[Cite as State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-

Ohio-4612.] 

THE STATE EX REL. MERRILL, TRUSTEE, ET AL., APPELLEES;

TAFT, APPELLEE AND CROSS-APPELLANT, v. OHIO DEPARTMENT OF NATURAL 

RESOURCES ET AL., APPELLANTS AND CROSS-APPELLEES. 

[Cite as State ex rel. Merrill v. Ohio Dept. of Natural Resources, 

130 Ohio St.3d 30, 2011-Ohio-4612.] 

Land held in public trust abutting private property—The territory of Lake Erie 

held in trust by the state of Ohio for the people of the state extends to the 

natural shoreline, which is the line at which the water usually stands when 

free from disturbing causes.

(No. 2009-1806—Submitted February 1, 2011—Decided September 14, 2011.) 

APPEAL AND CROSS-APPEAL from the Court of Appeals for Lake County, 

Nos. 2008-L-007 and 2008-L-008, 2009-Ohio-4256. 

__________________ 

SYLLABUS OF THE COURT

1. A party to an action has standing to appeal from a judgment when it is an 

independent party to an action and has been aggrieved by the final order 

from which it seeks to appeal. 

2. When an organization demonstrates that it has a claim or defense that shares a 

common question of law or fact with the main action and that intervention 

will not unduly delay or prejudice the adjudication of the rights of the 

original parties, it meets the requirements of Civ.R. 24(B)(2) for 

permissive intervention. 

3. The territory of Lake Erie held in trust by the state of Ohio for the people of 

the state extends to the natural shoreline, which is the line at which the 

water usually stands when free from disturbing causes. (Sloan v. Biemiller

(1878), 34 Ohio St. 492, and State v. Cleveland & Pittsburgh RR. Co.
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(1916), 94 Ohio St. 61, 113 N.E. 677, approved and followed; R.C. 

1506.10 and 1506.11, construed.) 

__________________ 

 O’DONNELL, J.

{¶ 1} We are asked to resolve three issues on appeal and cross-appeal: 

first, whether the state of Ohio, as distinct from the Ohio Department of Natural 

Resources (“ODNR”), has standing to appeal from the decisions of the trial and 

appellate courts in this case; second, whether the court of appeals properly held 

that the trial court did not abuse its discretion in permitting the National Wildlife 

Federation and the Ohio Environmental Council to intervene in this action; and 

third, whether the appellate court identified the proper boundary between property 

abutting Lake Erie owned by private individuals and the territory of Lake Erie 

held in trust by the state for all Ohioans. 

{¶ 2} Regarding the standing issue, we conclude that despite ODNR’s 

adoption of a conciliatory lis pendens posture agreeing not to enforce its 

controversial lease policy pending the court’s determination of the boundary issue 

and its failure to appeal the judgment of the trial court, it remains a party to this 

case; the state of Ohio, a separately named party, had standing to appeal the trial 

court judgment entered against it affecting the territory of Lake Erie. 

{¶ 3} On the intervention question, we agree with the conclusion of the 

court of appeals that the National Wildlife Federation and the Ohio 

Environmental Council are proper parties to this action and that the trial court did 

not abuse its discretion in permitting them to intervene. 

{¶ 4} Finally, regarding the shoreline issue, Ohio law with respect to the 

territory of Lake Erie held in trust by the state and the rights of littoral-property 

owners has been settled for more than a century, and we see no reason to change 

the existing law. Based on opinions of this court from as early as 1878 and the 

Ohio General Assembly’s statement of public policy enunciated in the Fleming 
January Term, 2011 

3 

Act in 1917, we conclude that the territory of Lake Erie held in trust by the state 

of Ohio for the people of Ohio extends to the “natural shoreline,” which is the line 

at which the water usually stands when free from disturbing causes. 

Factual and Procedural History 

{¶ 5} The pleadings in this case allege that ODNR instituted a policy 

prohibiting littoral-property owners from exercising property rights over all land 

lakeward of the ordinary high-water mark, despite the inclusion of that area of 

land in their respective deeds, unless the owner entered into a lease agreement 

with ODNR and paid a fee for its use. 

{¶ 6} In May 2004, Robert Merrill, as trustee for the Diane N. Merrill 

Living Trust, the Ohio Lakefront Group, Inc., a nonprofit corporation representing 

lakefront-property owners, and several other individually named lakefrontproperty owners (collectively referred to as “the Merrill plaintiffs”) filed a 

complaint for declaratory judgment and mandamus in the Lake County Common 

Pleas Court against ODNR, its director, and the state of Ohio, seeking 

declarations that owners of property abutting Lake Erie hold 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 does not 

include nonsubmerged lands; alternatively, they sought a writ of mandamus to 

compel ODNR to commence appropriation proceedings or to compel the state of 

Ohio to compensate them for its alleged taking of their property. They 

subsequently filed an amended complaint containing the same counts. The 

individually named lakefront-property owners also filed attachments to the first 

amended complaint, containing copies of their deeds and identifying the 

property’s lakeward boundary, although those descriptions varied from deed to 

deed, i.e., “a distance of 374.0 feet to the shore of Lake Erie,” “to a point in the 

low water mark of Lake Erie,” “145 feet to a point in the water’s edge of Lake 
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Erie,” “to Lake Erie,” “a distance of 293.04 feet to the shore of Lake Erie,” and 

“to the shore of Lake Erie.” 

