Court, such that “shores” were public 

trust land: 

For it was expressly enjoined upon [the Duke of York], as a duty 

in the government he was about to establish, to make it, as near 

as might be, agreeable, in their new circumstances, to the laws 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 8 of 22

and statutes of England; and how could this be done, if in the 

charter itself, this high prerogative trust was severed from the 

regal authority? If the shores, and rivers and bays and arms of the 

sea, and the land under them, instead of being held as a public 

trust for the benefit of the whole community, to be freely used by 

all for navigation and fishery, as well for shell-fish as floating 

fish, had been converted by the charter itself into private 

property, to be parcelled out and sold by the duke, for his own 

individual emolument? There is nothing, we think, in the terms 

of the letters-patent, nor in the purposes for which it was granted, 

that would justify this construction.

Martin v. Waddell’s Lessee, 41 U.S. 367, 413 (1842). This remained true after 

independence: 

This right of eminent domain over the shores and the soils under 

the navigable waters, for all municipal purposes, belongs 

exclusively to the states within their respective territorial 

jurisdictions, and they, and they only, have the constitutional 

power to exercise it. To give to the United States the right to 

transfer to a citizen the title to the shores and the soils under the 

navigable waters, would be placing in their hands a weapon 

which might be wielded greatly to the injury of state sovereignty, 

and deprive the states of the power to exercise a numerous and 

important class of police powers. 

Pollard v. Hagan, 44 U.S. 212, 230 (1845) (emphasis added). Thus, States that 

joined the Union after the original thirteen acquired from the federal 

government rights in the lands within the state, “including the lands between 

the high and low tide marks and the water that periodically covers it.” Murphy, 

837 F. Supp. at 1219.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 9 of 22

[12] When Indiana became a state in 1816 it acquired ownership of the beds of its 

navigable waters. State ex rel. Ind. Dep’t of Conservation v. Kivett, 228 Ind. 623, 

629-30, 95 N.E.2d 145, 148 (1950). That title, sometimes called “equal 

footing”6 title, is “different in character from that which the state holds in lands 

intended for sale . . . . It is a title held in trust for the people of the state.” 

Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 452 (1892). After equal 

footing lands are passed at statehood, the land is governed by state, and not 

federal, law. See PPL Montana, LLC v. Montana, __ U.S. __, 132 S. Ct. 1215, 

1235 (2012) (states retain residual power to determine the scope of the public 

trust over waters within their borders, while federal law determines riverbed 

title under the equal-footing doctrine). A private landowner cannot impair the 

protected rights of the public. Lake Sand Co. et al. v. State ex rel. Attorney General, 

68 Ind. App. 439, 444, 120 N.E. 714, 716 (1918).

[13] In 1995, our legislature adopted Ind. Code ch. 14-26-2, which provides the 

Indiana public has a vested right in the preservation, protection, and enjoyment 

of all the public freshwater lakes of Indiana and the use of the public freshwater 

lakes for recreational purposes. Ind. Code § 14-26-2-5. It provides the State has 

full power and control of all of the public freshwater lakes in Indiana, and holds 

 

6 In 1842, the United States Supreme Court declared that, for the thirteen original states, the people of each 

state, based on principles of sovereignty, “hold the absolute right to all their navigable waters and the soils 

under them,” subject only to rights surrendered and powers granted by the Constitution to the Federal 

Government. PPL Montana, LLC v. Montana, __ U.S. __, 132 S. Ct. 1215, 1227 (2012). In a series of 19thcentury cases, the Court “determined that the same principle applied to States later admitted to the Union, 

because the States are coequal sovereigns under the Constitution.” Id. 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 10 of 22

and controls all public freshwater lakes in trust for the use of all of the citizens 

of Indiana for recreational purposes. Id. A person owning land bordering a 

public freshwater lake does not have the exclusive right to the use of the waters 

of the lake or any part of the lake. Id. But that section expressly excludes Lake 

Michigan: “This chapter does not apply to . . . Lake Michigan[, l]and under the 

waters of Lake Michigan[, and a]ny part of the land in Indiana that borders on 

Lake Michigan.”7

 Id. 

[14] Gunderson characterizes that chapter as a codification of the public trust 

doctrine and argues there is no public trust doctrine applicable to his land 

because “Indiana expressly excluded Lake Michigan from its public trust 

doctrine.” (Amended Br. of Appellants at 28.) Therefore, Gunderson contends

he “paid for his property and as such has the right to exclude others.” (Id. at 

30.) 

