**_______________________________ Michigan Supreme Cour**  **t Lansing, Michiga**  **n Chief Justice: Justices:**  **Clifford W. Michael F. Cavanagh Taylor**  **Elizabeth A. Weaver Marilyn Kelly**  

# Opinion

**Maura D. Corrigan Robert P. Young, Jr.**  **Stephen J. Markman**

**FILED JULY 29, 2005**

**JOAN M. GLASS, Plaintiff-Appellant,**  **v 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. To resolve this issue we must consider two component questions: (1) how the public trust doctrine**  **affects private littoral 1**  **title; and (2) whether the public**

**1 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 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. Yet we decline to insist, as do Justices Markman and Young, that**  **submersion 2**  **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).** 

**2 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 Richard and Kathleen Goeckel maintain that plaintiff**  **trespasses on their private land when she walks the shoreline. Plaintiff argues that the public trust**  **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. American law has long recognized that large bodies**  **of navigable water, such as the oceans, are natural resources and thoroughfares that belong to the public. In**  **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.** 

**3 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 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** 

**4 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 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 of the ordinary high water mark. Accordingly, we reverse the judgment of the Court of**  **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.**

**5 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 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 title. During the proceedings below, plaintiff sought to enjoin defendants from interfering with her**  **walking along the shoreline. 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. Defendants argued that, as a**  **matter of law, plaintiff could not walk on defendants’ 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. 262**  **Mich App 29; 683 NW2d 719 (2004). 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 . . . .”** Id **. at 42. The Court held that, apart from navigational issues, the state holds title to**  **previously submerged land, subject to the exclusive use of the riparian owner up to the water’s edge.**  Id **. at 43. Thus, under the Court of Appeals analysis, neither**  **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. 471 Mich 904**  **(2004).**
**STANDARD OF REVIEW We review de novo the grant or denial of a motion for**  **summary disposition.** Maiden v Rozwood **, 461 Mich 109, 118; 597 NW2d 817 (1999). In a motion under MCR 2.116(C)(8),** 

**7 “[a]ll well-pleaded factual allegations are accepted as**  **true and construed in a light most favorable to the**

**nonmovant.”** Maiden, supra **at 119** . **As we stated in** Nasser v Auto Club Ins Ass’n, **435 Mich 33, 47; 457 NW2d 637 (1990), “a motion for summary disposition under MCR**  **2.116(C)(9) is tested solely by reference to the parties’ pleadings.”** 

**ANALYSIS**
**I. T**  **HE H**  **ISTORY OF THE P**  **UBLIC T**  **RUST D**  **OCTRINE 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. This obligation traces back to the Roman**  **Emperor Justinian, whose** Institutes **provided, “Now the 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, § 1, as translated in Thomas,**  The Institutes of Justinian, Text, Translation and Commentary **(Amsterdam: North-Holland Publishing Company, 1975), p 65; see also 9 Powell, Real**  **Property, § 65.03(2), p 65-39 n 2, quoting a different translation. The law of the sea, as developed through**  **English common law, incorporated the understanding that**

**8 both the title and the dominion of the sea, and**  **of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high**  **water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and**  **the lands which they cover, either at all times, or at least when the tide is in, are incapable of**  **ordinary and private occupation, cultivation and improvement; and their natural and primary uses**  **are public in their nature, for highways of navigation and commerce, domestic and foreign,**  **and for the purpose of fishing by all the King’s subjects. Therefore the title,**  jus privatum, **in such lands . . . belongs to the King as the**  **sovereign; and the dominion thereof,** jus publicum, **is vested in him as the representative of the nation and for the public benefit.**  **[** Shively v Bowlby **, 152 US 1, 11; 14 S Ct 548; 38 L Ed 331 (1894).]**  **This rule—that the sovereign must sedulously guard the public’s interest in the seas for navigation and fishing—**  **passed from English courts to the American colonies, to the Northwest Territory, and, ultimately, to Michigan. See**  Nedtweg **,** supra **at 17; accord** Phillips Petroleum Co v Mississippi **, 484 US 469, 473-474; 108 S Ct 791; 98 L Ed 2d 877 (1988), quoting**  Shively **,** supra **at 57. Michigan’s courts recognized that the principles that**  **guaranteed public rights in the seas apply with equal force to the Great Lakes. Thus, we have held that the common law**  **of the sea applies to the Great Lakes. See** Hilt v Weber **, 252 Mich 198, 213, 217; 233 NW 159 (1930);**  People v Silberwood **, 110 Mich 103, 108; 67 NW 1087 (1896). In particular, we have held that the public trust doctrine** 

**9 from the common law of the sea**  **applies to the Great Lakes. 6** 

**See** Nedtweg **,** supra **at 16-23;** Silberwood **,** supra **at 108;** State v Venice of America Land Co **, 160 Mich 680, 702; 125 NW 770 (1910); accord**  Illinois Central I **,** supra **at 437. Accordingly, under longstanding principles of**  **Michigan’s common law, the state, as sovereign, has an obligation to protect and preserve the waters of the Great**  **Lakes and the lands beneath them for the public. 7**  **The state serves, in effect, as the trustee of public rights in the**  **Great Lakes for fishing, hunting, and boating for commerce or pleasure. See**  Nedtweg **,** supra **at 16;** Venice of America Land Co **,** supra **at 702;** State v Lake St Clair Fishing &

**6 In this decision, we consider the public trust**  **doctrine only as it has applied to the Great Lakes and do not consider how it has applied to inland bodies of water.** 

**7 Although not implicated in this case, we note that**  **the Great Lakes and the lands beneath them remain subject to the federal navigational servitude. This servitude**  **preserves for the federal government control of all navigable waters “for the purpose of regulating and**  **improving navigation . . . .”** Gibson v United States **, 166 US 269, 271-272; 17 S Ct 578; 41 L Ed 996 (1897).**  **“[A]lthough the title to the shore and submerged soil is in the various States and individual owners under them, it is**  **always subject to the servitude in respect of navigation created in favor of the Federal government by the**  **Constitution.”** Id **. at 272. Apart from this servitude, the federal government has relinquished to the state any**  **remaining ownership rights in the Great Lakes. See 43 USC 1311.** 

**10**Shooting Club **, 127 Mich 580, 586; 87 NW 117 (1901);** Lincoln v Davis **, 53 Mich 375, 388; 19 NW 103 (1884). The state, as sovereign, cannot relinquish this duty**  **to preserve public rights in the Great Lakes and their natural resources. As we stated in**  Nedtweg, supra **at 17: The State may not, by grant, surrender such**  **public rights any more than it can abdicate the police power or other essential power of**  **government. But this does not mean that the State must, at all times, remain the proprietor**  **of, as well as the sovereign over, the soil underlying navigable waters. . . . The State of**  **Michigan has an undoubted right to make use of its proprietary ownership of the land in**  **question, [subject only to the paramount right of] the public [to] enjoy the benefit of the**  **trust. Therefore, although the state retains the authority to**  **convey lakefront property to private parties, it necessarily conveys such property**  subject to the public

trust **. At common law, our co**  **urts articulated a distinction between**  jus privatum **and** jus publicum **to capture this principle: the alienation of littoral property to private**  **parties leaves intact public rights in the lake and its submerged land. See**  Nedtweg **,** supra **at 20;** McMorran Milling Co v C H Little Co **, 201 Mich 301, 313; 167 NW 990 (1918);** Sterling v Jackson **, 69 Mich 488, 506-507; 37 NW 845 (1888) (Campbell, J., dissenting); see also**  Collins v Gerhardt **,**

**11 237 Mich 38, 55; 211 NW 115 (1926) (Fellows, J.,**  **concurring) (recognizing the “different character” of the rights held by the federal government as proprietor and as**  **trustee in an inland navigable stream);** Lorman v Benson **, 8 Mich 18, 27-28 (1860) (reciting the common-law distinction**  **between** jus publicum **and** jus privatum **in a case involving ownership of a riverbed).**  **8** Jus publicum **refers to public rights in navigable waters and the land covered by those waters;**  **9** jus privatum, **in contrast, refers to private property rights held subject**

**8 Indeed, other states also recognize the distinction**  **between private title and public rights. See, e.g.,** State v Longshore **, 141 Wash 2d 414, 427; 5 P3d 1256 (2000) (“The state’s ownership of tidelands and shorelands is comprised**  **of two distinct aspects--the** jus privatum **and the** jus publicum **.”);** Smith v State **, 153 AD2d 737, 739-740; 545 NYS2d 203 (1989) (“This doctrine grows out of the common**  **** **law concept of the** jus publicum, **the public right of navigation and fishery which supersedes a private right of**  jus privatum **.”) (citations omitted);** Bell v Town of Wells **, 557 A2d 168, 172-173 (Me, 1989) (stating that the different**  **types of title in the same shore property “remain in force" to this day); see also**  R W Docks & Slips v State **, 244 Wis 2d 497, 509-510; 628 NW2d 781 (2001) (applying the public**  **trust doctrine as adopted in its state constitution).**

**9 See Black’s Law Dictionary (7th ed), defining “**  jus publicum **” as “[t]he right, title, or dominion of public ownership; esp., the government’s right to own real**  **property in trust for the public benefit.”**

**12 to the public trust.**  **10 As the United States Supreme Court**  **explained in** Shively, supra **at 13: In England, from the time of Lord Hale, it**  **has been treated as settled that the title in the soil of the sea, or of arms of the sea, below the**  **ordinary high water mark, is in the King, except so far as an individual or a corporation has**  **acquired rights in it by express grant or by prescription or usage; and that this title,**  jus privatum **, whether in the King or in a subject, is held subject to the public right,**  jus publicum, **of navigation and fishing. [Citations omitted.] Thus, when a private party acquires littoral property from**  **the sovereign, it acquires only the** jus privatum **. Our courts have continued to recognize this distinction between**  **private title and public rights when they have applied the public trust doctrine. Public rights in certain types of**  **access to the waters and lands beneath them remain under the protection of the state. Under the public trust**  **doctrine, the sovereign never had the power to eliminate those rights, so any subsequent conveyances of littoral**  **property remain subject to those public rights. See** Nedtweg **,** supra **at 17; see also** People ex rel Director of Conservation v Broedell **, 365 Mich 201, 205; 112 NW2d 517 (1961). Consequently, littoral landowners have always** 

**10 See**  id., **defining “** jus privatum **” as “[t]he right, title, or dominion of private ownership.”** 

**13 taken title subject to the limitation of public rights**  **preserved under the public trust doctrine.**

**II. T**  **HE S**  **COPE OF THE P**  **UBLIC T**  **RUST D**  **OCTRINE Having established that the public trust doctrine is**  **alive and well in Michigan, we are required in this appeal to examine the**  scope **of the doctrine in Michigan: whether it extends up to the ordinary high water mark or whether,**  **as defendants argue, it applies only to land that is** actually **below the waters of the Great Lakes at any particular moment.** 

**A. T**  **HE G**  **REAT L**  **AKES S**  **UBMERGED L**  **ANDS A**  **CT Plaintiff argues that the Legislature defined the**  **scope of the public trust doctrine and established the outer limits of the doctrine in the GLSLA, thus supplanting**  **our case law. This act, according to plaintiff, manifests a legislative intent to claim all land lakeward of the**  **ordinary high water mark. Thus, plaintiff claims that the public trust extends to all land below the ordinary high**  **water mark as defined in the act, which states that “the ordinary high-water mark shall be at the following**  **elevations above sea level, international Great Lakes datum of 1955: Lake Superior, 601.5 feet; Lakes Michigan and**  **Huron, 579.8 feet; Lake St. Clair, 574.7 feet; and Lake Erie, 571.6 feet.” MCL 324.32501.** 

**14 We find plaintiff’s reliance on the GLSLA to be**  **misplaced. First, the act does not show a legislative intent to take title to all land lakeward of the ordinary**  **high water mark. MCL 324.32502 provides: The lands covered and affected by this part**  **are all of the unpate nted lake bottomlands and**  **unpatented made lands in the Great Lakes, including the bays and harbors of the Great**  **Lakes, belonging to the state or held in trust by it, including those lands that have been**  **artificially filled in. The waters covered and affected by this part are all of the waters of**  **the Great Lakes within the boundaries of the state. This part shall be construed so as to**  **preserve and protect the interests of the general public in the lands and waters described in this**  **section, to provide for the sale, lease, exchange, or other disposition of unpatented**  **lands and the private or public use of waters over patented and unpatented lands, and to permit**  **the filling in of patented submerged lands whenever it is determined by the department that**  **the private or public use of those lands and waters will not substantially affect the public**  **use of those lands and waters for hunting, fishing, swimming, pleasure boating, or**  **navigation or that the public trust in the state will not be impaired by those agreements for use,**  **sales, lease, or other disposition. The word “land” or “lands” as used in this part refers to**  **the aforesaid described unpatented lake bottomlands and unpatented made lands and**  **patented lands in the Great Lakes and the bays and harbors of the Great Lakes lying below and**  **lakeward of the natural ordinary high-water mark, but this part does not affect property rights**  **secured by virtue of a swamp land grant or rights acquired by accretions occurring through natural**  **means or reliction. For purp oses of this part,**  **the ordinary high-water mark shall be at the following elevations above sea level,**  **international Great Lakes datum of 1955: Lake Superior, 601.5 feet; Lakes Michigan and Huron,** 

**15 579.8**  **feet; Lake St. Clair, 574.7 feet; and Lake Erie, 571.6 feet.**  **The first sentence of this section states that the act applies only to “unpatented lake bottomlands” and**  **“unpatented made lands.” The fourth sentence, however, defines “land” or “lands” in the act as including not only**  **the bottomlands and made lands described in the first sentence, but also “patented lands in the Great Lakes and**  **the bays and harbors of the Great Lakes lying below and lakeward of the natural ordinary high-water mark . . . .”**  **11 Thus, the act covers both publicly owned land (the lake**  **bottomlands and made lands described in the first sentence) and privately owned land that was once owned by the state**  **(patented land below the ordinary high water mark). In other words, the act reiterates the state’s authority as**  **trustee of the inalienable** jus publicum **, which extends over both publicly and privately owned lands. The act makes no**  **claims to alter the delineation of the** jus privatum **of individual landowners.**  **Moreover, the act never purports to establish the boundaries of the public trust. Rather, the GLSLA**  **establishes the scope of the regulatory authority that the**

**11 A land patent is “[a]n instrument by which the**  **government conveys a grant of public land to a private person.” Black’s Law Dictionary (7th ed), p 1147.** 

**16 Legislature exercises, pursuant to the public trust**  **doctrine. Indeed, most sections of the act merely regulate the use of land below the ordinary high water mark.**  **12 The**  **only section of the act that purports to deal with property rights is § 32511, MCL 324.32511:**  **A riparian owner may apply to the department for a certificate suitable for recording**  **indicating the location of his or her lakeward boundary or indicating that the land involved has**  **accreted to his or her property as a result of natural accretions or placement of a lawful,**  **permanent structure. The application shall be accompanied by a fee of $200.00 and proof of**  **upland ownership.**