{¶ 7} Separately, Homer S. Taft, L. Scot Duncan, and Darla J. Duncan 

(“the Taft plaintiffs”) filed the next consecutively numbered case in the Lake 

County Common Pleas Court, claiming ownership of their land to the ordinary 

low-water mark of Lake Erie. The trial court consolidated that action with the 

suit filed by the Merrill plaintiffs. 

{¶ 8} ODNR and the state counterclaimed, seeking a declaration that the 

state of Ohio holds the lands and waters of Lake Erie to the ordinary high-water 

mark, as set by the United States Army Corps of Engineers in 1985, in trust for 

the people of Ohio, subject only to the paramount authority retained by the United 

States for the purposes of commerce, navigation, national defense, and 

international affairs. 

{¶ 9} In June 2006, pursuant to a joint stipulation of all parties in Merrill, 

the trial court certified a class action as to the declaratory-judgment count of the 

Merrill complaint, with the class consisting of owners of Ohio property bordering 

Lake Erie. The court stayed the mandamus claims pending resolution of the 

declaratory-judgment claim. 

{¶ 10} Subsequently, the National Wildlife Federation and the Ohio 

Environmental Council, nonprofit organizations committed to conserving natural 

resources and whose members make recreational use of the shores and waters of 

Lake Erie, sought to intervene as defendants and counterclaimants, asserting that 

the state holds the lands and waters of Lake Erie in trust for the public to the 

ordinary high-water mark. The trial court permitted them to intervene. 

{¶ 11} ODNR and the state then moved for summary judgment on the 

declaratory-judgment claim, urging, inter alia, that the public-trust territory of 

Lake Erie extends to the ordinary high-water mark, as identified by the United 

States Army Corps of Engineers in 1985. The National Wildlife Federation and 
January Term, 2011 

5 

the Ohio Environmental Council filed a joint motion for summary judgment, 

concurring in and adopting the bases for summary judgment advanced by ODNR 

and the state. 

{¶ 12} The Merrill and Taft plaintiffs each filed cross-motions for 

summary judgment. In response to the cross-motions for summary judgment, 

ODNR advised the court that it welcomed resolution of the controversy and 

posited that it “must and should honor the apparently valid real property deeds of 

the plaintiff-relator lakefront owners unless a court determines that the deeds are 

limited by or subject to the public’s interests in those lands or are otherwise 

defective or unenforceable.” ODNR further explained that “acting with the 

consent and direction of” the governor, it “will discharge its statutory duties and 

will adopt or enforce administrative rules and regulatory policies with the 

assumption that the lakefront owners’ deeds are presumptively valid.” It also 

represented to the court that while it “will require owners who wish to build 

structures along the shores of Lake Erie that could impact coastal lands to obtain 

permits before commencing any such construction[,] * * * it will no longer 

require property owners to lease land contained within their presumptively valid 

deeds.” 

{¶ 13} After review, the trial court granted partial summary judgment to 

the Merrill and Taft plaintiffs and denied summary judgment to ODNR, the state, 

the National Wildlife Federation, and the Ohio Environmental Council, 

concluding that the public trust neither extended to the ordinary high-water mark 

nor terminated at the low-water mark; rather, the trial court determined that the 

boundary of the public-trust territory is “a moveable boundary consisting of the 

water’s edge, which means the most landward place where the lake water actually 

touches the land at any given time.” The trial court opinion also reformed the 

legal descriptions in deeds held by littoral-property owners containing legal 
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descriptions that extended the property into the lake to extend the property only to 

the water’s edge. 

{¶ 14} The trial court further concluded: “Defendants-Respondents and 

Intervening Defendants have failed, as a matter of law, to show that the landward

boundary of the public trust territory in Ohio along the Lake Erie shore is the 

Ordinary High Water Mark of 573.4 IGLD (1985), and Plaintiffs-Relators and 

Intervening Plaintiffs have failed to show that the lakeward boundary of the 

public trust territory in Ohio along the Lake Erie shore is the Ordinary Low Water 

Mark. The court declares that the law of Ohio is that the proper definition of the 

boundary line for the public trust territory of Lake Erie is the water's edge, 

wherever that moveable boundary may be at any given time, and that the location 

of this moveable boundary is a determination that should be made on a case-bycase basis.” (Emphasis sic.) 

{¶ 15} The trial court order included language from Civ.R. 54(B), “finding 

that there is no just reason for delay,” thereby creating a final, appealable order. 

{¶ 16} The state of Ohio, the National Wildlife Federation, and the Ohio 

Environmental Council appealed to the Eleventh District Court of Appeals, and 

the Merrill plaintiffs and Taft, individually, cross-appealed, all challenging the 

trial court’s determination that the public-trust territory of Lake Erie is a 

moveable boundary consistent with the water’s edge. Additionally, Taft argued 

that the court erred in allowing intervention. Notably, ODNR neither filed a 

notice of appeal to the court of appeals nor joined in the state’s notice of appeal. 

Its failure to separately appeal prompted the court of appeals, during oral 

argument, to question whether the state of Ohio had appellate standing before that 

court. 

{¶ 17} The appellate court concluded that the state of Ohio lacked 

appellate standing without ODNR as an appellant, and it affirmed the trial court’s 
January Term, 2011 

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holdings regarding the intervening parties and the boundary of the public trust, 

but vacated the trial court’s reformation of the littoral owners’ deeds. 