[15] The trial court found:

Indiana did not surrender the public trust encumbering Lake 

Michigan’s shores by partially codifying the public trust doctrine 

as it applied to the smaller freshwater lakes in Indiana. That [ ] 

land below the OHWM has not been excluded from Indiana’s 

common law public trust doctrine. Furthermore, this Court 

 

7 Gunderson says “Three times crowed the General Assembly; there is no recreational right to any part of the

land abutting Lake Michigan.” (Amended Br. of Appellants at 28.) Therefore, “Gunderson paid for his 

property and as such has the right to exclude others.” (Id. at 30.) That is not what the General Assembly 

“crowed.” It said only that Ind. Code ch. 14-26-2 does not apply to Lake Michigan. The trial court correctly 

determined the exclusion of Lake Michigan does not mean there are no public trust rights. Rather, it reflects 

there was no intent to change the common law with regard to Lake Michigan. See, e.g., Shively v. Bowlby, 152 

U.S. 1, 41 (1894) (when there was no administratively-set OHWM, there existed a common-law OHWM). 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 11 of 22

notes that Indiana has the least amount of shoreline along Lake 

Michigan. Moreover, this Court finds the idea that Indiana, with 

such a limited amount of shoreline, would restrict and in effect 

deny its citizens’ [sic] access to such an amazing resource. [sic] 

Granting near exclusive rights to a vast portion of the shoreline 

to a select few homeowners, to be a far stretch of reason and 

common sense. [sic]

(Appellants’ App. at 20.) 

[16] We decline to hold the exclusion of Lake Michigan from that statute represents 

the legislature’s statement there are no public trust rights in the shore of Lake 

Michigan. Gunderson relies primarily on Bainbridge v. Sherlock, 29 Ind. 364, 367

(1868), in which our Indiana Supreme Court held:

The Ohio [R]iver is a great navigable highway between states and 

the public have all the rights that by law appertain to public rivers 

as against the riparian owner. But there is not “shore,” in the 

legal sense of that term; that is, a margin between high and low 

tide -- the title to which is common. The banks belong to the 

riparian owner, and he owns an absolute fee down to low water 

mark.

However, it seems, based on the language specifically applying the holding 

regarding the riparian rights to the “navigable highway between states . . . 

[where there] is not ‘shore,’” id., the holding in Bainbridge applied to rivers, not 

lakes as we have here. Compare Kivett, 95 N.E.2d 145 (regarding the use of 

resources protected by public trust on a river), and Lake Sand, 120 N.E.2d 714 

(regarding the use of resources protected by public trust on a lake); and compare
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 12 of 22

Ind. Code art. 14-29 (regulating navigable rivers, streams, and waterways) with 

Ind. Code art. 14-26 (regulating lakes and reservoirs).

[17] We do not believe the exclusion of Lake Michigan from Indiana Code ch. 14-

26-2 demonstrates legislative intent that there be no public trust rights to the 

shore. We presume the legislature is aware of the common law and intends to 

make no change therein beyond its declaration either by express terms or 

unmistakable implication. Clark v. Clark, 971 N.E.2d 58, 62 (Ind. 2012). There 

was no such express declaration here, nor do we characterize the statutory 

language as leaving an “unmistakable implication.” Thus, the rights to the 

shore of Lake Michigan are controlled by the common law public trust 

doctrine.

Scope of Public Trust Rights

[18] As we have concluded public trust rights exist, we must now consider their 

scope. Regarding the nature of the public trust rights relative to Lake Michigan, 

the trial court found:

The Gundersons have provided no evidence and no persuasive 

argument for finding that the recreational activities, such as 

swimming and walking on the beach, should not also be 

permissible public uses protected by the public trust doctrine. 

This Court notes that several other states, including some of our 

sister Great-Lake States, have recognized the public trust’s 

protection for recreational enjoyment of the beach.

(Appellants’ App. at 20.) 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 13 of 22

[19] The states retain residual power to determine the scope of the public trust over 

waters within their borders. PPL Montana, __ U.S. at __, 132 S. Ct. at 1235. 

Some Great Lakes states have determined the public trust rights include 

recreational uses such as swimming, walking along the shore, and preservation 

of scenic beauty. E.g., People ex rel. Scott v. Chicago Park Dist., 360 N.E.2d 773, 

780 (Ill. 1976) (public trust doctrine, like all common law principles, should not 

be considered fixed or static, but should be molded and extended to meet 

changing conditions and needs of the public it was created to benefit); R.W. 