**12 Section 32503 provides that the Department of**  **Environmental Quality (DEQ) may enter into agreements regarding land use or alienate unpatented land to the**  **extent that doing so will not impair “the public trust in the waters . . . .” MCL 324.32503. Section 32504 governs**  **applications for deeds or leases to unpatented lands. MCL 324.32504. Section 32504a concerns the restoration and**  **maintenance of lighthouses. MCL 324.32504a. Section 32505 covers unpatented lake bottomlands and unpatented made**  **lands, again providing that such lands may be conveyed as long as the public trust “will not be impaired or**  **substantially injured.” MCL 324.32505. Sections 32506 through 32509 concern the valuation of unpatented lands and**  **various administrative matters (with § 32509 delegating authority to promulgate rules to the DEQ). MCL 324.32506**  **through 324.32509. Section 32510 establishes that a violation of the act is a misdemeanor punishable by**  **imprisonment or a fine. MCL 324.32510. Prohibited acts are defined in § 32512, MCL 324.32512, with § 32512a, MCL**  **324.32512a, specifically focusing on the removal of vegetation. Sections 32513 and 32514 return to**  **administrative matters, such as applications for permits and public notice of hearing. MCL 324.32513 and 324.32514.**  **Section 32515, MCL 324.32515, deals with enlargement of waterways, and § 32516, MCL 324.32516, returns again to the**  **removal of vegetation.**

**17 As shown previously**  , **a vital distinction in public trust law exists between private title (**  jus privatum **) and those public rights that limit that title (**  jus publicum **). Section 32511 only establishes a mechanism for landowners**  **to certify the boundary of their private property (** jus privatum **). The boundary of the public trust (** jus publicum **)—distinct from a boundary on private littoral title—remains a separate question, a question that the act**  **does not answer. Finally, plaintiff also relies on the following**  **language in § 32502 to argue that the GLSLA establishes the scope of the public trust doctrine:**  **This part [the GLSLA] shall be construed so as to preserve and protect the interests of the**  **general public in the lands and waters described in this section, to provide for the sale, lease,**  **exchange, or other disposition of unpatented lands and the private or public use of waters**  **over patented and unpatented lands, and to permit the filling in of patented submerged lands**  **whenever it is determined by the department that the private or public use of those lands and**  **waters will not substantially affect the public use of those lands and waters for hunting,**  **fishing, swimming, pleasure boating, or navigation or that the public trust in the state**  **will not be impaired by those agreements for use, sales, lease, or other disposition.**  **[13]**

**13 MCL 324.32502.** 

**18 Again, plaintiff’s reliance on this section is misplaced.**  **This sentence states that the act will be construed to protect the public interest. But that rule of construction**  **begs the question and cannot resolve whether the public has an interest in a littoral property in the first place. It**  **provides no reason to expand the public trust beyond the**  **limits established at common law. Thus, we must look elsewhere to determine the precise scope of the public**  **trust to which § 32502 refers. 14** 

**B. T**  **HE P**  **UBLIC T**  **RUST D**  **OCTRINE AS A**  **PPLIED TO THE G**  **REAT L**  **AKES Because the GLSLA does not define the scope of the**  **public trust doctrine in Michigan, we must turn again to our common law.**  **In applying the public trust doctrine to the oceans, courts have traditionally held that rights protected by**  **this doctrine extend from the waters themselves and the lands beneath them to a point on the shore called the** 

**14 The Legislature has recognized the public trust in**  **other contexts as well. As early as 1913, the Legislature had made provision for the disposition and preservation of**  **the public trust by entrusting trust lands and waters to the care of the predecessor of the DEQ. See 1913 PA 326,**  **1915 CL 606** et seq **.; see also** Nedtweg **,** supra **at 18, 20 (upholding the constitutionality of the act because any**  **authorized uses would yield to the “rights of the public”). In addition, the Legislature has conveyed small fractions**  **of the lakes and shoreline to private parties, though only after ensuring that such conveyances did not disturb the**  **public trust. See, e.g., 1954 PA 41; 1959 PA 31; 1959 PA 84.** 

**19 “ordinary high water mark.” See, e.g.,**  Shively, supra **at 13;**  Hardin v Jordan **, 140 US 371, 381; 11 S Ct 808; 35 L Ed**  **428 (1891); see also Hargrave’s Law Tracts, 11, 12, quoted in**  Shively, supra **at 12 (“‘The shore is that ground that is between the ordinary high water and low water mark [and**  **this ground belongs to the sovereign.]’”). The United States Supreme Court described this common-law concept of**  **the “high water mark” in** Borax Consolidated, Ltd v Los Angeles, **296 US 10, 22-23; 56 S Ct 23; 80 L Ed 9 (1935): The tideland extends to the high water mark.**  **This does not mean . . . a physical mark made upon the ground by the waters; it means the line**  **of high water as determined by the course of the tides. By the civil law, the shore extends as far**  **as the highest waves reach in winter. But by the common law, the shore “is confined to the flux**  **and reflux of the sea at ordinary tides.” It is the land “between ordinary high and low-water**  **mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is**  **named as a boundary, the line of ordinary high**   ** water mark is always intended where the common** **law prevails.” [Citations omitted.]**
**An “ordinary high water mark” therefore has an intuitive meaning when applied to tidal waters. Because of**  **lunar influence, ocean waves ebb and flow, thus reaching one point on the shore at low tide and reaching a more**  **landward point at high tide. The latter constitutes the high water mark on a tidal shore. The land between this**  **mark and the low water mark is submerged on a regular**

**20 basis, and so remains subject to the public trust doctrine**  **as “submerged land.” See, e.g.,** Illinois Central R Co v Chicago **, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622 (1900) (**  Illinois Central II **) (“But it is equally well settled that, in the absence of any local statute or usage, a grant**  **of lands by the State does not pass title to** submerged lands below [the] high water mark . . . ." **(Citations omitted; emphasis added.)**  **Michigan’s courts have adopted the ordinary high water mark as the landward boundary of the public trust. For**  **example, in an eminent domain case concerning property on a bay of Lake Michigan, we held that public rights end at the**  **ordinary high water mark.** Peterman v Dep’t of Natural

Resources **, 446 Mich 177, 198-199; 521 NW2d 499 (1994). 15**  **Thus, we awarded damages for destruction of the plaintiff’s property above the ordinary high water mark that resulted**  **from construction by the state (which occurred undisputedly in the water and within the public trust).**  Id **. Similarly, in an earlier case where the state asserted its control**  **under the public trust doctrine over a portion of littoral**

**15 This decision relied not simply on a “navigational**  **servitude” unique to that case, but rooted that “navigational servitude” in the public trust doctrine. See**  id **. at 194 n 22, citing** Collins **,** supra **at 45-46;** Venice of America Land Co **,** supra **;** Nedtweg **,** supra **at 16-17.**

**21 property, the Court also employed the high water mark as**  **the boundary of the public trust.** Venice of America Land

Co **,** supra **at 701-702. Our Court has previously suggested that Michigan law**  **leaves some ambiguity regarding whether the high or low water mark serves as the boundary of the public trust. See**  Broedell **,** supra **at 205-206. But the established distinction in public trust jurisprudence between public**  **rights (** jus publicum **) and private title (** jus privatum **) resolves this apparent ambiguity. 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 **). 16** 

**16 See**  La Porte v Menacon **, 220 Mich 684; 190 NW 655 (1922) (resolving a dispute between private landowners over**  **a deed term and bounding property at the low water mark);** Lake St Clair Fishing & Shooting Club **,** supra **at 587, 594 -**  **595 (setting the boundary of private title at the low water mark, while simultaneously endorsing**  Shively **and** Illinois Central I **and** II **);** Silberwood **,** supra **at 107 (reciting the holdings of other jurisdictions that a riparian owner’s fee**  **ends at the low water mark);** Lincoln **,** supra **at 384 (considering the boundaries of a grant made by the federal**  **government, rather than the boundary on what the government retained). In**  Collins **,** supra **at 60 (Fellows, J., concurring), our Court differed and used the**  high **water mark as the boundary to private title, but that case**  **involved property on an** inland stream **. In**  People v Warner **, 116 Mich 228, 239; 74 NW 705 (1898), the Court appeared to place a single boundary** 

**22 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.**  **17**

**between the riparian owner’s title and state control, stating that “[t]he adjoining propri**  **etor’s fee stops [at the high or low water mark], and there that of the State**  **begins.” Yet this boundary marks “the limit of private ownership.”**  Id **. This recalls the fact that the state might hold proprietary title or, separate from that title,**  **title as trustee to preserve the waters and lands beneath them on behalf of the public. The Court proceeded to**  **distinguish the state’s interest in the waters from the interest of the public in navigation, fish, and fowl.**  Id **. Thus, in context, the**  Warner **Court recognized a boundary on a riparian title, a title that remained subject to the**  **public trust. But the Court did not equate that boundary with the limit of the public trust.** 

**17 Although in the context of an inland stream case,**  **Justice Fellows noted the possibility of different boundaries on the public trust and riparian ownership in**  **his concurring opinion in** Collins **,** supra **at 52, quoting** Bickel v Polk **, 5 Del 325, 326 (Del Super, 1851): “The right of fishing in all public streams**  **where the tide ebbs and flows, is a common right, and the owner of land adjoining tide water,**  **though his title runs to low water mark, has not an exclusive right of**  **fishing; the public have the right to take fish below high water mark,**  **though upon soil belonging to the individual, and would not be trespassers in so doing; but if they**  **take the fish above high water mark, or carry them above high water mark and land them on**  **private property, this would be a trespass . . . . In all navigable rivers, where the tide ebbs**  **and flows, the people have of common right the privilege of fishing, and of navigation, between** 

**23 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. Nor does this recognition of the potential for overlap**  **represent a novel invention. While not binding on Michigan, other courts have similarly accommodated the same**  **practical challenge of fixing boundaries on shifting waters: they acknowledged the possibility of public rights**  **coextensive with private title. See, e.g.,** State v Korrer **, 127 Minn 60, 76; 148 NW 617**  **(1914) (Even if a riparian owner holds title to the ordinary low water mark, his title**  **is absolute only to the ordinary high water mark and the intervening shore space between high and low water mark**  **remains subject to the rights of the public.); see also** North Shore, Inc v Wakefield **, 530 NW2d 297, 301 (ND, 1995) (stating that neither the state nor the riparian owner held**  **absolute interests between high and low water mark);** Shaffer v Baylor’s Lake Ass’n, Inc **, 392 Pa 493, 496; 141 A2d 583 (1958) (subjecting private title held to low water**  **mark to public rights up to high water mark);** Flisrand v

**high and low water mark; though it be over private soil.”** 

**24**Madson **, 35 SD 457, 470-472; 152 NW 796 (1915) (same as**

Korrer **,** supra **);** Bess v Humboldt Co **, 3 Cal App 4th 1544, 1549; 5 Cal Rptr 2d 399 (1992**  **) (noting that it is “well established” that riparian title to the low water mark**  **remained subject to the public trust between high and low water marks).**  **In the instant case, the Court of Appeals relied extensively on**  Hilt **to set a boundary on where defendants’ property ended and where plaintiff’s rights (as a member of**  **the public) began. But our concern in** Hilt **was the boundary of a littoral landowner’s**  private **title, 18**  **rather than the boundary of the public trust. See**  Hilt **,** supra **at 206 (noting that the government conveyed title “to the**  **water’s edge”). Indeed, the** Hilt **Court endorsed the** Nedtweg **Court’s discussion of the public trust and decided the issue of the boundary on private littoral title within**  **the context of the public trust doctrine. See** id **. at 203, 224-225, 227.**  **19 Consequently, the Court of Appeals erred by** 

**18 Moreover, the particular issue in**  Hilt **was the boundary of private title on**  relicted/accreted **land, which is not at issue in the present case.** 

**19 The**  Hilt **Court concluded by s tating how the public**  **trust doctrine affected a riparian owner’s private title: While the upland owner, in a general way,**  **has full and exclusive use of the relicted land, his enjoyment of its use, especially his freedom** 

**25 granting defendants an exclusive right of use down to the**  **water’s edge, because littoral property remains subject to the public trust and because defendants hold title**  **according to the terms of their deed. Our public trust doctrine employs a term, “the**  **ordinary high water mark,” from the common law of the sea and applies it to our Great Lakes. While this term has an**  **obvious meaning when applied to** tidal **waters with regularly recurring high and low tides, its application to**  nontidal **waters like the Great Lakes is less apparent. See, e.g.,** Lincoln **,** supra **at 385 (noting, amidst a discussion of the extent of private littoral title, some imperfection in an**  **analogy between the Great Lakes and the oceans). In the Great Lakes, water levels change because of precipitation,**  **barometric pressure, and other forces that lack the regularity of lunar tides, which themselves exert a less**  **noticeable influence on the Great Lakes than on the oceans. Applying a term from the common law of the sea, despite the**  **obvious difference between the oceans and the Great Lakes,**

**to develop and sell it, is clouded by the lack of fee title, the necessity of resorting to equity**  **or to action for damages instead of ejectment to expel a squatter, and the overhanging threat of**  **the State’s claim of right to occupy it for State purposes. The State, except**  **for the paramount trust purposes, could make no use of the land**  **. . . . [** Id **. at 227.]**

**26 has led to some apparent discontinuity in the terminology**  **employed in our case law. Notwithstanding some prior imprecision in its use, a term such as “ordinary high water**  **mark” attempts to encapsulate the fact that water levels in the Great Lakes fluctuate. This fluctuation results in**  **temporary exposure of land that may then remain exposed above where water currently lies. 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. See**  Nedtweg **,** supra **at 37 (setting apart from the public trust that land which is**  **permanently exposed by the “recession of water” and so “rendered suitable for human occupation”). Thus, the**  **ordinary high water mark still has meaning as applied to the Great Lakes and marks the boundary of land, even if not**  **instantaneously submerged, included within the public trust. Our sister state, Wisconsin, defines the ordinary**  **high water mark as 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** 

**27 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. [**  Diana Shooting Club v Husting **, 156 Wis 261, 272; 145 NW 816 (1914), (citation omitted).]**  **Although** Diana Shooting Club **involved a river, Wisconsin has applied this definition not only to inland waters, but**  **also to the Great Lakes. See** R W Docks & Slips **,** supra **at 508-510;**  Trudeau **,** supra **at 102. 20**  **This definition has long served a state with which we share a border and that also**  **has an extensive Great Lakes shoreline. Although we do not import our sister state’s public**  **trust doctrine where this Court has already spoken, we are persuaded to adopt this definition to clarify a term long**  **used but little defined in our jurisprudence. Indeed, Wisconsin’s definition of ordinary high water mark is not** 

**20 While an average member of the public may not**  **require this degree of precision,** Trudeau **illustrates how a factual dispute over the location of the ordinary high**  **water mark may be resolved. In that case, the parties presented evidence via expert witnesses.**  Id **. at 108. For example, the state’s expert testified that he “analyzed**  **several aerial photographs . . . , the government survey maps, the site’s present configuration, and stereo [three**  **** **dimensional] photographs . . . .”** Id **. Numerous resources exist to provide guidance to professionals. See, e.g.,**  **Simpson,** River & Lake Boundaries: Surveying Water Boundaries—A Manual **(Kingman, AZ: Plat Key Publishing, 1994); Cole,**  Water Boundaries **(New York: J Wiley & Sons, 1997). Not surprisingly, this Court requires a survey**  **based on proper monuments to establish an actual property line.**  Hurd v Hines **, 346 Mich 70, 78-79; 77 NW2d 341 (1956). The same requirement would apply for a boundary**  **set by one of our Great Lakes.**

**28 far removed from meanings previously recognized in**  **Michigan. See MCL 324.30101(i); 21**  **1999 AC, R 281.301(j);**

Peterman **,** supra **at 198 n 29 (noting a statutory definition regarding inland waters, now enacted as MCL 324.30101(i),**  **when considering the ordinary high water mark on Lake Michigan). This definition also parallels that employed by**  **the federal government. See, e.g., 33 CFR 328.3(e). 22**  **Thus, we clarify the meaning of “ordinary high water mark” consistently with a definition that has served another** 