{¶ 18} In holding that the state of Ohio lacked standing, the court of 

appeals cited R.C. 109.02 for the proposition that the Ohio attorney general could 

“only act at the behest of the governor, or the General Assembly,” and in this 

case, the “attorney general represented the state due to the activities of ODNR, 

which department is under the authority of the governor,” who no longer 

supported the position taken by ODNR. State ex rel. Merrill v. Ohio Dept. of 

Natural Resources, 11th Dist. Nos. 2008-L-007 and 2008-L-008, 2009-Ohio4256, ¶ 44. Thus, because the governor “ordered ODNR to cease those activities 

that made it a party to the action,” the appellate court found “no authority for the 

attorney general to prosecute this matter on his own behalf” and concluded that 

the state “no longer has standing in this matter.” Id. Thus, the court of appeals 

ordered the state’s assignments of error and briefs stricken. 

{¶ 19} Regarding intervention, the appellate court held that the trial court 

had correctly permitted the National Wildlife Federation and the Ohio 

Environmental Council to intervene because they met the requirements for 

intervention as of right pursuant to Civ.R. 24(A) in that the relief sought by the 

Merrill and Taft plaintiffs “would extinguish the rights” of their members to 

“make recreational use of the shore along Lake Erie below the ordinary high 

water mark.” Id. at ¶ 114. The court also concluded that the intervening parties 

met the requirements for permissive intervention pursuant to Civ.R. 24(B) 

because they demonstrated that their defense and counterclaim factually and 

legally related to the claims asserted by the Merrill and Taft plaintiffs. 

{¶ 20} The court of appeals also affirmed the trial court’s determination 

regarding the boundary of the public trust, holding that the boundary is the 

shoreline, which it defined as “the actual water’s edge.” Id. at ¶ 127. 
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{¶ 21} In its opinion, the court of appeals erroneously stated that the 

question regarding the boundary of the public trust is a matter of first impression 

in Ohio. Id. at ¶ 1. It is not. That question has been a matter of settled law in 

Ohio for more than a century—since 1878—when this court first announced the 

law in a case that called for Lake Erie as the boundary in a deed of conveyance, 

and when it subsequently clarified that decision in 1916, and when the legislature, 

in response to our request, thereafter codified Ohio law regarding the public trust 

in Lake Erie by enacting the Fleming Act in 1917. 

{¶ 22} Despite this body of law, the court of appeals concluded: “Based 

upon its decisions, the Supreme Court has identified that the waters, and the lands 

under the waters of Lake Erie, when submerged under such waters, are subject to 

the public trust, while the littoral owner holds title to the natural shoreline. As we 

have identified, the shoreline is the line of contact with a body of water with the 

land between the high and low water mark. Therefore, the shoreline, that is, the 

actual water’s edge, is the line of demarcation between the waters of Lake Erie 

and the land when submerged thereunder held in trust by the state of Ohio and 

those natural or filled in lands privately held by littoral owners.” (Emphasis sic.) 

Id. at ¶ 127. 

{¶ 23} ODNR, its director, and the state jointly appealed to this court, as 

did the National Wildlife Federation and the Ohio Environmental Council; 

individually, Taft cross-appealed. We accepted jurisdiction over these appeals, 

which collectively assert six propositions of law and raise the following three 

issues: whether the state of Ohio has appellate standing, whether the National 

Wildlife Federation and the Ohio Environmental Council are proper intervening 

parties, and whether the territory of the public trust extends to the ordinary highwater mark, as claimed by the state and the environmental groups, or the lowwater mark, as claimed by Taft. 

 
January Term, 2011 

9 

Standing to Appeal 

{¶ 24} The state presents a twofold argument to support its position that it 

had standing to appeal the decision of the trial court, which declared that the 

boundary of the public trust is the water’s edge, and the decision of the court of 

appeals, which affirmed the trial court’s declaration. First, the state claims that it 

had standing because it is an independent party to this action, and the judgment 

entered against it is adverse to its interests. Second, it maintains that the Ohio 

attorney general is empowered by the common law and statutes to represent the 

state when it is a named party. 

{¶ 25} The Merrill and Taft plaintiffs collectively argue that the state 

lacked standing to appeal because R.C. 1506.10 designates ODNR as the agency 

responsible for the enforcement of the state’s public-trust rights in Lake Erie, and 

here, ODNR complied with a gubernatorial directive to cease its active 

participation in the matter and did not appeal the trial court’s judgment to the 

court of appeals. Thus, they assert, ODNR’s waiver of its appellate rights 

foreclosed the state from appealing. 

{¶ 26} Separately, Taft argues that the court of appeals correctly 

determined that the state lacked standing because R.C. 109.02 precludes the 

attorney general from representing the state in the court of appeals absent 

authorization from the governor or the General Assembly, and the governor’s 

directive to ODNR negates any claim by the attorney general of authorization to 

represent the state in this matter. Taft further contends that the General Assembly 

enacted R.C. 109.02 in abrogation of the common law, and therefore, the attorney 

general lacks nonstatutory authority to act on behalf of the state. 

{¶ 27} “Standing is a preliminary inquiry that must be made before a court 

may consider the merits of a legal claim.” Kincaid v. Erie Ins. Co., 128 Ohio 

St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9, citing Ohio Pyro, Inc. v. Dept. 

of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, and 
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Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 

N.E.2d 330, ¶ 22. Standing is a question of law, so we review the issue de novo. 

Kincaid at ¶ 9. 

{¶ 28} To have appellate standing, a party must be “aggrieved by the final 

order appealed from.” Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. 