Docks & Slips v. State, 628 N.W.2d 781, 787-88 (Wis. 2001) (public trust doctrine 

originally existed to protect commercial navigation, but has been expansively 

interpreted to safeguard the public’s use of navigable waters for purely 

recreational purposes such as boating, swimming, fishing, hunting, recreation, 

and to preserve scenic beauty), cert. denied sub nom. R.W. Docks & Slips v. 

Wisconsin, 534 U.S. 1041 (2001)). The scope of public trust rights in Indiana is 

an issue of first impression.

8

[20] Granting lakeshore owners the right to exclude the public from land between 

the low and high water marks would be inconsistent with the public trust 

doctrine because, under that doctrine, a state holds the title to the beds of 

navigable lakes and streams below the natural high-water mark for the use and 

 

8 In United States v. Carstens, 982 F. Supp. 2d 874, 878 (N.D. Ind. 2013), the district court said: “The land 

between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by 

the State of Indiana.” It cited Ill. Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892), and Lake Sand, 68 Ind.

App. 439, 120 N.E. 714 (1918), but neither of those decisions directly supports the Carstens language about 

the “ordinary high water mark.” 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 14 of 22

benefit of the whole people. In re Sanders Beach, 147 P.3d 75, 79 (Idaho 2006), 

reh’g denied. In Sanders Beach, lakefront property owners sought a ruling that 

their littoral rights gave them authority to exclude the public from that portion 

of the abutting lakebed not covered by water. The Court determined that 

creating the littoral right they wanted “would give them the exclusive right to 

occupy this portion of state land, even though the state holds such land in trust” 

for the public:

Such littoral right would be contrary to the central substantive 

thought in public trust litigation, which we have stated is as 

follows: [w]hen a state holds a resource which is available for the 

free use of the general public, a court will look with considerable 

skepticism upon any governmental conduct which is calculated 

either to relocate that resource to more restricted uses or to 

subject public uses to the self-interest of private parties. 

Id. at 86 (quoting J. Sax, The Public Trust Doctrine in Natural Resource Law: 

Effective Judicial Intervention, 68 Mich. L. Rev. 473, 490 (1970)). The Court 

therefore declined to create the littoral right requested by the lakeshore owners. 

“Their littoral rights do not include the right to exclude the public from that 

portion of the exposed lake bed lying below the OHWM.” Id. 

[21] Gunderson argues that land is either submerged or it is not, and asserts he owns 

whatever is not under water at any given moment.9

 We find persuasive the 

 

9 Gunderson also relies on Bainbridge as limiting the public right in navigable waters, asserting the public right 

is “for passage, navigation, and commerce . . . . No more, no less.” (Amended Br. of Appellants at 26.) 

However, as noted supra, Bainbridge is inapplicable here, as its holding governs riparian rights along a river for 

which there was no “shore,” not lake-based riparian rights. Compare Kivett, 95 N.E.2d 145 (regarding the use 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 15 of 22

Michigan Supreme Court’s analysis in Glass v. Goeckel, 703 N.W.2d 58 (Mich. 

2005), reh’g denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174 (2006). It 

addressed a dispute similar to that before us – i.e., whether the public trust land 

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

applies only to land that is actually under water at any particular moment. 

[22] The Glass Court addressed “the established distinction” in public trust 

jurisprudence between public rights (jus publicum) and private title (jus privatum). 

Id. at 69. It noted:

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). 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. 

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.

Id. at 69-70. See also State v. Korrer, 148 N.W. 617, 623 (Minn. 1914) (even if a 

riparian owner holds title to the ordinary low water mark, his title is absolute 

 

of resources protected by public trust on a river) with Lake Sand, 120 N.E.2d 714 (regarding the use of 

resources protected by public trust on a lake); and compare Ind. Code art. 14-29 (regulating navigable rivers, 

streams, and waterways) with Ind. Code art. 14-26 (regulating lakes and reservoirs).
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 16 of 22

only to the ordinary high water mark; the intervening shore space between high 

and low water mark remains subject to the rights of the public); Shaffer v. 