**21 Enacted after the GLSLA employed a standard based on**  **International Great Lakes Datum for the Great Lakes, MCL 324.30101(i), which contains definitions previously found**  **in the former Inland Lakes and Streams Act, in relevant part provides:**  **“Ordinary-high water mark” means the line between upland and bottomland that persists**  **through successive changes in water levels, below which the presence and action of the water is so**  **common or recurrent that the character of the land is marked distinctly from the upland and is**  **apparent in the soil itself, the configuration of the surface of the soil, and the vegetation.** 

**22 33 CFR 328.3(e) provides:**  **The term ordinary high water mark means that line on the shore established by the**  **fluctuations of water and indicated by physical characteristics such as clear, natural line**  **impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial**  **vegetation, the presence of litter and debris, or other appropriate means that consider the**  **characteristics of the surrounding areas.**

**29 Great Lakes state for some hundred years and is in accord**  **with the term’s limited development in our own state. The concepts behind the term “ordinary high water**  **mark” have remained constant since the state first entered the Union up to the present: boundaries on water are**  **dynamic and water levels in the Great Lakes fluctuate. 23**  **In light of this, the aforementioned factors will serve to**  **identify the ordinary high water mark, but 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.** 

**III. T**  **HE P**  **UBLIC T**  **RUST I**  **NCLUDES W**  **ALKING WITHIN ITS B**  **OUNDARIES We have established thus far that the private title of**  **littoral landowners remains subject to the public trust beneath the ordinary high water mark. But plaintiff, as a** 

**23 As our Court has consistently recognized, water**  **boundaries necessarily defy static definition. See** Hilt **,** supra **at 219. For example, the common law recognized riparian rights to accretion and reliction. This meant**  **that riparian landowners gained private title to land adjacent to their property that gradually became**  **permanently exposed through erosion or a change in water level. See**  Peterman **,** supra **at 192-193. The recognition of these riparian rights shows that our courts have refused to**  **fix a line that defies natural processes. Also, the concept of a “moveable freehold” to accommodate the effects**  **of accretion and reliction on the bounds of littoral title shows our acknowledgement of the shifting nature of water**  **boundaries. See** id. **,** Klais v Danowski **, 373 Mich 262, 275 -**  **276; 129 NW2d 414 (1964), and** Broedell **,** supra **at 206, all quoting**  Hilt **,** supra **at 219.**

**30 member of the public, may walk below the ordinary high**  **water mark only if that practice receives the protection of the public trust doctrine. We hold 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. To reiterate, the public trust doctrine serves to**  **protect resources—here the waters of the Great Lakes and their submerged lands—shared in common by the public. See**  **pp 9-11 of this opinion; see also** Venice of America Land

Co **,** supra **at 702 (noting that “the State of Michigan holds these lands in trust for the use and benefit of its**  **people”). 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. See** Obrecht v Nat'l Gypsum Co **, 361 Mich 399, 412 -**  **413; 105 NW2d 143 (1960). Yet its status as trustee does not permit the state, through any of its branches of**  **government, to secure to itself property rights held by**

**31 littoral owners. See**  Hilt **,** supra **at 224 (“The state must be honest.”).**  **24 We first note that neither party contests that walking**  **falls within public rights traditionally protected under our public trust doctrine. Rather, they dispute where, not**  **whether, plaintiff may walk: below the literal water’s edge or below the ordinary high water mark. While the**  **parties’ agreement on this point cannot determine the scope of public rights, this agreement does indicate the**  **existence of a common sense assumption: 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. See**  Nedtweg **,** supra **at 16;** Venice of America Land Co **,** supra **at 702;** Lake

**24 For example, in**  Hilt **,** supra **at 225, we noted several riparian rights held by landowners whose property abuts**  **water. These riparian rights include the “[u]se of the water for general purposes, as bathing, domestic use, etc.**  **[,] . . . wharf[ing] out to navigability [,] . . . [a]ccess to navigable waters [, and] . . . . [t]he right to**  **accretions.” (Citations omitted.) Moreover, “[r]iparian rights are property, for the taking or destruction of which**  **by the State compensation must be made, unless the use has a real and substantial relation to a paramount trust**  **purpose.”** Id **.; see also** Peterman **,** supra **at 191. Thus, we have long recognized the value of riparian rights, but**  **those rights remain ever subject to the “paramount” public trust.** 

**32**St Clair Fishing & Shooting Club **,** supra **at 586;** Lincoln **,** supra **at 388. 25**  **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. See**  Town of Orange v Resnick **, 94 Conn 573, 578; 109 A 864 (1920)**  **(listing as public rights “fishing, boating, hunting, bathing, taking shellfish, gathering seaweed, cutting sedge**  **and . . . passing and repassing”);** Arnold v Mundy **, 6 NJL 1, 12 (1821) (reserving to the public the use of waters for**  **“purposes of passing and repassing, navigation, fishing, fowling, [and] sustenance”).**  **We can protect traditional public rights under our public trust doctrine only by simultaneously safeguarding**  **activities inherent in the exercise of those rights. See**

**e.g.,** Attorney General, ex rel Director of Conservation v Taggart **, 306 Mich 432, 435, 443; 11 NW2d 193 (1943) (permitting wading in a stream pursuant to the public trust** 

**25 Indeed, we have even noted that the public might cut**  **ice or, in the context of inland waters, might float logs downriver. See**  Lake St Clair Fishing & Shooting Club **,** supra **at 587;** Grand Rapids Booming Co v Jarvis **, 30 Mich 308, 319 (1874).** 

**33 doctrine). 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. 26**  **Consequently, the public has always held a right of passage in and along the lakes.**  **Even before our state joined the Union, the Northwest Ordinance of 1787, art IV, protected our Great Lakes in**  **trust: “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same,**  **shall be common highways and forever free . . . .” See Northwest Ordinance of 1787, art IV. Given that we must**  **protect the Great Lakes as “common highways,” see** id **., we acknowledge that our public trust doctrine permits**  **pedestrian use–in and of itself–of our Great Lakes, up to and including the land below the ordinary high water mark.**  **Yet in** Hilt **,** supra **at 226, our Court noted the rule stated by the Wisconsin Supreme Court in**  Doemel v Jantz **, 180 Wis 225; 193 NW 393 (1923): “[T]he public has no right**  **of passage over dry land between low and high-water mark but the exclusive use is in the riparian owner . . . .”**  **When read in context, this quotation does not represent a**

**26 This does not imply a right of lateral access in the**  **public, i.e., a right to traverse the land of littoral owners to reach the lands and waters held in trust. See,**  **e.g.,** Collins **,** supra **at 49.**

**34 rejection of walking as impermissible within our public**  **trust. As correctly described by Justice Markman, the** Hilt **Court cited this passage as part of its discussion regarding the Michigan Supreme Court’s correction of an**  **earlier departure from the common law. 27**  **See** post **at 51-53. But rather than adopting that rule from**  Doemel **, the** Hilt **Court listed this rule, among others, to refute the notion that the state held “substantially absolute title” in the**  **lakes and the lands beneath them.** Hilt, supra **at 224. Instead, “the State has title in its sovereign capacity,”**  id., **pursuant to the public trust doctrine. Consequently, “the right of the State to use the bed of the lake, except**  **for the trust purposes, is subordinate to that of the riparian owner.”**  Id **. at 226, citing** Town of Orange **,** supra **at 578. In light of this exception for the public trust, littoral owners’ rights supersede public rights in the same**  **property (by virtue of their ownership) only to the extent that littoral owners’ rights do not contravene the public** 

**trust. See** id **. When the** Hilt **Court recognized the greater**

**27 The**  Kavanaugh **cases departed from the common law by fixing the meander line as the boundary on private littoral**  **title and by fixing the legal status of land below that line, regardless of subsequent physical changes. See**  Hilt **,** supra **at 213; see also** Kavanaugh v Rabior **, 222 Mich 68; 192 NW 623 (1923);**  Kavanaugh v Baird **, 241 Mich 240; 217 NW 2 (1928).** 

**35 rights of littoral property owners, it did not alter the**  **public trust or preclude the public from walking within it. We must conclude 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. See** Ryan v Brown **, 18 Mich 196, 209 (1869). 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.** 

**IV. RESPONSE TO OUR COLLEAGUES**  **Our Court unanimously agrees that defendants cannot prevent plaintiff from walking along the shore of Lake**  **Huron within the area of the public trust. Despite the separate theory that undergirds the analysis, Justices**  **Markman and Young agree with the majority that plaintiff may walk along Lake Huron in the area of the public trust.**  **Moreover, the majority and our colleagues agree on several other points. We agree that the public trust**  **doctrine, descended at common law, applies to our Great Lakes. See**  Hilt **,** supra **at 202 (“[T]his Court has consistently held that the State has title in fee in trust** 

**36 for the public to submerged beds of the Great Lakes within**  **its boundaries.”). We further agree that the public trust doctrine requires the state as trustee to preserve public**  **rights in the lakes and lands submerged beneath them. See** Nedtweg **,** supra **at 16. Finally, we agree that plaintiff retains the same right to walk along the Great Lakes she**  **has always held.** Post **at 50-52. That our colleagues disagree with the other members of this Court over the**  **particulars of how far those public rights extend ought not overshadow our fundamental agreement: plaintiff does not**  **interfere with defendants’ property rights when she walks within the public trust.**  **Despite the sound and fury of Justice Markman’s concurring and dissenting opinion,**  **28 we do not radically**  **depart from our precedents or destabilize property rights by upholding and applying our common law. While our** 

**28 For example, Justice Markman predicts the appearance**  **of fences along the shore. Yet to the extent that landowners may do as they see fit on their own property,**  **they could always erect a fence. While we share Justice Markman’s desire to preserve any “long coexist[ence] in**  **reasonable harmony,”** post **at 2 n 2, we find peculiar his implication that resolving an actual instance of disharmony**  **between these parties or correcting the lower court’s departure from our common law equates with this Court’s**  **endorsement of (or even comment on) property owners using fences. Were we to adopt our colleagues’ approach,**  **littoral landowners could place fences as far down as the water’s edge.** 

**37 colleagues in dissent claim to maintain the status quo,**  **they do not do so. Rather, the majority retains and clarifies the status quo. The trial court correctly**  **permitted plaintiff to walk lakeward of the ordinary high water mark. The Court of Appeals also correctly recognized**  **the importance of the public trust doctrine, though we reverse its requirement that plaintiff walk only where**  **water currently lies. Yet our colleagues in dissent would repeat this error**  **by continuing to grant an exclusive right of possession to littoral landowners. Indeed, they would compound this**  **error by granting littoral landowners all property down to where unsubmerged land ends, which they locate at the**  **water’s edge, 29**  **regardless of the terms of landowners’**

**29 Numerous states bound their public trust, not at an**  **instantaneously defined “water’s edge,” but at their high water mark. See, e.g.,**  Barboro v Boyle **, 119 Ark 377, 385; 178 SW 378 (1915) (high water mark for a lake);**  Simons v French **, 25 Conn 346, 352-353 (1856) (high water mark on tidal waters);**  Day v Day **, 22 Md 530, 537 (1865) (high water mark on tidally influenced rivers and streams);**  State v Florida Natural Properties, Inc **, 338 So 2d 13, 19 (Fla, 1976) (ordinary high water mark);**  Freeland v Pennsylvania R Co **, 197 Pa 529, 539; 47 A 745 (1901) (ordinary high water mark);**  Allen v Allen **, 19 RI 114, 115; 32 A 166 (1895) (high water mark);**  State v Hardee **, 259 SC 535, 541-542; 193 SE2d 497 (1972) (high water mark on tidally influenced stream).**  **Indeed, references in other states to “water’s edge” often tie that term to either a**  **high or low water mark. See, e.g.,**  Concord Mfg Co v Robertson **, 66 NH 1, 19-21; 25 A 718 (1889);**  Lamprey v State **, 52 Minn 181, 198; 53 NW 1139**

**38 deeds.**  **30 We would not so casually set aside the countless**  **deeds that order property rights for the length of our state shoreline. We would not give away to littoral**  **landowners the absolute title to public trust land preserved for the people. Such a departure would represent**  **a grave disturbance to the property rights of littoral landowners and of the public.**  **Notwithstanding Justice Markman’s characterization of this case as “aberrational,”**  post **at 4, 5, and 65, we have not invented the dispute presented to us. Nor do we have**  **the luxury of forsaking public rights; our Court is one of the “sworn guardians of Michigan’s duty and responsibility**  **as trustee of the [Great Lakes].” See** Obrecht **,** supra **at 412.**  **For the reasons described earlier in the opinion, we conclude that public rights may overlap with private title.**  **Consequently, we refuse to enshrine–for the first time in our history–a solitary boundary between them. In this way,**  **(1893);** Hazen v Perkins **, 92 Vt 414, 419-421; 105 A 249 (1918); Mont Code, § 70-16-201; ND Cent Code, § 47-01-15.** 

**30 In the absence of a review of the myriad deeds by**  **which landowners hold title to property on the Great Lakes, Justice Markman assumes that their deeds will describe, in**  **some manner, the “water’s edge.” Yet, as he acknowledges, that water’s edge may shift. This could result in water**  **reaching above the low water mark, even though a deed could convey title to the low water mark. See, e.g.,**  La Porte v Menacon, **220 Mich 684, 687; 190 NW 655 (1922) (enforcing a deed that extended private title to the “shore,” meaning**  **the “water’s edge at its lowest mark”).**

**39 we preserve littoral title as landowners have always held**  **it, and we preserve public rights always held by the state**

**as trustee. In dissent, our colleagues resist acknowledging the**  **boundary of the public trust as the ordinary high water mark. To reach this conclusion, Justice Markman relies on**  **cases concerning the boundary of** private title **, rather than the boundary of the public trust. See e.g.,**  Silberwood **;** Lake St Clair Hunting & Fishing **;** Hilt **. 31**  **He refuses to accept our Court’s holding–in a case involving Lake**  **Michigan–that “‘the limit of the public’s right is the ordinary high water mark . . . .’”**  Peterman **,** supra **at 198 (citation omitted).**  **32 Although he criticizes the majority** 

**31 Justice Markman makes frequent reference to colonial**  **cases, particularly relying on Massachusetts. But as that state’s high court has made clear, at common law the state**  **owned to the mean high water line subject to public rights in navigation and fishing. See**  Opinion of the Justices to the House of Representatives **, 365 Mass 681, 684-685; 313 NE2d 561 (1974). What the court described as the colonial**  **ordinance of 1641 to 1647 changed the common law to allow private title to the low water mark, but even that extended**  **title remained subject to public rights.** Id **. Unlike Massachusetts, no colonial ordinance altered the common-law**  **concepts in Michigan.**

**32 In seeming contradiction to his reading of**  Peterman **, Justice Markman does accept that “the ‘ordinary high water**  **mark’ is simply the outside edge of property that may . . . be regulated to preserve future navigational interests at**  **times of high water . . . .”** Post **at 29. He also goes so far as to suggest that our Court has equated the high and** 

**40 for vagueness with regard to the definition of that term,**  **33 we clarify the meaning of that term in a way that allows**  **for the fact-specific inquiry necessary to account for the range of physical forces and variety of landforms along our**  **shoreline. 34**  **We decline to draw, merely for a charade of clarity, a universal line along the Great Lakes without any**  **factual development of the point in the instant case or**