(1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, syllabus; see also In re 

Guardianship of Santrucek 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, 

¶ 5; Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 26, 591 

N.E.2d 1203. Cf. Forney v. Apfel (1998), 524 U.S. 266, 271, 118 S.Ct. 1984, 141 

L.Ed.2d 269, quoting United States v. Jose (1996), 519 U.S. 54, 56, 117 S.Ct. 

463, 136 L.Ed.2d 364 (“a party is ‘aggrieved’ [by] and ordinarily can appeal 

[from] a decision ‘granting in part and denying in part the remedy requested’ ”). 

{¶ 29} In this case, both the Merrill and Taft plaintiffs sued both the state 

of Ohio and ODNR, seeking a declaration regarding the interest of the state as 

trustee over the public trust. In addition, count three of Merrill’s first amended 

complaint sought a writ of mandamus to compel the state to pay compensation as 

a result of ODNR’s alleged taking. Thus, the pleadings verify that the state 

became an independent party to the underlying action. It is also an aggrieved 

party; the trial court’s determination regarding the boundary of the public trust, 

which the court of appeals affirmed, is adverse to the state’s position, and the trial 

court’s ruling denied the relief sought by the state in its counterclaim for 

declaratory judgment. Accordingly, we conclude that the state of Ohio had 

standing to appeal from the judgments of both the trial court and appellate court 

due to its status as an aggrieved party. 

{¶ 30} Nor does R.C. 1506.10 deprive the state of the ability to appeal in 

this case. That statute designates ODNR as “the state agency in all matters 

pertaining to the care, protection, and enforcement of the state's rights designated 

in this section.” It also provides that “[a]ny order of the director of [ODNR] in 
January Term, 2011 

11 

any matter pertaining to the care, protection, and enforcement of the state's rights 

in that territory is a rule or adjudication within the meaning of sections 119.01 to 

119.13 of the Revised Code.” Here, however, the state appealed from a decision 

entered in a declaratory-judgment action, and a matter that seeks a declaration of 

rights is different from one that pertains to “the care, protection, and enforcement” 

of those rights. We do not construe R.C. 1506.10 as prohibiting the state from 

litigating its interests in the public trust, including its right to appeal from a 

judgment that adversely affects those interests. 

{¶ 31} Similarly, the court of appeals erroneously determined that the 

attorney general lacked standing to appeal on behalf of the state. We recognize 

that pursuant to a gubernatorial directive, ODNR did not appeal the judgment of 

the trial court. As a separate party, however, the state did not abandon its 

independent right to appeal. By appealing from the trial court’s judgment, the 

state preserved its interest in protecting what it perceives to be the public trust. 

{¶ 32} Taft also maintains that the attorney general lacked standing to 

appeal because pursuant to R.C. 109.02, absent direction from the governor, the 

attorney general had no independent authority to act on behalf of the state. 

{¶ 33} In Ohio, the attorney general is a constitutional officer. Section 1, 

Article III, Ohio Constitution. The General Assembly has also recognized that the 

attorney general is the chief law officer “for the state and all its departments.” 

R.C. 109.02. That statute sets forth the attorney general’s statutory duties: “The 

attorney general shall appear for the state in the trial and argument of all civil and 

criminal causes in the supreme court in which the state is directly or indirectly 

interested. When required by the governor or the general assembly, the attorney 

general shall appear for the state in any court or tribunal in a cause in which the 

state is a party, or in which the state is directly interested. Upon the written 

request of the governor, the attorney general shall prosecute any person indicted 

for a crime.” 
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{¶ 34} The state and federal constitutions “were adopted with a 

recognition of established contemporaneous common law principles; and * * * 

they did not repudiate, but cherished, the established common law.” State v. Wing

(1902), 66 Ohio St. 407, 420, 64 N.E. 514. In deference to that principle, "the 

General Assembly will not be presumed to have intended to abrogate a settled 

rule of the common law unless the language used in a statute clearly imports such 

intention." State ex rel. Hunt v. Fronizer (1907), 77 Ohio St. 7, 16, 82 N.E. 518. 

{¶ 35} This court recently addressed the common-law powers of the 

attorney general in relation to R.C. 109.02 in State ex rel. Cordray v. Marshall, 

123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633. In rejecting an argument 

similar to Taft’s position herein, we concluded that nothing in R.C. Chapter 109 

abrogated the attorney general’s common-law power to commence a prohibition 

action that sought to compel a common pleas judge to vacate an entry issued in a 

criminal case. Id. at ¶ 18, 23. 

{¶ 36} Guided by that analysis, we reach the same result and hold that 

nothing in R.C. Chapter 109 appears to abrogate the attorney general’s commonlaw power to appeal on behalf of the state from an adverse judgment. Cf. 

Northeast Ohio Coalition for the Homeless & Serv. Emps. Internatl. Union, Local 

1199 v. Blackwell (C.A.6, 2006), 467 F.3d 999, 1008 (attorney general permitted 

to intervene on behalf of the state in an appeal of a judgment from which the 

secretary of state did not wish to pursue an appeal). Thus, Taft’s position is not 

well taken. 

{¶ 37} Accordingly, we hold that a party to an action has standing to 

appeal from a judgment when it is an independent party to an action and has been 

aggrieved by the final order from which it seeks to appeal. Hence, the state of 

Ohio has standing to appeal in this case, as it is an independent party against 

which an adverse judgment had been rendered. 