Baylor’s Lake Ass’n, Inc., 141 A.2d 583, 585 (Pa. 1958) (subjecting private title 

held to low water mark to public rights up to high water mark); Bess v. Humboldt 

Co., 5 Cal. Rptr. 2d 399, 401 (Cal. Ct. App. 1992) (noting that it is “well 

settled” that riparian title to the low water mark remained subject to the public 

trust between high and low water marks).

[23] Establishing property rights based on the OHWM attempts to account for the 

fact that water levels in the Great Lakes fluctuate. Glass, 703 N.W.2d at 71. 

This fluctuation results in temporary exposure of land that may then remain 

exposed above where water currently lies. Id. 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. Id. The Glass Court noted “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[.]” Id. at 73. 

[24] As to the scope of the public trust rights, the Glass Court held 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.” Id. 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. Id. Yet its status as trustee does not 

permit the state to secure to itself property rights held by littoral owners. Id.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 17 of 22

[25] The Glass Court determined

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. 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. We can protect traditional 

public rights under our public trust doctrine only by 

simultaneously safeguarding activities inherent in the exercise of 

those rights. 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. 

Id. at 73-75 (citations omitted). The Glass Court concluded 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. 

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. 

Id. at 75 (citation omitted).10 

 

10 We acknowledge some other Great Lakes courts have been more protective of private property rights. See 

e.g., State ex rel. Merrill v. Ohio Dep’t of Nat. Res., 955 N.E.2d 935 (Ohio 2011), where Lake Erie property 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 18 of 22

[26] Following the holding and reasoning in Glass, we conclude Gunderson’s private 

rights are able to co-exist with those rights of the public trust. Therefore, the 

land at issue below the OHWM is open to limited public use, such as gaining 

access to the public waterway or walking along the beach, as described in Glass.

Location of the OHWM

[27] The trial court determined the State holds in public trust “the land below the 

OHWM, as defined by 312 Ind. Admin. Code § 1-1-26(2) [sic],” and that 

Gunderson “cannot unduly impair the protected rights and uses of the public 

when the titles to the land overlap.” (Appellants’ App. at 28.) Gunderson 

argues at length that the State cannot, by regulation, take property or determine 

boundaries because its statutory authority does not permit it. The State argues 

it has authority to determine the scope of the public trust. 

[28] In Shively v. Bowlby, 152 U.S. 1, 41 (1894), the United States Supreme Court 

decided when there was no administratively-set OHWM, there existed a 

common-law OHWM. In 1995, the DNR enacted 312 IAC 1-1-26(2), which 

reads: “‘Ordinary high watermark’ means . . . the shore of Lake Michigan at 

 

owners sought a declaration that they held title to the land between the ordinary high-water mark and the 

actual legal boundary of their properties as defined by their deeds, and that the public trust did not include 

nonsubmerged lands. The Ohio Supreme Court determined the territory of Lake Erie held in trust by the 

state for the people extends to the “natural shoreline,” which is “the line at which the water usually stands 

when free from disturbing causes.” Id. at 950. “This court has a history of protecting property rights, and 

our decision today continues that long-standing precedent.” Id. at 949. However, Merrill is distinguishable 

because the holding relied upon long-established Ohio precedent and Ohio state law which specifically stated 

the location of the property line in relation to Lake Erie, neither of which we have in this case.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 19 of 22

five hundred eighty-one and five-tenths (581.5) feet I.G.L.D.,11 1985 (five 

hundred eighty-two and two hundred fifty-two thousandths (582.252) feet 

N.G.V.D.,12 1929).” (footnotes added) 

[29] Alliance-Dunes argues the DNR is without authority to set the OHWM as it 

did in 312 IAC 1-1-26(2). Regulations set forth by administrative boards “must 

be reasonable and reasonably adapted to carry out the purpose or object for 

which these boards were created. Potts v. Review Bd. of Indiana Emp’t Sec. Div., 

438 N.E.2d 1012, 1015 (Ind. Ct. App. 1982). “If the rules are in conflict with 

the state’s organic law . . . they are invalid.” Id. We hold 312 IAC 1-1-26(2) is 

in conflict with well-established case law regarding the state’s ability to regulate 

the shores of Lake Michigan.