**low water marks, see** post **at 55, but the** Warner **Court on which he relies did not address that issue.**  Warner, supra **at 239 (“If the absence of tides upon the Lakes, or their trifling effect if they can be said to exist, practically**  **makes high and low water mark identical for the purpose of determining boundaries (a point we do not pass upon), the**  **limit of private ownership is thereby marked.”). Additionally, our precedent stands in contradiction to**  **Justice Young’s intuition that the ordinary high water mark has no application in Michigan. See, e.g.,**  Peterman, supra **at 198-199 (calculating damages, at least in part, on the basis of the location of the ordinary high water mark). In**  **contrast, the “wet sand” standard supported by Justice Young appears for the first time in our state in this case.**  **We have serious reservations about adopting the view that he joins Justice Markman in advancing. See**  post **at 49-51.**

**33 In apparent tension with his claim that the majority**  **fails to rely on Michigan common law, Justice Markman purports to offer an authoritative definition for ordinary**  **high water mark that derives from a federal case and a 1997 dictionary. See**  post **at 41-42 & n 35.**

**34 We are unpersuaded that Justice Markman’s recitation**  **of natural forces demonstrates a difficulty in ascertaining the ordinary high water mark, because those same forces**  **operate to shift the “water’s edge.” See** post **at 43-48. If anything, the results of this scientific expedition show**  **the complexity of arriving at a water-tight definition, rather than prove that the “water’s edge” concept escapes**  **similar difficulties.**

**41 legal argument on an issue of significance to our state’s**  **jurisprudence. Nor does our colleagues’ “water’s edge” concept**  **provide superior clarity. Although the term might intuitively appear to mean where the water meets land,**  **Justice Markman expands the term to include sand dampened by water. See, e.g.,**  post **at 50 (“Because by definition such sands are infused with water, the wet sands fall**  **within the definition of ‘submerged lands.’”). Our colleagues’ conception of “water’s edge” neglects to**  **account for (1) geography where sand is absent; (2) sudden changes in water levels such as storm surges; (3) what**  **degree of dampness suffices: that identified by touch, sight, or a scientific review that could identify the**  **presence of a single water molecule; and (4) the source of the water, where dampness may arise because of contact with**  **a liquid, such as rain, other than water from the Great Lakes. Also, the instant-by-instant determination of a**  **property boundary affords little certainty to littoral landowners. Given these serious difficulties in applying**  **our colleagues’ “water’s edge” rule** and **the absence of support in our case law, we refuse to shift the boundary on**  **the public trust away from the ordinary high water mark.**

**42 As trustee, the state has an obligation to protect the**  **public trust. The state cannot take what it already owns. Because private littoral title remains subject to the**  **public trust, no taking occurs when the state protects and retains that which it could not alienate: public rights**  **held pursuant to the public trust doctrine. 35**  **Certainly, the loss of littoral property or riparian rights could**  **result from an unconstitutional taking. See, e.g.,**

Peterman **,** supra **at 198, 208 (compensating the plaintiffs for losses above the ordinary high water mark); see also**  Bott v Natural Resources Comm, **415 Mich 45, 80; 327 NW2d 838 (1982);**  Hilt **,** supra **at 225. Yet, here, defendants have not lost any property rights. Rather, they retain their**  **property subject to the public trust, just as all property that abuts the Great Lakes in Michigan remains subject to**  **the public trust, pursuant to our common law.**

**35 The United States Supreme Court has held that the**  **issue before us is a m atter of state property law.**  **See** Phillips Petroleum Co v Mississippi **, 484 US 469, 475; 108 S Ct 791; 98 L Ed 2d 877 (1988) (“[T]he individual States**  **have the authority to define the limits of the lands held in public trust and to recognize private rights in such**  **lands as they see fit.”); see also** Shively **,** supra **at 40 (“[T]he title and rights of riparian or littoral**  **proprietors in the soil below high water mark of navigable waters are governed by the local laws of the several**  **States, subject, of course, to the rights granted to the United States by the Constitution.”).** 

**43 Justice Markman also criticizes the majority for**  **leaving unanswered many questions, several of which require the adoption of the legal framework that he proposed. Yet**  **this case raises none of the questions that Justice Markman poses. In general, we reserve the judgment of this Court**  **for “actual cases and controversies” and do not “declare principles or rules of law that have no practical legal**  **effect in the case before us . . . .”**  Federated Publications, Inc v City of Lansing **, 467 Mich 98, 112; 649 NW2d 383 (2002). Accordingly, we decline to rule on issues**  **that are not before us.**

**V. CONCLUSION**  **We conclude that plaintiff, as a member of the public, may walk the shores of the Great Lakes below the ordinary**  **high water mark. Under longstanding common-law principles, defendants hold private title to**  **their littoral property according to the terms of their deed and subject to the**  **public trust. We therefore reverse the judgment of the Court of Appeals and remand this case to the trial court**  **for further proceedings consistent with this opinion. Maura D. Corrigan**  **Clifford W. Taylor Michael F. Cavanagh**  **Elizabeth A. Weaver Marilyn Kelly** 

**44 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**JOAN M. GLASS, Plaintiff-Appellant,** 

**No. 126409**  **RICHARD A. GOECKEL AND KATHLEEN D. GOECKEL, Defendants-Appellees.** 

**YOUNG, J. (** concurring in part and dissenting in part **). This case poses a deceptively simple question: where,**  **if anywhere, can a member of the public walk on the private beach of one of our Great Lakes without trespassing on a**  **lakefront (littoral) owner’s property? Although the question is simple, the answer, as amply**  **demonstrated by the more than one hundred pages of the rival opinions filed in this case, is muddled by an**  **abstruse body of precedent that has been less than precise in defining critical terms and issues. This was a well**  **** **briefed and argued case that has resulted in a vigorous debate within the Court. The opinions of the majority and**  **Justice Markman present compelling, principled, but** competing **constructions of an ambiguous body of Michigan law and that of other jurisdictions concerning Great Lakes** **property rights. In the final analysis, I believe that answer offered by Justice Markman is more firmly anchored**  **than that of the majority in the admittedly obscure property law of the Great Lakes.**  **I concur in the majority’s determination that the Great Lakes Submerged Lands Act (GLSLA), MCL 324.32501**  et seq., **does not create a right to wa lk the shores of our Great**  **Lakes. The Act plainly evinces the Legislature’s intent to regulate**  **the use of land below what the International Great Lakes Datum identifies as the “ordinary high water mark,”**  **rather than to define new public rights or limit established property rights.**  **1 However, I join Justice Markman’s opinion with respect**  **to the other issues presented by this appeal. Like Justice Markman, I believe the majority errs by recognizing a right**  **that we have never before recognized-the right to “walk” the private beaches of our Great Lakes- and by granting**  **public access to private shore land up to an ill-defined and utterly chimerical “ordinary high water mark” as**  **described in the majority opinion. 2** 

**1 See**  ante **at 14-19. 2**  **See** ante **at 19-30. The majority concedes that: “Applying a term [ordinary high water mark] from the common**  **law of the sea, despite the obvious difference between the oceans and the Great Lakes, has lead to some apparent**  **discontinuity in the terminology employed in our case law.”**

2**To be sure, the majority’s opinion constitutes a concerted and honest effort to give coherence to a very**  **vague body of precedent. However admirable the majority’s effort, I remain convinced that the “ordinary high water**  **mark” concept on which the majority relies applies only to tidal waters, with their regularly recurring high and low**  **tides. 3**  **The only “water mark” that one can find on the Great Lakes is the water’s edge—viz**  ., **the wet portion of the shore over which the lake is presently ebbing and**  **flowing. I believe it is only in this area of wet shoreline that the public may walk. They may do so, not**  **because of a recognized “right to walk” the otherwise private beaches of our Great Lakes, for no such “right” has**  **ever been recognized previously to be a part of Michigan’s public trust doctrine.**  **4 Nor, in my view, is the public’s** 

Ante **at 26-27. Precisely so. In effort to employ a term that does not adequately reflect the physical realities of**  **our Great Lakes, the majority has borrowed definitions variously from statutes and Wisconsin cases in a struggle**  **to make this tidal term fit where it does not, and in so doing, has immeasurably expanded the scope of the public**  **trust.**

**3 See**  post **at 31-35.**

**4 Until today, Michigan cases have only recognized the**  **right of the public to use the public trust for navigation, hunting, fishing, and fowling. See, e.g.,**  Hilt v Weber, **252 Mich 198, 224; 233 NW 159 (1930);** Collins v Gerhardt, **237 Mich 38, 46; 211 NW 115 (1926);** State v Lake St Clair

3**opportunity to walk the shoreline a product of an overlap between private and public property titles as the majority**  **asserts. Rather, I believe that the littoral landowner has no property claim to assert over submerged land—land over**  **which the waters of a Great Lake is presently ebbing and flowing and which constitutes the lake bed. This area is**  **the outer boundary of the public trust that is owned by and maintained for the People of Michigan.**  **The difficulty of the majority’s rule and the soundness of Justice Markman’s approach is evident when one**  **actually tries to apply their different standards to the shore. In the attached photograph,**  **5 an area of darker, wet**  **sand forms the outer boundary of the lake bed. The water is presently acting on this portion of the beach, as**  **evidenced by the fact that the land is waterlogged. Under Justice Markman’s view and my own, it is only in this area**  **that the public may walk, and it may do so because the land is**  presently **subject to reinundation and is part of the**

Fishing & Shooting Club, **127 Mich 580, 586; 87 NW 117 (1901).** 

**5 Photograph by David Hansen, Minnesota Agricultural**  **Experiment Station, University of Minnesota. Reproduced with permission.** 

4**lake bed. Thus, in the photograph, both the seagull and the beach walker are within the public trust.**  **6**

**Where, however, lies the majority’s “ordinary high water mark” in this photograph? Presumably, the majority**  **would identify the point where sand gives way to vegetation in the upper right-hand corner of the picture. The lake**  **water is nowhere near that point now and, absent a storm, the water is unlikely to reach that point any time in the**  **near future. Even if the lake did rise to meet the vegetation line due to extremely high precipitation or** 

**6 Accordingly, I would hold that plaintiff may walk in**  **the zone of wet sands on Lake Huron, provided that she does so without creating a nuisance, because the defendants have**  **no property interests in the bed of that lake.**

5**powerful barometric forces, in what sense would the line of vegetation be an**  ordinary **high water mark in the sense suggested by the majority’s definition?**  **Moreover, the majority notes that its ordinary high**  **water mark excludes all dry land except that “temporar[ily] expos[ed]”**  **7 by the water. The pictorial beach illustration**  **shows how unsatisfactory is the majority’s formulation of its definition of “ordinary high water mark” as applied to**  **our Great Lakes: What exactly does the majority mean by “temporary” exposure? If it simply means land from which**  **the lake waters have “not permanently receded,” 8**  **at what point may anyone determine that the recession of the water**  **is “permanent”? If the portion of the shore between the lake bed (including the wet sand area over which the lake**  **is presently lapping) and the vegetation line has been dry for a season or more, can it truly be argued that this area**  **of the beach is “** temporarily **” exposed? These are apparently pure questions of fact for the majority,**  **9 but I**  **believe they are critical threshold questions that must be posed and answered when giving the term “ordinary high** 

**7** Ante **at 27.**

**8** Ante **at 27.**

**9** Ante **at 30.**

6**water mark” a workable legal definition as applied to the Great Lakes.**  **In essence, then, I believe that the majority concludes that the dry sandy area in the attached picture**  **is entirely below the “ordinary high water mark” (thus within the protected, state-owned public trust) because**  **this area** looks **like it may have been subject to the influence of water at some unidentifiable point in the past**  **and because it may again, at some unidentifiable point in the future, be covered by the lake. If nothing else, this**  **is an impractical proposition because it requires the uncritical application to our nontidal Great Lakes of a**  **term–the “ordinary high water mark”-that is applicable** only **to tidal waters. I believe the analysis offered by Justice Markman is**  **more persuasive than that offered by the majority. In my view, not only has Justice Markman analyzed the applicable**  **common law decisions with greater accuracy but, in contrast with the majority opinion, he has articulated a rule that**  **is both faithful to the physical realities of our Great Lakes and consonant with the available confused precedent**  **that we have all valiantly struggled to decipher. 10** 

**10 If we must transform the**  **term “ordinary high water mark” in order to use it, I believe that we ought at least** 

7**For these reasons, I concur in part II(A) of the majority opinion but join parts I-III and V of Justice**  **Markman’s opinion in respectfully dissenting from the remainder of the majority opinion.**  **Robert P. Young, Jr.**

**define and apply it in a way that reflects the physical nature of our non-tidal Great Lakes and that does least**  **damage to heretofore stable lakefront property rights in**  **the State.**

8**_______________________________ v**  **S T A T E O F M I C H I G A N**
**SUPREME COURT**

**JOAN M. GLASS, Plaintiff-Appellant,** 

**No. 126409**  **RICHARD A. GOECKEL AND KATHLEEN D. GOECKEL, Defendants-Appellees.** 

**MARKMAN, J. (** concurring in part **and** dissenting **). Because I would not alter the longstanding status quo**  **in our state concerning the competing rights of the public and lakefront property owners, I respectfully dissent. In**  **concluding that the “public trust doctrine” permits members of the public to use unsubmerged lakefront property up to**  **the “ordinary high water mark,” the majority creates new legal rules in Michigan out of whole cloth by adopting**  **Wisconsin law in piecemeal fashion and discarding Michigan rules that have defined the relationship between the public**  **and lakefront property owners for virtually the entirety of our state’s history.**  **1 Equally troubling, the majority** 

**Although, quite remarkably, the majority purports that it “retains and clarifies the status quo,” a**  nte **at 38, there is not a scintilla of support for the proposition**  1**replaces clear and well-understood rules-- rules that have produced reasonable harmony over the decades in Michigan--**  **with obscure rules. One of the few things that is clear about the majority’s opinion is that it will lead**  **inevitably to more litigation-- more litigation in an area of the law that, mercifully, has been largely free from**  **such litigation for the past century and a half in our state. In the place of the reasonable harmony that has**  **developed between the public and littoral property owners, there will be litigation. In the place of open beaches,**  **there almost certainly will be a proliferation of fences erected by property owners determined to protect their now**  **uncertain rights. 2**  **In the place of rules that have** both

**that Wisconsin law has ever been the law of Michigan, not a single Michigan case referencing the majority’s new test,**  **and not a paragraph of argument in any of the briefs of**  **plaintiffs, defendants, or amici identifying Wisconsin law as the law of Michigan.** 

2 **The majority fails to recognize why its new rules are a prescription for fences. It is, of course, true that a**  **lakefront property owner “could always erect a fence,” as the majority observes.**  Ante **at 37 n 28. However, fences have not heretofore generally been thought necessary.**  **Under current law, which I would not alter, members of the public and lakefront property owners have long coexisted in**  **reasonable harmony. It is the majority’s actions today in departing from our precedents and creating new and vague**  **law that will almost certainly transform this relationship and cause at least some property owners to believe that**  **they must erect fences in order to protect boundaries that now have been called into question and that apparently will** 

**2 upheld the property rights of lakefront landowners and**  **provided an environment in which reasonable public use of lakefront property, including beach-walking, could**  **routinely take place, the majority introduces new rules that will create tensions between the public and lakefront**  **property owners. In the place of a boundary that can be determined by simple observation, the majority’s new rules**  **would require property owners and the public to bring “aerial photographs,” a “government survey map[]” and**  **“stereo [three-dimensional] photographs,”** ante **at 28 n 20, in order to determine where their rights begin and end. In**  **the place of rules in which property rights have been clearly defined by law, the majority expands the “public**  **trust” in an uncertain fashion, in accordance with rules and regulations to be issued at some future time by the**  **administrative agencies of state government. In the place of the clear rule of law in which property rights have been**  **respected in a consistent fashion for more than a century and a half, there will be political dispute and**  **negotiation. This is the**  first **such dispute to come before this Court in our history. Rather than recognizing the harmony** 