 
January Term, 2011 

13 

Intervention 

{¶ 38} The court of appeals concluded that the National Wildlife 

Federation and the Ohio Environmental Council could intervene either as of right 

or with permission. Merrill, 2009-Ohio-4256, ¶ 115, 118. On cross-appeal, Taft 

maintains that the appellate court abused its discretion in affirming the trial 

court’s decision to permit the National Wildlife Federation and the Ohio 

Environmental Council to intervene, contending that these organizations neither 

met the requirements of Civ.R. 24(A)(2) for intervention as of right, as they failed 

to demonstrate an interest relating to the property or transaction that is the subject 

of the action, nor met the requirements of Civ.R. 24(B) for permissive 

intervention, in that they failed to demonstrate that they had a claim or defense 

that shared a common question of law or fact with the main action. 

{¶ 39} In response, the National Wildlife Federation and the Ohio 

Environmental Council claim that they met the requirements for intervention as of 

right pursuant to Civ.R. 24(A)(2) because some of their members make 

recreational use of the land that is the subject matter of this action. In addition, 

some of their members are Ohioans and are thus beneficiaries of the public trust 

and have a legally protectable interest in public-trust lands. They further contend 

that the relief requested by the littoral owners would extinguish their members’ 

right to use the shore of Lake Erie for recreational purposes. 

{¶ 40} These organizations also maintain that they have demonstrated the 

existence of common questions of law or fact between their claimed interest in 

and right to use the shore and the underlying declaratory-judgment action 

sufficient to warrant permissive intervention pursuant to Civ.R. 24(B). 

{¶ 41} We construe Civ.R. 24 liberally to permit intervention. State ex 

rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 

182, 184, 685 N.E.2d 507; see also Rumpke Sanitary Landfill, Inc. v. State, 128 

Ohio St.3d 41, 2010-Ohio-6037, 941 N.E.2d 1161, ¶ 22, citing Ohio Dept. of 
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Adm. Servs., Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 

54 Ohio St.3d 48, 51, 562 N.E.2d 125. Whether intervention is granted as of right 

or by permission, the standard of review is whether the trial court abused its 

discretion in allowing intervention. See State ex rel. First New Shiloh Baptist 

Church v. Meagher (1998), 82 Ohio St.3d 501, 503, 696 N.E.2d 1058, fn.1; 

Rumpke, Inc., at ¶ 22. We acknowledge that State ex rel. First New Shiloh Baptist 

Church and Rumpke commented only on the standard of review for intervention 

as of right, but because there is no reason to apply a different standard of review 

to permissive intervention, we conclude that the same standard applies. Cf. Ohio 

Consumers' Counsel v. Pub. Util. Comm., 111 Ohio St.3d 384, 2006-Ohio-5853, 

856 N.E.2d 940, ¶ 17 (abuse-of-discretion standard is applied when reviewing 

permissive-intervention decisions made by the Public Utilities Commission of 

Ohio). 

{¶ 42} Regarding intervention as of right, Civ.R. 24(A)(2) provides that 

any applicant shall be allowed to intervene in a cause of action “when the 

applicant claims an interest relating to the property or transaction that is the 

subject of the action and the applicant is so situated that the disposition of the 

action may * * * impede the applicant's ability to protect that interest." Further, 

the applicant's interest must be one that is " ‘legally protectable,’ " State ex rel. 

Dispatch Printing Co. v. Columbus (2000), 90 Ohio St.3d 39, 40, 734 N.E.2d 797, 

quoting In re Schmidt (1986), 25 Ohio St.3d 331, 336, 25 OBR 386, 496 N.E.2d 

952, and must not be adequately protected by the existing parties. Civ.R. 

24(A)(2); State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 247, 594 

N.E.2d 616. 

{¶ 43} Regarding permissive intervention, Civ.R. 24(B)(2) provides that a 

trial court has discretion to permit an applicant to intervene “when [the] 

applicant’s claim or defense and the main action have a question of law or fact in 

common.” However, in exercising its discretion, the court “shall consider 
January Term, 2011 

15 

whether the intervention will unduly delay or prejudice the adjudication of the 

rights of the original parties.” Id. 

{¶ 44} The defense and counterclaim asserted by the National Wildlife 

Federation and the Ohio Environmental Council in this case relate both legally 

and factually to the claims asserted by the Merrill and Taft plaintiffs; thus, they 

have satisfied the “common question of law or fact” requirement of Civ.R. 

24(B)(2). Nor did allowing intervention unduly delay or prejudice the 

adjudication of the rights of the original parties. The court of appeals, therefore, 

did not abuse its discretion in determining that these organizations met the 

requirements for permissive intervention. Based on this conclusion, we need not 

analyze intervention as of right. 

{¶ 45} Accordingly, when an organization demonstrates that it has a claim 

or defense that shares a common question of law or fact with the main action and 

that intervention will not unduly delay or prejudice the adjudication of the rights 

of the original parties, it meets the requirements of Civ.R. 24(B)(2) for permissive 

intervention. Hence, the trial court did not abuse its discretion in permitting the 

National Wildlife Federation and the Ohio Environmental Council to intervene in 

this action. 

The Public Trust 

{¶ 46} The substantive issue for our resolution concerns the territory of 

the public trust, and the parties here disagree as to its boundary. The state, the 

National Wildlife Federation, and the Ohio Environmental Council all urge us to 

hold that the court of appeals erred in setting the landward boundary of the public 

trust at the water’s edge, arguing instead that the boundary is the ordinary highwater mark, which they claim that case law has construed to mean the natural 

shoreline, as well as “the line where the water usually stands when free from 

disturbing causes.” 
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{¶ 47} The Taft plaintiffs contend that the court of appeals erred by not 

defining the landward boundary of the public trust as the low-water mark, as 

modified by accretion, reliction, or erosion. 