[30] In Lake Sand we held: “The state in its sovereign capacity is without power to 

convey or curtail the right of its people in the bed of Lake Michigan.” 120 N.E. 

at 716. As the OHWM prior to 1995 was the common law OHWM as held in 

Shively, 152 U.S. at 41, the DNR’s staking the OHWM at the measurements set 

forth in 312 IAC 1-1-26(2) most certainly conveyed or curtailed the rights of the 

people of Indiana in Lake Michigan. Therefore, that portion of the Indiana 

 

11 “International Great Lakes Datum (IGLD) is a reference system by which Great Lakes water levels are 

measured.” Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. at 58 n.43. 

12 NGVD stands for National Geodetic Vertical Datum. http://www.acronymfinder.com/NationalGeodetic-Vertical-Datum-(NGVD).html (last visited July 27, 2016). 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 20 of 22

Administrative Code is invalid, and the OHWM remains that defined by

common-law.13

Gunderson’s Northern Boundary

[31] Gunderson asserts the deed establishes Lake Michigan as the northern 

boundary of the Gunderson Property. The trial court found the Gunderson 

deed,14 the plat to which it refers, and a survey

reference no northern dimension other than that the lots are 

within Section 15. As a matter of interpretation, and common 

sense, if a lot is carved from within a section, the boundaries of 

that lot can be no greater than those of the section from which it 

was carved. Therefore, this Court finds that the Gundersons’ 

 

13 The factors used to define OHWM under the common law are also found in 312 IAC 1-1-26(1). Compare

Glass, 703 N.W.2d at 72:

[The ordinary high water mark is] 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 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. 

(quoting Diana Shooting Club v. Hustin, 156 Wis. 261, 272, 14 N.W. 816 (1914)) with 312 IAC 1-1-26(1):

“Ordinary high watermark” means the following:

(1) The line on the shore of a waterway established by the fluctuations of water and indicated by 

physical characteristics. Examples of these physical characteristics include the following:

(A) A clear and natural line impressed on the bank.

(B) Shelving.

(C) Changes in character of the soil.

(D) The destruction of terrestrial vegetation.

(E) The presence of litter or debris.

14 The deed Gunderson designated is the deed from Don and Bobbie Gunderson to the “Don H. Gunderson 

Living Trust,” (App. at 109), not the deed originally conveying the land to the Gundersons. 
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 21 of 22

deed conveyed no title north of Section 15’s northern boundary. 

However, this Court notes that it is without evidence showing 

where the northern boundary of Section 15 currently lies in 

relation to the Gundersons’ lots and the OHWM.

(Id. at 26.) We acknowledge evidence that notes an 1829 survey says the lots 

run “to Lake Michigan and set post.15” (Appellants’ App. at 589) (footnote 

added). A 1984 survey indicates the northern boundary of the lots in the plat is 

“LAKE EDGE.” (Id. at 127.) While we agree with the logic, we diverge 

slightly from the trial court’s finding based on the evidence in the record before 

us.

[32] The designated evidence indicates the boundary of Section 15 is Lake 

Michigan. We held above, based on Glass, Gunderson’s property rights overlap 

with those of the public trust. Therefore, the northern boundary of 

Gunderson’s property is the ordinary low water mark, subject to the public’s 

rights under the public trust doctrine up to the OHWM. See Glass, 703 N.E.2d 

at 69-70 (regarding overlap of jus privatum and jus publicum); see also Korrer, 

148 N.E. at 623 (intervening shore space between ordinary low and ordinary 

high water marks are property of land owner, subject to the public’s rights 

thereto); Shaffer, 141 A.2d at 585 (private title subject to public rights between 

ordinary low and ordinary high water marks); and Bess, 5 Cal. Rptr. 2d at 401 

 

15 The meaning of “set post” is unclear from the record but, based on the context, it would seem the term 

indicates the demarcation of the property line. Based on the 1984 survey, no physical post exists.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 22 of 22

(private title subject to public rights between ordinary low and ordinary high 

water marks).

Conclusion

[33] We affirm the trial court’s findings regarding the nature and scope of the public 

trust as it relates to Lake Michigan. However, we reverse the trial court’s 

determination of the OHWM’s location.

[34] Gunderson owns legal title up to the northern boundary of Section 15, and the 

State holds the land below the OHWM as defined at common law. The 

designated evidence consistently indicates the northern boundary of Section 15 

is Lake Michigan. Therefore, we reverse the trial court’s finding northern 

boundary of Section 15 is unknown, and hold the northern boundary of Section 

15 is the ordinary low water mark, subject to the public’s rights as part of the 

public trust.

[35] Affirmed in part and reversed in part.

Baker, J., and Brown, J., concur.