**be subject to definition by the Department of Natural Resources.** 

**3 that has been produced by the present rules in the course**  **of the millions of interactions that occur each year between the public and property owners along the Great**  **Lakes, the majority instead creates new rules on the basis of an isolated and aberrational dispute between the present**  **parties. The majority departs from the longstanding status quo**  **in our state, despite the following: (1) there is no realm of the law in which there is**  **a greater need to maintain stability and continuity than with regard to property**  **rights; (2) the parties in this case have all asserted that they favor a maintenance of the status quo;**  **3 (3) there is no** 

3 **Plaintiff argues that use of the term “‘water’s edge’ [in**  Hilt v Weber, **252 Mich 198; 233 NW 159 (1930)] is consistent with the nomenclature of many other state and**  **federal cases using ‘water’s edge’ to mean ‘high water mark.’” Plaintiff's brief at 24. See, also, amicus brief**  **of the Tip of the Mitt Watershed Council at 18; amicus brief of the Michigan Senate Democratic Caucus at 2; amicus**  **brief of the Michigan Land Use Institute at 10; and amici brief of the Michigan Departments of Environmental Quality**  **and Natural Resources at 11. Defendants argue that the status quo gives the littoral owner “exclusive use of the**  **beachfront to the water’s edge as it exists from time to time.” Defendants’ brief at 13. See, also, amici brief of**  **the Michigan Chamber of Comm erce, National Federation of**  **Independent Business Legal Foundation, Michigan Bankers Association, and Michigan Hotel, Motel & Resort Association**  **at 11 (“The relevant Michigan authorities thus compel the conclusion that the public trust applies only to submerged**  **lands when they are actually submerged”); amici brief of the Save our Shoreline and the Great Lakes Coalition, Inc**  **at 9 (“[t]hat the water’s edge was the boundary between**

**4 evidence that the status quo has not reasonably balanced**  **the interests of property owners and the public in Michigan for more than a century and a half; and (4) there is no**  **evidence that the present dispute is anything other than an isolated and aberrational dispute, not one upon which to**  **predicate the reversal of a century-and-a-half-old conception of private property rights.**  **This Court has recognized the importance of maintaining the security of private property by**  **“declar[ing] that stare decisis is to be strictly observed where past decisions establish ‘rules of property’ that**  **induce extensive reliance.”** Bott v Natural Resources Comm, **415 Mich 45, 77-78; 327 NW2d 838 (1982). In** Bott, **we noted that “[j]udicial ‘rules of property’ create value, and the**  **passage of time induces a belief in their stability that generates commitments of human energy and capital.”**  Id. **at 78.**  **Therefore, such rules should be closely respected and overturned only for “the very best of reasons.” See, e.g.,**  Dolby v State Hwy Comm'r **, 283 Mich 609, 615; 278 NW 694**
**public and [littoral] ownership was first suggested in [** La Plaisance **]”); amici brief of the legislators at 4 (arguing that numerous Michigan cases establish that littoral owners**  **“have** title **to their property to the water’s edge, free of any public trust interest in the submerged lands of the**  **Great Lakes”); and amicus brief of the Defenders of Property Rights at 12 (noting that in the past sixty-four**  **years, this Court has rejected any attempt to expand public rights to areas landward of the water’s edge).** 

**5 (1938);**  Lewis v Sheldon **, 103 Mich 102, 103; 61 NW 269 (1894).**  **The public’s right to use property abutting the Great Lakes under the public trust doctrine has traditionally**  **been limited to “submerged lands,” i.e., those lands covered by the Great Lakes, including their wet sands. The**  **“water’s edge” is that point at which wet sands give way to dry sands, thus marking the limit of the public’s rights**  **under the public trust doctrine. This has been the rule in our state since this Court’s decision in**  Hilt v Weber **, 252 Mich 198; 233 NW 159 (1930), a case that for seventy-five**  **years has defined the limits of the public’s rights of use of littoral property.**  **4 Indeed, except for the seven-year**  **period immediately preceding** Hilt **, this water’s edge principle is consistent with Michigan case law dating back**  **over 160 years and probably even earlier. Lakefront**

4 **As noted by the majority, “[o]ur case law has not always precisely distinguished” between the terms**  **“littoral” and “riparian.”** Ante **at 1 n 1. The former applies to oceans, seas, the Great Lakes, and their coasts,**  **while the latter applies to rivers and streams. Black’s Law Dictionary (7th ed). Unfortunately, the misuse of**  **these terms appears to at times have led this Court to misapply aspects of the public trust doctrine as they**  **relate to rivers and streams as if those aspects also related to the Great Lakes. See, e.g.,**  Peterman v Dep’t of Natural Resources **, 446 Mich 177, 195; 521 NW2d 499 (1994). I will use the term “littoral” when discussing property**  **abutting the Great Lakes.**

**6 property owners, including businesses,**  **5 have invested in**  **reliance on present rules concerning the relationship between the public and lakefront property owners. This**  **reliance on longstanding rules should have given the majority considerable pause before it**  **altered the status quo and redefined the public trust doctrine.**  **This is not the first time this Court has upset settled rules of property on the Great Lakes, but the**  **lessons of the first time do not seem to have been well**   ** learned by the majority. Before the 1920s, property owners** **believed that their title extended to the water’s edge. Steinberg,**  God’s terminus: Boundaries, nature, and property on the Michigan shore **, 37 Am J Legal Hist 65, 72 (1993). However, in the**  Kavanaugh **cases, 6**  **this Court abruptly**

5 **In particular, the consequences of the majority’s new rules are uncertain for those in the tourism industry in**  **Michigan who have invested in reliance on the rule set forth in**  Hilt. **The majority, in using the “ordinary high water mark” as “defined” under Wisconsin law, has opened to**  **public use unsubmerged lands up to a wholly unspecified point landward of the water and this change would seem to**  **have implications for the ability of at least some Great Lakes tourists to enjoy the type of tranquil retreat**  **offered by private beaches wit hin Michigan. See,**  **generally, the amici brief of the Michigan Chamber of Commerce, National Federation of Independent Business Legal**  **Foundation, Michigan Bankers Association, and Michigan Hotel, Motel & Resort Association.** 

6 Kavanaugh v Rabior **, 222 Mich 68; 192 NW 623 (1923), and**  Kavanaugh v Baird **, 241 Mich 240; 217 NW 2 (1928).**

**7 overruled eighty years of then-existing case law and held**  **that a littoral owner’s title extended only to the “meander line,” a survey line used by the federal government to**  **determine the amount of property available for sale in the Michigan Territory.**  **7 While this Court recognized at the**  **time that this decision was “against the overwhelming weight of authority,”**  **8 unlike the majority’s decision today,**  **it was at least arguably grounded in dictum from a prior Michigan decision.**  **9 Nevertheless, by deviating from an**  **established rule of property rights in favor of establishing a boundary at an imaginary line that property**  **owners could not easily identify, the** Kavanaugh **cases threw Michigan’s lakeshores into disarray. For example, renters**  **of property between the meander line and the water’s edge withheld their rent and in fact were advised to do so by**  **the director of the Department of Conservation.** Id. **at 77 -**  **78. Further, littoral owners found that third parties were**  **building on property between the meander line and the**

7 Hilt **,** supra **at 204-205.**

8 Baird **,** supra **at 252.**

9 **In** Ainsworth v Munoskong Hunting & Fishing Club, **159 Mich 61, 64; 123 NW 802 (1909), we stated that “[littoral]**  **owners along the Great Lakes own only to the meander line . . . .” Later, however, in**  Hilt, supra **at 207, we noted that in**  Ainsworth **, the meander line and water’s edge were the same on the bay in question.** 

**8 water’s edge, thus effectively blocking their access to the**  **lake. Other littoral owners were forced to hire surveyors in order to determine with any certainty what property they**  **actually owned. The chaos caused by the departure from the traditional rule in the**  Kavanaugh **cases was so dramatic that just seven years later this Court corrected its error**  **and reestablished the rules of property as they had existed on the Great Lakes for at least the prior eighty years.**  Hilt, supra **at 227. The majority today revamps the public trust doctrine**  **on the basis of** Wisconsin **law-- or at least on the portions of it that the majority finds to their liking-- and, in so**  **doing, announces new rules of law regarding lands subject to the public trust doctrine. Because I believe that the**  **public’s rights under the doctrine have always been limited to the use of submerged lands, which includes the wet**  **sands, I do not believe that the Court of Appeals erred in holding that the public may not walk on unsubmerged lands.**  **However, I do believe the Court of Appeals erred in holding that the state’s title begins at the “ordinary high water**  **mark.” Therefore, I would affirm in part and reverse in part the decision of the Court of Appeals and remand to the**  **trial court to apply the principles set forth in this opinion.** 

**9 I.**  **M ISUNDERSTANDING THE**  **“O RDINARY**  **H IGH**  **W ATER**  **M ARK**  **” The majority concludes that the “ordinary high water**  **mark” is the landward boundary of the public trust doctrine.**  **10 While the majori**  **ty does not necessarily disagree that the water’s edge serves as the boundary of**  **the littoral owner’s title, it would expand the public’s legal right to use property up to the utterly indiscernible**  **“‘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.’”** 

Ante **at 27 (citation omitted). The majority further adds that this newly described “ordinary high water mark,” one**  **never before seen in Michigan, includes unsubmerged lands that are the product of “fluctuation” in the level of the**  **lake that “results in temporary exposure of land that may**

10 **The majority also creates a new rhetorical formulation for the test determining whether a use is**  **permitted by the public trust doctrine, although I fail to see any significant distinction between a use that is**  **“inherent in the exercise of traditionally protected public rights,”**  ante **at 32, and a use that bears “a real and substantial relation to a paramount trust purpose.”**  Hilt, supra **at 225. I agree with the majority that beach-walking is a permissible public trust use. Walking in submerged**  **lands is an activity that bears a “necessary and substantial relation” to other water-borne recreational**  **activities protected by the doctrine, e.g., boating, swimming, and fishing.** 

**10 then remain exposed above where water currently lies.”**  Id **. I disagree. The majority replaces a workable and easily**  **identifiable boundary with one whose exact location is anyone’s guess and it has done so on**  **the basis of the** Wisconsin **public trust doctrine, or at least that part of Wisconsin’s doctrine that supports the majority’s new**  **rule. 11**  **Instead, I believe that the public’s entitlement to use property under the public trust doctrine of Michigan is**  **limited to submerged lands, i.e., the Great Lakes and their wet sands.**  **The majority’s creation of this new rule is rooted in its misunderstanding of the importance of the “ordinary**  **high water mark” for the purpose of defining the boundary of the public trust on the nontidal Great Lakes. The**  **public trust doctrine in the United States is derived from the English common law, which extended to tidal land below** 

11 **Curiously, the majority adopts Wisconsin law in this area, despite the fact that Wisconsin’s 820 miles of Great**  **Lakes shoreline is dwarfed by the 3,288 miles of shoreline in this state. <http://www.michigan.gov/deq/0,1607,7-135**  **- 3313_3677-15959--,00.html> (accessed June 24, 2005).**  **Nonetheless, the critical point is not whether it is the law of a state with a longer or shorter shoreline than**  **Michigan's that has been adopted by the majority. Rather, it is why**  any **new law has been adopted when current law has proven workable for many decades of our state-- clearly**  **setting forth the rights of the public and the property owner, minimizing litigation, and simultaneously protecting**  **private property rights while allowing reasonable public use of the Great Lakes, including beach-walking.** 

**11 the ordinary high water mark.**  Borax Consolidated, Ltd v Los Angeles **, 296 US 10, 23; 56 S Ct 23; 80 L Ed 9 (1935). The rights protected by the English common law included use**  **of tidal lands up to the ordinary high water mark for “navigation and commerce . . . and for the purposes of**  **fishing . . . .”** Shively v Bowlby **, 152 US 1, 11; 14 S Ct 548; 38 L Ed 331 (1894).**  **Following the American Revolution, the title held for the public trust by the King passed to the states, subject**  **only to those rights surrendered by the states to the federal government.**  Id. **at 14-15. While each state is required to protect the uses permitted by the public trust**  **doctrine,** Illinois Central R Co v Illinois, **146 US 387, 453; 13 S Ct 110; 36 L Ed 1018 (1892)**  (Illinois Central I) **, the scope of property subject to that trust is governed by**  **“the local laws of the several States . . . .” 12**  Shively,

12 **The majority also notes that in** Illinois Central R Co v Chicago **, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622 (1900) (**  Illinois Central II **), the United States Supreme Court found that “a grant of lands by the State does not**  **pass title to submerged lands below high-water mark . . . .” However, as stated in**  Shively, **the scope of lands subject to the public trust is determined by state law. In**  **determining the scope of the trust doctrine in** Illinois Central II **, the United States Supreme Court looked to “the law of the State of Illinois, as laid down by the Supreme**  **Court . . . .”** Id. **at 659. In finding that Illinois’s title went to the high water mark, the point emphasized by**  **the majority, the United States Supreme Court cited**

**12**supra **at 40. Thus, it cannot be said that the American**  **public trust doctrine uniformly ext ends to the “ordinary**  **high water mark.”** Id. **While a majority of the original thirteen colonies followed the English common-law rule,**  Shively **noted that four of the original colonies held that the littoral owner holds title to the “low water mark,”**  **subject only to the public’s right to use the water for navigation and fishing when it is above that point.**  Id. **at 18-25.**  **13 For example, in**  Commonwealth v Alger **, 61 Mass 53, 70 (1851), the Supreme Court of Massachusetts held, under** 

**Illinois case law directly.** Id. **at 660, citing** Seaman v Smith **, 24 Ill 521 (1860),** People ex rel Attorney General v Kirk **, 162 Ill 138, 146; 45 NE 830 (1896), and** Revell v People **, 177 Ill 468, 479; 52 NE 1052 (1898). Because** Illinois Central II **applied Illinois law, its holding regarding the scope of lands subject to the public trust**  **doctrine is not binding on this Court. Rather, the common law as developed in**  this **state determines the scope of lands subject to the doctrine.** 

13 **Those states are: Massachusetts,** Shively, supra **at 18-19 (littoral owner takes title in fee to the low water**  **mark “subject to the public rights of navigation and fishery”); New Hampshire,**  id. **at 20 (“a right in the shore has been recognized to belong to the owner of the adjoining**  **upland”); Pennsylvania,** id. **at 23 (“the owner of lands bounded by navigable water has the title in the soil**  **between high and low water mark, subject to the public right of navigation”); and Virginia,**  id. **at 24-25 (“the owner of land bounded by tide waters has the title to**  **ordinary low water mark, and the right to build wharves, provided they do not obstruct navigation”).** 

**13 the “local laws” of that state,**  **14 a littoral owner’s title**  **extends to the low water mark. However, the littoral owner’s title is limited because “whilst [lands above the**  **low water mark] are covered with the sea, all other persons have the right to use them for the ordinary purposes of**  **navigation.”** Id. **at 74-75. In other words, the public’s rights under the public trust doctrine are limited to the**  **use of property that is** currently **submerged. Thus, the public trust doctrine as defined in the “low water mark”**  **colonies restricts the public’s right of use to either land below the low water mark or to such land as is currently**  **covered by the waters of the ocean. 15**  **Likewise, the “local laws” of Michigan did not adopt the English definition of public trust lands, but rather**  **restricted the public’s rights under the public trust doctrine to the use of submerged lands. In**  La Plaisance