{¶ 48} The Merrill plaintiffs, as appellees in the Supreme Court, assert 

that the boundary is the natural shoreline, which it claims is the line at which the 

water meets the shore wherever that may be at any given time, and they urge this 

court to affirm the judgment of the court of appeals. 

{¶ 49} More than 130 years ago, in Sloan v. Biemiller (1878), 34 Ohio St. 

492, we determined that when a real estate conveyance calls for Lake Erie as the 

boundary, the littoral owner’s property interest “extends to the line at which the 

water usually stands when free from disturbing causes.” Id. at paragraph four of 

the syllabus. In our analysis, we adopted the position taken by the Supreme Court 

of Illinois in Seaman v. Smith (1860), 24 Ill. 521, syllabus (“The line at which the 

water usually stands when free from disturbing causes, is the boundary of land in 

a conveyance calling for Lake Michigan as a line”). 

{¶ 50} Contrary to the position advanced by the state, although Sloan

quoted language from Seaman that referred to “the usual high-water mark,” which 

is synonymous with the ordinary high-water mark, neither Sloan nor Seaman

adopted that as the boundary or defined “the line at which the water usually stands 

when free from disturbing causes” to mean “the usual high-water mark.” As a 

subsequent case from the Supreme Court of Illinois explained, “[i]t is clear from 

the reasoning and conclusion in [Seaman], in the light of the judgment entered, 

that it was not the high-water mark that was taken as the true limit of the 

boundary line, but the line where the water usually stood when unaffected by 

storms or other disturbing causes.” Brundage v. Knox (1917), 279 Ill. 450, 471, 

117 N.E. 123. In addition to a storm, a drought may constitute a disturbing cause. 

See Appeal of York Haven Water & Power Co. (1905), 212 Pa. 622, 631, 62 A. 

97. 
January Term, 2011 

17 

{¶ 51} Subsequent to our decision in Sloan, in State v. Cleveland & 

Pittsburgh RR. Co. (1916), 94 Ohio St. 61, 79, 113 N.E. 677, we held that “the 

state holds the title to the subaqueous land [of Lake Erie within the boundaries of 

Ohio] as trustee for the protection of public rights.” In so holding, we followed 

our decision in Sloan, among other cases, and concluded that “[t]he littoral owner 

is entitled to access to navigable water on the front of which his land lies, and, 

subject to regulation and control by the federal and state governments, has, for 

purposes of navigation, the right to wharf out to navigable water.” Id. at 

paragraph five of the syllabus. In that case, we also urged the General Assembly 

to pass legislation that would “appropriately provide for the performance by the 

state of its duty as trustee for the purposes stated; that [would] determine and 

define what constitutes an interference with public rights, and that [would] 

likewise, in a spirit of justice and equity, provide for the protection and exercise 

of the rights of the shore owners.” Id. at 84. The General Assembly did so the 

following year when it enacted the Fleming Act. 

{¶ 52} The Fleming Act clarified the public policy of the state of Ohio 

with respect to the waters of Lake Erie, and its pronouncement conformed to 

decisions of this court dating from 1878 (Sloan). See G.C. 3699-a, Am.H.B. No. 

255, 107 Ohio Laws 587, recodified as R.C. 123.03, and now renumbered as R.C. 

1506.10. The current version of the statute is substantially similar to the original 

statute, and notably, both refer to the “natural shore line.” 

{¶ 53} At present, R.C. 1506.10 provides: “It is hereby declared that the 

waters of Lake Erie consisting of the territory within the boundaries of the state, 

extending from the southerly shore of Lake Erie to the international boundary line 

between the United States and Canada, together with the soil beneath and their 

contents, do now belong and have always, since the organization of the state of 

Ohio, belonged to the state as proprietor in trust for the people of the state, for the 

public uses to which they may be adapted, subject to the powers of the United 
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18

States government, to the public rights of navigation, water commerce, and 

fishery, and to the property rights of littoral owners, including the right to make 

reasonable use of the waters in front of or flowing past their lands. Any artificial 

encroachments by public or private littoral owners, which interfere with the free 

flow of commerce in navigable channels, whether in the form of wharves, piers, 

fills, or otherwise, beyond the natural shoreline of those waters, not expressly 

authorized by the general assembly, acting within its powers, or pursuant to 

section 1506.11 of the Revised Code, shall not be considered as having prejudiced 

the rights of the public in such domain. This section does not limit the right of the 

state to control, improve, or place aids to navigation in the other navigable waters 

of the state or the territory formerly covered thereby.” 

{¶ 54} Subsequently, in State ex rel. Squire v. Cleveland (1948), 150 Ohio 

St. 303, 337, 38 O.O. 161, 82 N.E.2d 709, we held that the Fleming Act did “not 

change the concept of the declaration of the state’s title as [declared in Cleveland 

& Pittsburgh RR. Co., 94 Ohio St. 61, 113 N.E. 677].” Instead, the act merely 

reiterated this court’s pronouncement in that case. Thus, we reaffirmed that 

“littoral owners of the upland have no title beyond the natural shore line; they 

have only the right of access and wharfing out to navigable waters.” Squire at 

337. From that holding, it follows that the converse is also true: if a littoral owner 

has no property rights lakeward of the natural shoreline, then the territory of the 

public trust does not extend landward beyond the natural shoreline. Hence, our 

review centers on the term “natural shoreline.” 