14 **As noted by the majority,** ante **at 40 n 31, Massachusetts adopted the low water mark by colonial**  **ordinance.** Alger **,** supra **at 66. Thus, while obviously not directly applicable to the public trust doctrine in**  **Michigan,** Alger **does make clear that the “ordinary high**  **water mark” has not been as universally accepted as the majority apparently believes.** 

15 **In light of the majority’s reliance on Wisconsin law, it is interesting to note that the Wisconsin Supreme**  **Court similarly held that the public’s right to use submerged lands up to the high water mark is only**  **applicable when the waters actually extend to such mark.** Doemel v Jantz **, 180 Wis 225, 236; 193 NW 393 (1923).**

**14**Bay Harbor Co v Monroe City Council **, Walker Chancery Rep 155 (1843), the issue of public ownership of the Great**  **Lakes was addressed for the first time by a Michigan court.**

**In** La Plaisance **, the Court of Chancery addressed the state’s right to improve navigation in Lake Erie. The**  **Legislature had authorized the city of Monroe to build a canal connecting the River Raisin to the lake. The harbor**  **company brought suit to enjoin the project, claiming that the canal would divert so much water from the river that**  **its downriver warehouses would be rendered inaccessible by boat. However, the court held that the harbor company did**  **not have a right to the flow of water in the river in its**  **natural bed because “[t]he public owns the bed of this class of rivers, and is not limited**  **in its right to an easement, or right of way only.”**  Id. **at 168. The court also noted that “with regard to our large lakes, or such**  **parts of them as lie within the limits of the state[,] [t]he proprietor of the adjacent shore has no property**  **whatever in the** land covered by the water of the lake **.”** Id. **(emphasis added). Moreover, it should be noted that before**  La Plaisance **, and before statehood, Michigan was part of the Northwest Territory, which was ceded to the**  **United States by Virginia in 1784. Under Virginia law, a**

**15 littoral owner held title to soil in tidewaters to the low**  **water mark.** Shively **,** supra **at 24-25. The understanding that the public’s interest under the**  **public trust doctrine is limited to the submerged lands of the Great Lakes was also expressed by Justice Champlin in**  **his concurring opinion in** Lincoln v Davis **, 53 Mich 375; 19 NW 103 (1884). In**  Lincoln **, a fisherman had placed stakes in Thunder Bay, off an island, in order to set some fishing**  **nets. The island’s owner removed the stakes, claiming that he had the exclusive right to fish in the waters off his**  **island. The** Lincoln **majority, while not discussing the boundary between littoral property and public trust**  **property, held that the owner had no right to interfere with the fisherman’s stakes. Justice Champlin noted that**  **“when [Michigan] was admitted into the Union this political jurisdiction devolved upon the State, and the title to the**  soil under the navigable waters **of the Great Lakes became vested in the State as sovereign to the same extent and for**  **the same reasons that the title of the bed of the sea was vested in the king.”**  Id. **at 384 (emphasis added). However, the state’s title only extends to the “**  low-water mark **.”** Id. **at 384-385 (emphasis added). In fact, according to Justice Champlin, “The paramount rights of the**  **public to be preserved are those of navigation and fishing,**

**16 and this is best accomplished by limiting the grants of**  **lands bordering on the Great Lakes to [the] low-water mark.”**  Id. **at 385-386. The United States Supreme Court defined the scope of**  **the public trust doctrine as applied to the submerged lands of the Great Lakes in**  Illinois Central I, supra **at 437. In** Illinois Central I **, the Illinois legislature had granted the railroad title to one thousand acres of submerged land**  **on Lake Michigan. Four years later, the Illinois legislature repealed this act and sought to quiet title to**  **submerged lands. The Supreme Court held that “the State holds the title to the**  lands under the navigable waters of Lake Michigan . . . **and that title necessarily carries with it control over the waters above them whenever the lands**  **are subjected to use.”** Id. **at 452 (emphasis added). Because the state’s public-trust title is a function of its**  **sovereignty, the lands covered by the doctrine cannot be alienated, except when such alienation promotes the public**  **use of them and the public use of the lands and waters**  **remaining is not harmed.** Id. **at 452-453. Just four years later, in**  People v Silberwood **, 110 Mich 103, 107; 67 NW 1087 (1896), this Court seized upon**  **the** Illinois Central I **explanation of the public trust doctrine to support its holding that the boundary between** 

**17 public trust lands and littoral lands is the low water**  **mark. In** Silberwood, **the defendant was convicted of cutting submarine vegetation on Lake Erie. The defendant**  **claimed that the owners of land lying adjacent to Lake Erie, including his employer who ordered removal of the**  **vegetation, owned the land to the center of that Great Lake, subject to the rights of navigation. The Court,**  **quoting** La Plaisance **, held that a littoral owner does not have any title in land covered by the Great Lakes.**  Id. **at 106.**  **The Court then noted that the** Illinois Central I **decision is in harmony with the doctrine laid down in the**  **early case of** La Plaisance Bay Harbor Co. **v.** Council of City of Monroe **, which I do not think has ever been overruled in this State so far as**  **it affects the rights of shore owners on the borders of the Great Lakes. This doctrine, too,**  **is in harmony with the decisions in all of the States bordering on these great seas. [**  Id. **at 108-109.]**  **Further, the Court noted that decisions of other Great Lakes states were in line with both**  La Plaisance **and** Illinois Central I **: The decisions in New York (**  Champlain, etc., R. Co. **v.** Valentine **, 19 Barb. 484 [NY Sup (1853)]), in Pennsylvania (**  Fulmer **v.** Williams **, 122 Pa. St. 191 [15 A 726 (1888)]), and in Ohio**  **(** Sloan **v.** Biemiller **, 34 Ohio St. 492 [1878]), all hold that the fee of the [littoral] owner ceases**  **at the low-water mark. [** Id. **at 107.]**

**18 This Court reaffirmed the pr**  **inciple that the public trust doctrine applies only to submerged lands in**  People v

Warner **, 116 Mich 228; 74 NW 705 (1898). At issue in** Warner **was ownership of a marshy island that was previously submerged under Saginaw Bay. The defendant claimed**  **ownership of the marshy island as an accretion to his adjacent island. In placing the boundary at the water’s**  **edge, the Court stated: The depth of water upon**  submerged land **is not important in determining the ownership. If**  **the absence of tides upon the Lakes, or their trifling effect if they can be said to exist,**  **practically makes high and low water mark identical for the purpose of determining**  **boundaries (a point we do not pass upon), the limit of private ownership is thereby marked. The**  **adjoining proprietor’s fee stops there, and there that of the State begins, whether the water be**  **deep or shallow, and although it be grown up to aquatic plants, and although it be unfit for**  **navigation. The right of navigation is not the only interest that the public, as**  **contradistinguished from the State, has in these waters. It has also the right to pursue and take**  **fish and wild fowl, which abound in such places; and the act cited has attempted to extend this**  **right over the lands belonging to the State adjoining that portion of the water known to be**  **adapted to their sustenance and increase. [** Id. **at 239 (emphasis added).] [16]** 

16 **The majority claims that when read “in context,”** Warner **does not recognize “a single boundary between the riparian owner’s title and state control . . . .”**  Ante **at 22 n 16. Specifically, the “context” relied upon by the**  **majority is** Warner’s **distinction between the state’s and the public’s interests in submerged lands. However, there**  **is no context under which** Warner **can reasonably be read to**

**19 The Court found that a connection between the marshy island**  **and the defendant’s island, which existed during times of low water, raised an issue of material fact. If the**  **connection was evidence that land washed up against the defendant’s island and that e**  **ventually caused the marshy island to rise from the water, then the defendant held**  **title to such land by accretion. However, if the island arose from the water first and only then began to extend**  **towards the defendant’s island, then title belonged to the state. In any case, the Court held that summary**  **disposition was inappropriate and remanded the case for a new trial.** 

**support the majority’s new rule of law. The passage cited by the majority comes directly after this Court’s holding**  **that the state holds title to all submerged lands, regardless of navigability. In justifying the state’s**  **title to lands “unfit for navigation,”** Warner **notes that the public has interests in those submerged lands above and**  **beyond a navigational interest, i.e., “the right to pursue and take fish and wild fowl . . . .” Further, in an**  **opinion replete with novel concepts of law, perhaps the most creative statement by the majority is that somehow the**  **phrase “[t]he adjoining proprietor’s fee** stops there **[i.e., where the water is], and**  there **that of the State** begins **” does not represent a single boundary. If the state’s title**  begins **at the point where the adjoining proprietor’s title** ends **, there can only be one boundary and, therefore, there cannot be an overlapping of titles as suggested by the**  **majority. Accordingly, and despite the majority’s claims to the contrary, this Court has explicitly “enshrined” a**  **solitary boundary between littoral lands and public trust lands for at least 107 years.** 

**20 One of the most thorough opinions addressing the**  **public trust doctrine was Justice Hooker’s concurring opinion in**  State v Lake St Clair Fishing & Shooting Club **, 127 Mich 580; 87 NW 117 (1901).**  **17 Justice Hooker began his**  **analysis by noting that the “title that Michigan took when it was admitted to the Union in**  **1836 is not limited to water sufficiently deep to float craft, but extends to the**  **point where it joins the ground of the [littoral] owner, ‘whether the water be deep or shallow, and although it be**  **grown up to aquatic plants and unfit for navigation.’”** Id. **at 586, quoting** Warner, supra **at 239. Likewise, the title of the abutting littoral owner extends to the shoreline.**  Fishing & Shooting Club, supra **at 587. Thus, “when the water in the lakes stands at**  low-water mark, **. . . the title [is] in the State, and all land between low-water**  **mark and the meander line belongs to the abutting proprietor . . . .”**  Id. **at 590 (emphasis added). The common-law limitation of the scope of the public**  **trust doctrine was reaffirmed by this Court in** Hilt **. In**  **overruling the short-lived** Kavanaugh **cases, we held that “the purchaser from the government of public land on the** 

17 **Justice Hooker’s analysis of the public trust doctrine was subsequently cited with approval by the**  **unanimous opinion of this Court in** State v Venice of America Land Co **, 160 Mich 680, 702; 125 NW 770 (1910).**

**21 Great Lakes took title to the water’s edge.”**  Hilt, supra **at 206. We also noted that the waters of our Great Lakes commonly change the landscape surrounding them, by erosion**  **or deposits made by the water, in a gradual and imperceptible manner.**  Id. **at 219. In order to account for this constant change, the title of a littoral owner**  **“follows the shore line under what has been graphically called ‘a movable freehold.’”**  Id. **(citation omitted). The**  **title to land above the water’s edge is “‘independent of the law governing the title in the soil covered by the** 

**water.’”** Id., **quoting** Shively, supra **at 35. 18**  **To summarize, under the common law as it has developed in Michigan, when the water is at a low point, the state**  **holds title to the submerged land, including the wet sands, while title to unsubmerged land is in the littoral owner.**  Warner, supra; Fishing & Shooting Club, supra. **As the water level rises, the public gains the right to use the**  **entire surface of the lake up to the water’s edge-- the point at which wet sands give way to dry sands-- for public** 

18 Hilt **also noted that to hold otherwise would effectively cut the littoral owner off from the water,**  **thereby destroying the very characteristic that defines property as "littoral"-- its contact with the water.**  Hilt, supra **at 219.**

**22 trust purposes.**  Hilt, supra **;** Warner, supra. **Likewise, the littoral owner’s title follows the rise and fall of the** 

**waters. 19**  Id. **Accordingly, the boundary of the littoral owner’s title is the most landward of either the “low water**  **mark” or the current location of the water itself. 20**  **The**

19 **The majority misstates my position as “granting littoral landowners all property down to where unsubmerged**  **land ends, which [I] locate[] at the water’s edge, regardless of the terms of landowners’ deeds.”**  Ante **at 38 -**  **39. There is no basis for this statement. The**  **characteristic that defines property as “littoral” is its contact with the water.**  Hilt, supra **at 219. In other words, a property owner whose deed does not extend to the**  **water’s edge is not a littoral owner and, therefore, would have no more rights in unsubmerged property than any other**  **member of the public. Obviously, a property owner is only a littoral owner if the deed gives title to the water’s**  **edge, however the “water’s edge” may be described. For example, in the instant case, defendants’ deed states that**  **the “meander line of Lake Huron” forms part of the boundary of their property. As we held in**  Farabaugh v Rhode **, 305 Mich 234, 242; 9 NW2d 562 (1943), “the meander line of Lake**  **Michigan is a line of description and not one of boundary and that one owning to such meander line owns to the**  **water’s edge subject to accretion and reliction unless a contrary intention is expressed in the conveyance.” There**  **is no evidence of a contrary intention in this case and, therefore, defendants hold title to the water’s edge.** 

20 **The majority notes that this Court has identified “some ambiguity regarding whether the high or low water**  **mark serves as the boundary of the public trust.”** Ante **at 22, citing**  People, ex rel Director of Conservation v Broedell **, 365 Mich 201, 205-206; 112 NW2d 517 (1961).** Broedell **cited two cases with “language seemingly favorable to the high-water-mark theory.”**  Id. **at 206. One of those cases,**  Collins v Gerhardt, **237 Mich 38; 211 NW 115 (1926), defined the public trust doctrine as it applies to**  rivers **. The other case,**  Venice of America Land Co **,** supra **at 702, discussed the location of a certain island at the time of** 

**23 state’s public trust title, then, “begins [where the water**  **is], whether the water be deep or shallow . . . .”** Warner,
supra **at 239. 21**  **In rejecting this understanding, the majority’s opinion virtually ignores 162 years of case law, and**  **instead simply announces that “Michigan’s courts have adopted the ordinary high water mark as the landward**  **boundary of the public trust” doctrine.** Ante **at 21. Thus, according to the majority, unsubmerged land up to the “high**  **water mark” remains subject to the trust. To support its assertion, the majority cites with approval this Court’s**  **holding in** Peterman v Dep’t of Natural Resources **, 446 Mich 177, 198-199; 521 NW2d 499 (1994). In doing so, the** 
**statehood. If the island was completely submerged at statehood and only afterwards arose out of Lake St. Clair,**  **then the island belonged to the state. See, e.g.,** Warner, supra **. The Court noted that, during periods of high water, the island at issue was completely submerged. According to**  **the Court, Lake St. Clair experienced one such period of high water in 1837-1838. Therefore, because the island was**  **submerged land at the time of statehood and only arose out of the water afterwards, title to such property was in the**  **state.** Id. **Further,** Venice of America Land Co **expressly adopted Justice Hooker’s concurring opinion from**  Fishing & Shooting Club **. As argued earlier, Justice Hooker found that the boundary between a littoral owner’s property and**  **property held by the state in trust is the low water mark, at least at times of low water.** 

21 **The majority has interpreted the “water’s edge” principle as creating a “universal line along the Great**  **Lakes . . . .”** Ante **at 41. However, the water’s edge is not a “universal line,” but rather a dynamic boundary that**  **moves as the waters of the Great Lakes move.**

**24 majority fails to acknowledge that**  Peterman **did not address the public’s right to use property under the public trust**  **doctrine at all, 22**  **but rather addressed the** state’s **right to improve navigation under the navigational servitude.**  **23 We**  **began our analysis in** Peterman **by affirming that the “‘title of the [littoral] owner follows the shore line**  **under what has been graphically called "a moveable freehold.”’”**  Id. **at 192, quoting** Hilt, supra **at 219. However, we also found that such title is not absolute.**  **Rather, the state retains a navigational servitude on unsubmerged property landward of the water’s edge that may**  **again become submerged during periods of high water.**  **24 In**  **order to accommodate both the rights of the littoral owner**

22 **Even if** Peterman **did apply in the public trust context-- which it does not-- an examination of its holding**  **indicates a definition of the public trust doctrine far more in line with “low water mark” cases such as**  Alger **than with the “high water mark” cases cited by the majority.** 

23 **The majority argues that this decision “relied not simply on a ‘navigational servitude’ unique to that case**  **but rooted that ‘navigational servitude’ in the public trust doctrine.”**  Ante **at 21 n 15. However,** Peterman **specifically states that “plaintiffs' [littoral] rights are subject to the navigational servitude retained by the State**  **of Michigan.”** Peterman, supra **at 193-194.** Peterman **does not state that littoral rights are subordinate to the right**  **to fish and hunt or the right to walk. Rather, the Court limited its holding to the**  state’s **right to improve navigation.** 

24 **The federal government also retains a navigational servitude on the Great Lakes and the lands beneath them.** 

**25 and the potential use of unsubmerged land for navigation,**  **we determined that the littoral owner’s title is “a limited title . . . that is subject to the power of the state to**  **improve** navigation **.”** Peterman, supra **at 195 (emphasis added). That is, the state has the right to**  regulate **this unsubmerged land to ensure that the littoral owner does not**  **interfere with the public’s future right to use the land for navigational purposes when it again becomes covered by**  **the waters of the Great Lakes. Also, the state has the**  **right to take this unsubmerged land or otherwise take action inconsistent with the owner’s littoral rights**  **without giving due compensation to the littoral owner when it is necessary to make navigational improvements or when**  **the taking possesses an “essential nexus” to navigation.** Id. **at 201. However, just as in** Alger, **the public may only**

use **the land in question for navigational purposes 25**  when the land is covered by the waters of the Great Lakes.

25 **We have recognized fishing as an incident of the navigational servitude in inland rivers and lakes.**  Collins, supra **at 48-49. In** Collins **, we noted that the right to fish was limited to the stream itself and that “in**  **exercising this right people cannot go upon the uplands of riparian owners in order to gain access to the water. If**  **they do that they are guilty of trespass.”** Id. **at 49. See also**  Bott, supra **at 64-65, in which the servitude was**  **further limited.**

**26 Because the majority misapprehends the nature of this**  **limited title, it has misconstrued the importance of the “ordinary high water mark” as it is described in**  Peterman. **While recognizing the state’s right to improve navigation, we also sought to limit the property that could be**  **adversely affected by such improvements. To determine the scope of this limitation, we examined former MCL 281.952,**  **which was part of the Inland Lakes and Streams Act, as well as cases defining the scope of the public trust doctrine on**  **rivers, including** Grand Rapids Booming Co v Jarvis **, 30 Mich 308, 318-321 (1874) (holding that the public right of**  **navigation was confined to the stream itself and that its boundary was the line of ordinary high water), and**  Hall v Alford **, 114 Mich 165, 167-168; 72 NW 137 (1897) (noting that land alongside a river above the high water line could**  **not be taken without just compensation and due process). On the basis of our review of these authorities, we**  **determined that “‘the limit of the public’s right is the ordinary high water mark of the river.**  **[26] This means that** 

26 **We adopted the definition of “ordinary high water mark” from the Inland Lakes and Streams Act, former MCL**  **281.952(h).** Peterman, supra **at 198 n 29. That statute defined the mark as,** 

**27 the ownership of fast land**  **[27] is unqualified and not**  **burdened with [the state’s right to improve navigation].’”** Peterman, supra **at 198 (citation omitted)** . **Applying this rule of rivers to the Great Lakes, we held that destruction**  **of the littoral owner’s property above the “ordinary high water mark” was “an unconstitutional taking of property**  **without due process and just compensation.” 28**  Id. **at 200.**

**the line between upland and bottomland which persists through successive changes in water**  **levels, below which the presence and action of**  **the water is so common or recurrent that the character of the land is marked distinctly from**  **the upland and is apparent in the soil itself, the configuration of the surface of the soil, and**  **the vegetation.**

27 **“Fast land” is “property that is ‘above the high**   ** water mark of’ the stream, river, or other body of water** **that abuts the property.”** Peterman, supra **at 181 n 4, quoting 26 Am Jur 2d, Eminent Domain, § 192, p 873.** 

28 **The plaintiffs’ recovery in** Peterman **was not limited to compensation for the damage done to the fast lands. We**  **also concluded: While generally the navigational trust**  **permits the state to improve waterways without compensating for nonfast lands, the trust does**  **not grant blanket authority to destroy private property-- the loss of the property must be**  **necessary or possess an essential nexus to the navigational improvement in question. In the**  **instant case, no essential nexus existed between the construction of the boat launch and the utter**  **destruction of plaintiffs’ beach. The taking of the property served no public interest because**  **the ramp could have been built without destroying plaintiffs’ property. Thus, we affirm the trial** 

**28 Thus, contrary to the claims of the majority,**  Peterman **did not alter the rule of** Warner **and** Hilt **that the public’s right to use property under the public trust doctrine is**  **limited to submerged lands. Rather, the “ordinary high water mark” is simply the outside edge of property that may**  **either be regulated to preserve future navigational interests at times of high water or taken without**  **compensation for navigational improvements.** Id. **at 202. The majority fails to recognize that this Court’s holding**  **applied only to**  **the “public’s rights” under the** navigational servitude **. As a result, the majority unwarrantedly expands the scope of our holding in**  Peterman **to create new rights under the public trust doctrine, rights that were never contemplated in that case.** 

**II. M**  **ISDEFINITION OF L**  **ANDS WITHIN THE P**  **UBLIC T**  **RUST D**  **OCTRINE .**  **Even if the majority were correct in its understanding of the “ordinary high water mark,” which for the reasons**  **set forth I do not believe it to be, its definition of**  **lands encompassed by the public trust doctrine is**  **inconsistent with both the common-law scope of the public trust doctrine and the realities of the Great Lakes. The** 

**court's award of damages for the loss of plaintiffs’ property [i.e., the property below**  **the “ordinary high water mark”]. [** Id. **at 201 -**  **202.]**

**29 majority does not apply Michigan law, but instead, without**  **analysis or explanation, summarily adopts Wisconsin’s definition of the “ordinary high water mark,” which it**  **derives from a case involving a Wisconsin** river **. Further, while the majority admits that the “ordinary high water**  **mark” is a term used to define the scope of the public**  **trust doctrine in tidal waters, it fails to account for the fact that the Great Lakes have no true scientific low and**  **high water marks as exist on the seashore. Even given the majority’s attempt to graft this tidal-based term upon the**  **nontidal Great Lakes, its definition bears little resemblance to the common-law standard. In creating a new**  **definition of “ordinary high water mark” based on the portions of the common law of Wisconsin it finds amenable,**  **the majority fails to provide either lakefront property owners or the public with the slightest guidance in**  **understanding the lands in which the new rights granted to the public may be exercised.**  **The majority defines the “ordinary high water mark” as “‘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** 

**30 vegetation, or other easily recognized characteristic.’”**  **29**

Ante **at 27, quoting** Diana Shooting Club v Husting **, 156 Wis 261, 272; 145 NW 816 (1914). This definition is derived**  **from a State of Wisconsin case involving that state’s public trust doctrine as it applies to an**  inland river **. Why this court now finds it necessary to abandon Michigan**  **common law and replace it with Wisconsin’s common law, or at least those portions the majority finds persuasive, is**  **not explained. As the United States Supreme Court noted in** Shively, supra **at 26, the determination of what lands fall within the scope of the public trust doctrine is different**  **in each state. After reviewing the laws of several states, that Court remarked**  **that each State has dealt with the lands under the tide waters within its borders according to**  **its own views of justice and policy, reserving**  **its own control over such lands, or granting**

29 **The majority concludes that the boundary of the public trust doctrine is the “ordinary high water mark”**  **because the “lake has not permanently receded from that point and may yet again assert its influence up to that**  **point.”** Ante **at 27. Does the majority mean that the public has access to a littoral owner’s property that,**  **although currently dry, has been wet at some point in the past and**  may **again be wet some day in the future? If so, what is the relevant time frame to determine if the water**  **has permanently receded or not? Is it a day? Or a month? Or a year? Or a decade? Or since statehood? Or since the**  **retreat of the glaciers 14,000 years ago? The majority does not say. Further, how is a member of the public or a**  **property owner to ascertain whether lands in question “may yet again” become submerged? Again, the majority does not**  **say.**

**31 rights therein to individuals or corporations,**  **whether owners of the adjoining upland or not, as it considered for the best interests of the**  **public.** Great caution, therefore, is necessary in applying precedents in one State to cases arising in another. **[** Id. **(emphasis added).] The majority has failed to pay heed to the United**  **States Supreme Court’s advice in this matter. The majority has also failed to examine the Wisconsin public trust**  **doctrine in order to determine whether the policy reasons underlying the majority’s adoption of the Wisconsin**  **understanding of the “ordinary high water mark” is even compatible with**  Michigan’s **“views of justice and policy**

**. . . .”** Id. **Rather than conduct such a review, the majority concludes that this definition is apt because it**  **“has served another Great Lakes state for some hundred years and is in accord with the term’s limited development**  **in our own state.”** Ante **at 29-30. 30**  **However, even a cursory review of the Wisconsin cases cited by the majority suggests a rule more in line with the**  **decision of our Court of Appeals-- a decision unanimously rejected by this Court-- than the rule favored by the**  **majority. In** Diana Shooting Club **, a hunter had floated his**

30 **While the** Diana Shooting Club **definition has been used by Wisconsin for nearly one hundred years, the initial**  **express definition of the water’s edge principle in** Warner **predates the** Diana Shooting Club **rule by sixteen years.**

**32 boat into an area overgrown by vegetation for the purpose**  **of shooting wild ducks. The riparian owner claimed that, pursuant to its ownership of the soil beneath the river,**  **the members of its organization had the exclusive right to hunt in those waters. The Wisconsin Supreme Court**  **recognized the riparian owner’s title in the soil beneath the river, but also found that the waters themselves**  **“should be free to all for commerce, for travel, for recreation, and also for hunting and fishing, which are now**  **mainly certain forms of recreation.”** Diana Shooting Club,

supra **at 271. It ultimately held that: Hunting on navigable waters is lawful**  when it is confined strictly to such waters **while they are in a navigable stage, and between the**  **boundaries of ordinary high water marks. When so confined it is immaterial what the character of**  **the stream or water is. It may be deep or shallow, clear or covered with aquatic**  **vegetation. By ordinary highwater mark is meant 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. [**  Id. **at 272 (emphasis added).]**  **Thus, unlike the majority,** Diana Shooting Club **restricted public trust activity to the**  waters themselves **. Indeed, the Wisconsin Supreme Court confirmed this interpretation**  **in** Doemel v Jantz **, 180 Wis 225, 236; 193 NW 393 (1923),**  **noting that:**

**33 What was said in the**  Diana Shooting Club Case **on the subject of the rights of a hunter to pursue his game up to the ordinary high-water**  **mark, merely affirmed the public right to pursue the sport of hunting to the ordinary high-water**  **mark of a navigable river while the waters of the river actually extended to such mark.**  **[31] The Wisconsin Supreme Court later suggested that the**  Diana Shooting Club’s **definition of the ordinary high water mark also applied to the Great Lakes.**  State v Trudeau **, 139 Wis 2d 91; 408 NW2d 337 (1987).**  **32 In**  Trudeau **, a littoral owner along Lake Superior sought to build condominiums**  **within an area below the “ordinary high water mark” of Lake Superior. The littoral owner argued that the area in**  **question was not navigable and, therefore, he was entitled to use the lake bed. The Wisconsin Supreme Court**  **disagreed, reasoning that the state’s interest extended to**

31 Doemel **addressed the public trust doctrine as it applied to inland lakes. Interestingly, while the majority**  **claims that a case applying the public trust to rivers is perfectly legitimate to apply in the littoral context, it**  **concludes that** Doemel **is inapplicable, presumably because it applies to an inland lake.** 

32 **The majority observes that its new definition was also invoked in a footnote by the Wisconsin Supreme Court**  **in** R W Docks & Slips v State **, 244 Wis 2d 497, 510 n 2; 628 NW2d 781 (2001) (citing**  Trudeau, supra **, for the definition).**  Ante **at 28. However, the** R W Docks **case involved a claimed regulatory taking, based on Wisconsin’s**  **refusal to issue a dredging permit. The location of the ordinary high water mark was not at issue and the case did**  **not involve a question of public access to land within the public trust. Thus, the majority apparently is basing its**  **new rule on mere** dictum **from the decision of another state's Supreme Court.** 

**34 the “ordinary high water mark” of Lake Superior.**  Id. **at 103.**  **In discussing the “ordinary high water mark,” the court cited with approval the definition from**  Diana Shooting Club **. However, the court’s ultimate disposition in that case was to remand “for findings concerning those**  **portions of the site higher than 602 feet [above sea level, according to the International Great Lakes Datum], the**  **[ordinary high water mark] of Lake Superior.”** Id. **at 110. Thus,**  Trudeau **held that the “ordinary high water mark” is defined by the International Great Lakes Datum (“IGLD”)**  **level-- the very standard that has been unanimously rejected by the justices of this Court.**  **33 To summarize, none of the few Wisconsin cases cited by**  **the majority addresses the issue of whether the public has**

33 **The majority, apparently recognizing the vagueness of its definition of the "ordinary high water mark,"**  **observes, “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.”**  Ante **at 30. While the majority again cites**  Trudeau **as an example of how such a “question of fact” can be answered,**  ante **at 28 n 20, it neglects to note that**  Trudeau **adopted the International Great Lakes Datum (IGLD) definition of ordinary high water**  **mark.** Trudeau, supra **at 110. However, the majority has held that the Great Lakes Submerged Lands Act (GLSLA),**  **which also uses that datum, is** not **dispositive in defining the landward boundary of the public trust.**  Ante **at 14-19. Does the majority mean to suggest that, despite this**  **Court's holding that the GLSLA is not dispositive, the ILGD is still relevant in determining the location of the**  **ordinary high water mark for public trust purposes in this state? The majority does not say.** 

**35 a right to use currently unsubmerged land below the**  **“ordinary high water mark” for public trust purposes. Indeed, the Wisconsin public trust doctrine specifically**  **limits the public’s use of submerged lands to when those**  **lands are covered by the waters themselves. In addition, to the extent that the majority believes that**  Trudeau **makes the**  Diana Shooting Club **definition applicable to the Great Lakes, the majority fails to note that**  Trudeau **adopted the IGLD definition of the “ordinary high water mark” on the**  **Great Lakes.** Trudeau, supra **at 110. In determining the location of the “ordinary high water mark,”**  Trudeau **specifically relied on the following evidence: The DNR's area water management specialist,**  **Richard Knitter, testified that he determined the lake's OHWM [ordinary high water mark]**  **approximately one-half mile from the site at a protected location with a clear erosion line that**  **was free from excessive wave action. Knitter then determined that this site's elevation was**  **602 feet I.G.L.D. He transferred the elevation of the OHWM site to a number of points at the**  **project site and concluded that approximately half of the site was below Lake Superior's OHWM.**  **The developers' surveyor did not determine the OHWM of the site or Lake Superior. [**  Id. **at 106 -**  **107.] The court concluded that “[a]ny part of the site at or**  **below 602 feet I.G.L.D. is within the OHWM of Lake Superior and is therefore protected lake-bed upon which building is**  **prohibited.”** Id. **at 109. The presence of this single,**

**36 clear definition stands in stark contrast to the vague and**  **ever-changing, "fact-specific," “ordinary high water mark” newly promulgated by the majority. In contrast to the**  **Wisconsin Supreme Court, this Court expends its energies**  **explaining why our Great Lakes Submerged Lands Act (GLSLA), MCL 324.32501**  et seq. **, which relies upon the IGLD, is** not **dispositive in defining the landward boundary of the public**