{¶ 55} Not long after our opinion in Squire, the General Assembly, in 

1955, enacted R.C. 123.031 in Am.Sub.S.B. No. 187, 126 Ohio Laws 137, 138, 

which has since been amended and renumbered as R.C. 1506.11. R.C. 123.031 

defined the “territory” of the public trust with reference to the “natural shore 

line.” The current version of the statute also includes that reference point, 

defining the term “territory” to mean “the waters and the lands presently 
January Term, 2011 

19 

underlying the waters of Lake Erie and the lands formerly underlying the waters 

of Lake Erie and now artificially filled, between the natural shoreline and the 

international boundary line with Canada.” R.C. 1506.11. 

{¶ 56} As noted previously, the General Assembly enacted the Fleming 

Act a year after this court urged it to pass legislation defining what constitutes an 

interference with public rights, and, therefore, we presume it did so mindful of the 

common law. We likewise presume that the General Assembly acted with full 

knowledge of the common law when it subsequently amended and added sections 

to the Fleming Act. Accordingly, we conclude that when the General Assembly 

defined the boundary of the “territory” of the public trust as the “natural 

shoreline,” it ascribed a meaning to that term consistent with the meaning set forth 

in this court’s decisions, including Sloan. 

{¶ 57} The boundary of the public trust does not, however, as the court of 

appeals concluded in affirming the trial court, change from moment to moment as 

the water rises and falls; rather, it is at the location where the water usually stands 

when free from disturbing causes. That is what we stated in Sloan, that is what 

has been understood for more than a century in Ohio, that is what the General 

Assembly meant by “natural shore line” when it enacted G.C. 3699-a in 1917, and 

that is what the law was when ODNR began to enforce the leasing policy, which 

it has since abandoned, having recognized the presumptive validity of the owners’ 

deeds. We see no reason to modify that law now. 

{¶ 58} Finally, the decision of the court of appeals erroneously intimated 

that a littoral-property owner might extend lakefront property with the addition of 

artificial fill. Merrill, 2009-Ohio-4256, ¶ 127. According to representations in 

their briefs, the parties generally agree that artificial fill cannot extend a littoral 

owner’s property, except where a littoral owner reclaims land stripped away 

because of sudden changes caused by avulsion. Additionally, the parties 

acknowledge that while accretion may increase the property of a littoral owner, 
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20

erosion may decrease it. Cf. State ex rel. Duffy v. Lakefront E. Fifty-Fifth St. 

Corp. (1940), 137 Ohio St. 8, 11, 17 O.O. 301, 27 N.E.2d 485; United States v. 

461.42 Acres of Land in Lucas Cty., Ohio (N.D.Ohio 1963), 222 F.Supp. 55, 56. 

Thus, we need not further comment on or clarify the effect of these processes on 

the property line because the parties generally have no dispute regarding them. 

{¶ 59} Accordingly, the territory of Lake Erie held in trust by the state of 

Ohio for the people of the state extends to the natural shoreline, which is the line 

at which the water usually stands when free from disturbing causes. 

{¶ 60} This court has a history of protecting property rights, and our 

decision today continues that long-standing precedent. In Cleveland & Pittsburgh 

RR. Co., 94 Ohio St. 61, 113 N.E. 677, syllabus, this court acknowledged that a 

littoral owner has a right to access and wharf out to navigable waters, and in 

Squire, we held that if the state or a municipality improperly destroys or impairs 

that property right, a littoral owner is entitled to compensation. 150 Ohio St. 303, 

38 O.O. 161, 82 N.E.2d 709, paragraph six of the syllabus. We recently reiterated 

our adherence to the principles that protect property rights in Norwood v. Horney, 

110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 37, where we 

explained that “the founders of our state expressly incorporated individual 

property rights into the Ohio Constitution in terms that reinforced the sacrosanct 

nature of the individual's ‘inalienable’ property rights, Section 1, Article I [Ohio 

Constitution], which are to be held forever ‘inviolate.’ Section 19, Article I.” 

(Footnote deleted.) Id. We further observed that Ohio has always considered 

property rights to be fundamental and concluded that “the bundle of venerable 

rights associated with property is strongly protected in the Ohio Constitution and 

must be trod upon lightly, no matter how great the weight of other forces.” Id. at 

¶ 38. 

{¶ 61} During the pendency of this litigation, ODNR announced that it 

“should honor the apparently valid real property deeds of the plaintiff-relator 
January Term, 2011 

21 

lakefront owners unless a court determine[d] that the deeds are limited by or 

subject to the public’s interests in those lands or are otherwise defective or 

unenforceable.” It further represented that it “will adopt or enforce administrative 

rules and regulatory policies with the assumption that the lakefront owners’ deeds 

[are] presumptively valid, and also, will no longer require property owners to 

lease land contained within their presumptively valid deeds.” 

{¶ 62} Our decision today reaffirms this court’s previous determination 

that the territory of the public trust in Lake Erie extends to the natural shoreline, 

which is the line at which the water usually stands when free from disturbing 

causes, which we first announced in 1878 and clarified in 1916, and which the 

General Assembly codified in 1917. Nothing contained in our opinion interferes 

with the presumptively valid deeds of the lakefront owners. Similarly, we 

reaffirm our statement in Squire that “[t]he littoral owners of the upland have no 

title beyond the natural shoreline; they have only the right of access and wharfing 

out to navigable waters.” Id. at 337. 

Conclusion

{¶ 63} The state of Ohio has standing to appeal from a judgment when it is 

an independent party to an action and has been aggrieved by the final order from 

which it seeks to appeal. In addition, the National Wildlife Federation and the 

Ohio Environmental Council are proper intervening parties to this lawsuit 

pursuant to Civ.R. 24. Further, we conclude that the territory of Lake Erie, held 

in trust by the state of Ohio for the people of the state, extends to the natural 

shoreline, which is the line at which the water usually stands when free from 

disturbing causes. 

{¶ 64} Consequently, we reverse the holding of the court of appeals that 

the state of Ohio lacked appellate standing, but we affirm its holding that upheld 

the decision to permit the National Wildlife Federation and the Ohio 

Environmental Council to intervene pursuant to Civ.R. 24(B)(2). 
SUPREME COURT OF OHIO

22

{¶ 65} Having clarified that the territory of Lake Erie is held in trust for 

the people of Ohio and extends to the natural shoreline, the line at which the water 

usually stands when free from disturbing causes, we affirm the appellate court to 

the extent that its judgment is consistent with this pronouncement, but we reverse 

its decision implying that artificial fill can alter the boundary of the public trust 

and its decision to affirm the trial court’s decision that the boundary of the public 

trust changes from moment to moment. This matter is remanded to the trial court 

for further proceedings on pending claims consistent with this opinion. 

Judgment accordingly. 

PFEIFER, LUNDBERG STRATTON, CUPP, and MCGEE BROWN, JJ., concur. 

O’CONNOR, C.J., and LANZINGER, J., concur in syllabus and judgment 

only. 

_________________ 

Homer S. Taft, pro se. 

 Calfee, Halter & Griswold, L.L.P., James F. Lang, and Fritz E. 

Berckmueller, for appellee class-action plaintiffs. 

 L. Scot Duncan, pro se, and for appellee Darla J. Duncan. 

 Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief 

Deputy Solicitor General, Stephen P. Carney, Deputy Solicitor, and Cynthia K. 

Frazzini, Assistant Attorney General, for appellant and cross-appellee state of 

Ohio. 

 Porter, Wright, Morris & Arthur, L.L.P., and Kathleen M. Trafford, 

Special Counsel for appellants and cross-appellees Ohio Department of Natural 

Resources and Director David Mustine. 

 Neil S. Kagan and Peter A. Precario, for appellants and cross-appellees 

National Wildlife Federation and Ohio Environmental Council. 

Chester, Willcox & Saxbe, L.L.P., Charles R. Saxbe, and Gerhardt A. 

Gosnell II, in support of the state’s first proposition of law on behalf of amici 
January Term, 2011 

23 

curiae former Ohio Attorneys General Betty Montgomery, Jim Petro, and Nancy 

Rogers. 

Michael A. Cox, Attorney General of Michigan, B. Eric Restuccia, 

Solicitor General, S. Peter Manning, Division Chief, and Robert P. Reichel and 

Darryl J. Paquette, Assistant Attorneys General; and Thomas W. Corbett Jr., 

Attorney General of Pennsylvania, in support of the state of Ohio on behalf of 

amici curiae the states of Michigan and Pennsylvania. 

The Law Office of Colin Bennett, L.L.C., and Colin William Bennett, in 

support of appellants and cross-appellees on behalf of amici curiae Joseph 

Sommer, Frances Buchholzer, Robert Teater, Ohio Bass Federation, Izaak Walton 

League of America, Ohio Chapter, and Northeast Ohio Watershed Council. 

R. S. Radford and Luke A. Wake; and Michael R. Gareau & Associates 

Co., L.P.A., and David M. Gareau, in support of appellees on behalf of amicus 

curiae, Pacific Legal Foundation. 

John P. O'Donnell, L.L.C., and John P. O'Donnell; and Baker & Hostetler, 

L.L.P., and John H. Burtch, urging affirmance on behalf of amici curiae Willow 

Beach Club, Brookwood-Cresthaven Beach Club, Inc., the Linwood Park 

Company, and the Ohio Association of Realtors. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Bruce G. Hearey, and 

LerVal M. Elva, in support of appellees on behalf of amicus curiae National 

Federation of Independent Business Small Business Legal Center. 

Michael E. Gilb, urging affirmance on behalf of amicus curiae Geauga 

Constitutional Council. 

Smith, Martin, Powers & Knier, P.C., and David L. Powers, in support of 

class-action plaintiffs on behalf of amicus curiae Save Our Shoreline. 

Chad A. Endsley, in support of class-action plaintiffs on behalf of amicus 

curiae Ohio Farm Bureau Federation. 
SUPREME COURT OF OHIO

24

Faulkner, Muskovitz & Phillips and Robert M. Phillips; and Patrick A. 

D'Angelo, urging affirmance on behalf of amici curiae Ohio Fraternal Order of 

Police Lodge 8 and Cleveland Police Patrolmen's Association. 

Montgomery Consulting Group, L.L.C., Betty Montgomery, opposing the 

state’s second proposition of law on behalf of amicus curiae Betty Montgomery. 

Shannon Lee Goessling, in support of class-action plaintiffs on behalf of 

amicus curiae Southeastern Legal Foundation, Inc. 

Maurice A. Thompson, urging affirmance on behalf of amicus curiae 1851 

Center for Constitutional Law. 

______________________