**trust.** Ante **at 14-19. In stating that “we are persuaded to adopt [the**  Diana Shooting Club **definition of “ordinary high water mark”] to clarify a term long used but little defined in our**  **jurisprudence,”** ante **at 28, the majority adopts the law of another state, without much explanation as to why that law**  **has been chosen from among the laws of the fifty states or, even more significantly, why the law of**  any **other state is seen as necessary to replace the long-settled law of**  **Michigan. Further, the majority adopts only a part of the law of that other state, again without much explanation as**  **to why it has chosen to adopt only parts of that other state’s law. Finally, to compound this inexplicable**  **process, the majority fails to accord significant consideration to the manner in which the courts of the**  **other state have interpreted its own law, misconstruing in**

**37 the process even the few decisions to which it gives**  **consideration. Even absent the differences between Wisconsin and**  **Michigan law, the** Diana Shooting Club **standard was derived from the very different context of**  riparian **property. 34**  **Undeterred, the majority simply utilizes this standard without explanation of how it should be modified for**  **application on the Great Lakes. The result is a definition that is doubly vague, because the majority not only fails**  **to explain what kind of “distinct mark” is considered to be so “easily recognizable” that it can be allowed to**  **determine the limits of the public trust, but it also fails to provide any time frame for determining how “continuous”**  **the “presence and action of the water” must be in order to leave such a mark. The majority fails to define either of**  **these terms in a manner that will enable the public or**

34 **The majority observes that the** Diana Shooting Club **definition is not “far removed from meanings previously recognized in Michigan.”**  Ante **at 29. In support, the majority cites MCL 324.30101(i), a part of the current**  **version of the former Inland Lakes and Streams Act. However, the majority fails to acknowledge that this**  **statute** expressly states **that it does not apply to the Great Lakes. MCL 324.30101(f). I also assume that the**  **majority in characterizing its definition as "not far removed" from another definition-- that which, in fact, has**  been **the law of Michigan-- is acknowledging, albeit euphemistically, that it is adopting a new rule. The**  **majority alternates between the adoption of new rules and disclaiming that it has adopted such new rules.** 

**38 property owners to determine which lands are within the**  **public trust. What kind of “distinct mark” is sufficiently “recognizable” to bring unsubmerged land within the scope**  **of the public trust? Since it cannot be that point at which wet sands give way to dry sands-- the majority having**  **rejected the position of this dissent-- is this “distinct mark” a function of where the waves have deposited**  **seashells? Is it a function of where debris has been washed ashore? Is it a function of where some line of**  **vegetation can be identified? Or is it a function of where sand castles are no longer standing? The majority does not**  **say. Moreover, even if the public or the property owner could discern the relevant “distinct mark,” how would such**  **persons determine how “continuous” the “presence and action of the water” has been-- or indeed must be-- in leaving**  **such a mark. It cannot be limited to the “current ebb and flow of the waves,” as that t**  **oo is the position of this dissent which the majority rejects. How continuous then is**  **“continuous?” Is it a month, a season, a year, a century, or an epoch? Again, the majority does not say.**  **Moreover, the majority would apparently expand public access to private littoral lands even**  beyond **its new definition of the “ordinary high water mark.” The majority**  **states, “‘where the bank or shore at any particular place**

**39 is of such a character that it 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.’”** Ante **at 27-28, quoting** Diana Shooting Club, supra **at 272 (emphasis added). Does the majority intend by this to say that the public may now cross onto private littoral**  **property in order to determine** where **the new "ordinary high water mark" lies? If so, the**  **public would seem to have access to such property even beyond the "ordinary high**  **water mark." The only apparent limitation on the public’s right of access is that the "ordinary high water mark" must**  **be “difficult” to ascertain. Given that under the majority's new definition the "ordinary high water mark"**  **will never be anything** other **than difficult to ascertain-- and, as the majority admits, will generally constitute a**  **"question of fact”** ante **at 30-- there appears to be considerable potential for access by the public upon**  **private littoral lands even beyond the "ordinary high water mark." Still, the majority is indisposed to answer any of**  **the questions that are most dispositive in determining where private and public rights begin and end. In eventual**  **course, these questions, so indispensable to the**

**40 determination of individual property rights, will have to**  **be addressed by the Department of Natural Resources (DNR) with virtually no guidance from this Court.**  **In leaving such questions to the DNR, the majority adopts the premises of administrative law in the very**  **different realm of property law, by defining critical questions of property rights not in well-understood terms**  **that conduce toward specific bounda ries, but in language**  **drawn from the modern administrative process in which vague and empty terms are given meaning by regulatory agencies,**  **such as the DNR, with subsequent deferential review by the courts. This is a prescription for uncertainty, and**  **uncertainty is a prescription for litigation, and the majority with its eyes wide open has chosen to give**  **Michigan both. Further, the majority’s inclusion of unsubmerged lands**  **within the public trust because “the lake has not permanently receded from that point and may yet again exert**  **its influence up to that point,”** ante **at 27, conflicts with the traditional common-law definition of the public trust**  **doctrine. At common law, the high water mark was defined as “‘the line of the medium high tide between the springs** 

**41 and the neaps.**  **[35] All land below that line is more often**  **than not covered at high water, and so may justly be said, in the language of Lord Hale, to be covered by the ordinary**  **flux of the sea.’”** Borax Consolidated, supra **at 25, quoting**  Attorney-General v Chambers **, 4 De G M & G 206, 217; 43 Eng Rep 486 (1854).**  **36 High tides move with the moon as**  **it revolves around the Earth. At most ocean shores**

35 **The “spring tide” is defined as “the large rise and fall of the tide at or soon after the new or full moon.”**  **The “neap” tide is defined as “those tides, midway between spring tides, that attain the least height.”**  Random House Webster’s College Dictionary **(1997).**

36 **The majority asserts that I offer this as an “authoritative definition for ordinary high water mark” and**  **that somehow there is a tension between this definition and my criticism of the majority’s creation of new law in this**  **case.** Ante **at 41 n 33. That the majority does not recognize the English common-law definition of the ordinary**  **high water mark is not surprising given that its novel definitions of the term bear no resemblance. According to**  **the majority: [The] ebb and flow, thus reaching one point**  **on the shore at low tide and reaching a more landward point at high tide. The latter**  **constitutes the high water mark on a tidal shore. The land between**  this mark **and the low water mark is submerged on a regular basis, and so remains**  **subject to the public trust doctrine as “submerged land.” [**  Ante **at 20-21 (emphasis added).]**  **Thus, it appears that the majority takes the position that the public trust extends to the highest high tide.**  **However, as noted in** Borax Consolidated, **the ordinary high water mark is**  not **the highest high tide, but rather the medium high tide between the spring and neaps, which is**  **rarely exposed to the open air for more than twenty-four hours.** 

**42 throughout the world, two high tides and two low tides**  **occur every lunar day. 37**  **A typical seaport will alternate between high and low tides about every six hours. Thus,**  **while the ocean bed may be temporarily exposed to the open air during low tide, such land will again be submerged**  **during the next high tide. Because the land is continually being affected by the action of the water, it falls within**  **the scope of the English common-law doctrine, even when exposed to open air.**  **In contrast, tidal forces acting on the Great Lakes are of such a “trifling effect,”**  Warner, supra **at 239, that they cannot even be measured without precise instruments.**  **38 Thus, there is no**  **“high” or “low” water marks, as they are scientifically understood. Instead, lake levels are**  **affected seasonally by the natural operation of the hydrologic cycle, which includes precipitation,** 

37 **A lunar day is the time it takes for the moon to return to a point above the Earth: approximately twenty**  **** **four hours and fifty minutes. See definition of "day, lunar" at <http://www.ngs.noaa.gov/CORS**  **Proxy/cocoon/glossary/xml/D.xml> (accessed June 24, 2005).**

38 **According to the National Oceanic and Atmospheric Administration, spring tide in the Great Lakes is less than**  **2 inches (5 cm) in height. See <http://co**   ** ops.nos.noaa.gov/faq2.html> (accessed June 24, 2005).**

**43 evaporation, condensation, and transpiration.**  **39 During the**  **winter, the air above the lakes is cold and dry, compared to the relatively warm temperature of the lake. As a**  **result, the amount of water that evaporates into the air exceeds the water vapor that condenses back into the lakes.**  **Any precipitation that falls on the lands surrounding the lakes is in the solid form of snow, and, thus, is not**  **returned to the lake via runoff. As a result, more water leaves the lake than enters it in this season, resulting in**  **a decline in lake levels. 40**  **As snow begins to melt in the early spring, runoff into the lakes increases. Further, as**  **temperatures increase, the warm, moist air above the relatively cold lakes limits evaporation to an amount less**  **than the rate of condensation. As a result, average water**

39 **See, generally, United States Army Corps of Engineers and the Great Lakes Commission,**  Living with the Lakes **(1999), pp 13-18. This publication may be accessed at <http://www.glc.org/living/> (accessed June 24, 2005).** 

40 **According to the United States Army Corps of Engineers, the lowest average lake level from 1918 to 2003**  **occurred as follows: Lake Superior (March, 601.21 feet above sea level); Lakes Michigan and Huron (February,**  **578.48 feet above sea level); Lake St. Clair (February,**  **573.43 feet above sea level); and Lake Erie (February,**  **570.8 feet above sea level). See**  **<http://www.lre.usace.army.mil/greatlakes/hh/greatlakeswate rlevels/historicdata/longtermaveragemin-maxwaterlevels/>**  **(accessed June 24, 2005).**

**44 levels rise throughout the spring and eventually peak**  **during midsummer. 41**  **These natural phenomena suggest the unworkability of placing the public trust boundary at the “ordinary high**  **water mark” as it is defined by the majority. If the “ordinary high water mark” is defined as a static boundary,**  **then the public trust doctrine would include unsubmerged lands that are only covered by the water on an infrequent**  **basis. Under the English common-law definition, such lands should be treated in a manner similar to lands covered by**  **the spring tides, i.e., they are not subject to the public trust doctrine. If the “ordinary high water mark” is**  **defined as a floating boundary, then it becomes nearly impossible for either a beach user or a littoral property**  **owner to determine where the boundary is located. To account for the hydrologic cycle, the “ordinary high water**  **mark” would need to be redefined on a monthly or seasonal basis. Further, the boundary would have to be readjusted**  **on a year-by-year basis to account for long-term changes to**

41 **According to the United States Army Corps of Engineers, the highest average lake level from 1918 to 2003**  **occurred as follows: Lake Superior (September, 602.23 feet above sea level); Lakes Michigan and Huron (July, 579.43**  **feet above sea level); Lake St. Clair (July, 574.77 feet above sea level); Lake Erie (June, 571.95 feet above sea**  **level).** Id.

**45 lake levels caused by weather fluctuations. Since 1918,**  **the Great Lakes have experienced three periods of extremely low water levels, in the late 1920s, mid-1930s, and mid**  **** **1960s. Periods of extreme high water were experienced in the early 1950s, early 1970s, mid-1980s, and mid-1990s.**  **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” in**  **1926 would have been in a completely different location than the point reached in 1986. Likewise, that point in**  **February of each year would be a completely different location than the same point in July of each year. Thus,**  **any definition of 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” must vary depending on**  **what method is used to calculate that level. 42** 

42 **For example, on Lake Huron, the average yearly level of the lake in 2003 was 577.07 feet above sea level. The**  **average yearly level of the lake from 1918 to 2003 was 578.94**  **feet above sea level. The monthly average for June 2003 was 577.43 feet above sea level. The monthly average**  **for the month of June, from 1918 to 2003, was 579.33 feet above sea level.** 

**46 The majority’s “ordinary high water mark” also fails**  **to account for changes to the location of the waterline caused by events unrelated to lake levels. First, wind and**  **barometric forces can raise water at one end of the lake, causing a dip in water level at the opposite end. If the**  **forces raising the water on one end suddenly cease, the entire lake may move in a see-saw fashion, alternatively**  **rising and falling on each end in a “pendulum-like” movement. This phenomenon, called “seiche,” can last from**  **minutes to hours to days. Second, ice or foreign bodies such as plants may block the normal flow of rivers and**  **channels connected to the Great Lakes, thereby causing an increase or decrease in the water level of connected lakes.**  **Finally, most of the Great Lakes basin is rising, as the Earth’s crust slowly rebounds from the removed weight of**  **the glaciers that covered the area around 14,000 years ago. Because the glaciers were thickest in the northern part of**  **the basin around Lake Superior, this region is rebounding at a faster rate, nearly twenty-one inches a century, than**  **the rest of the basin. As a result, the Great Lakes are “tipping” in a way that causes water increasingly to pool**  **in the southern portions of the Great Lakes basin. The shoreline is receding in the northern basin and advancing**  **in the southern basin. Thus, while the “ordinary high**

**47 water mark” makes sense in tidal waters, it does not make**  **sense in the nontidal Great Lakes because of the irregular nature of lake level fluctuations.**  **Further, the majority’s new definition fails to account for those times when the waters of the Great Lakes** 

**go** beyond **the “ordinary high water mark,” assuming that such an event could even occur under the majority's new**  **definition. The majority justifies its new rule, on the basis of this Court's statement in**  Peterman, supra **at 198, that “‘the limit of the public's right is the ordinary high**  **water mark . . . .’” (Citation omitted.)** Ante **at 40. However, the majority also states that the public trust**  **doctrine serves to protect “the waters of the Great Lakes and their submerged lands . . . .”**  Ante **at 31. Thus, when the water’s edge is beyond the “ordinary high water mark,”**  **there is a conflict between the majority’s stated limit of the public right to the “ordinary high water mark” and its**  **inclusion of submerged lands within the public trust. Is a property owner or a member of the public to understand that**  **use of submerged lands between the “ordinary high water mark” and the water’s edge is forbidden? Does this mean**  **that a member of the swimming or walking public is trapped within the Great Lakes until the water recedes to the**  **“ordinary high water mark?” How does a member of the**

**48 public or a property owner determine where the “ordinary**  **high water mark” is in such a circumstance? Does limiting public access to a submerged "ordinary high water mark"**  **conflict with our holding in** Warner, supra **at 239, that the public trust begins where the water is, “whether the water**  **be deep or shallow”? Or is the majority’s reliance on**

Peterman **somehow silently qualified to apply only when water levels on the Great Lakes lie below the “ordinary**  **high water mark”? The majority again does not say. By contrast, limiting the public’s right of access to**  **the “water’s edge,” i.e., the point at which wet sands give way to dry sands, addresses all of the various forces at**  **work on the lakes and is consistent with the common-law definition of the high water mark. First, the “water’s**  **edge” principle reflects the dynamic natural forces at work on the Great Lakes. As the waters of the Great Lakes move,**  **so too does the area where wet sands give way to dry sands. The littoral property owner’s title, and with it his or her**  **littoral rights, including the right of exclusive possession, follows the movem**  **ent of the water. 43**  **As we**

43 **However, as noted in** Peterman, supra **at 193-198** , **the littoral owner’s rights are subject to regulation by the**  **state. See e.g., MCL 324.32503 (prohibiting filling or altering land below the statutorily defined high water mark**  **without a permit), MCL 324.32512 (prohibiting certain acts**

**49 explained in**  Warner **, the littoral property owner’s rights end where the water is “whether the water be deep or**  **shallow, and although it be grown up to aquatic plants, and although it be unfit for navigation.”**  Warner, supra **at 239.**  **At that point, the state’s public trust title begins.** Id. **As correctly observed by the DNR, the area “where the water is” includes the wet sands where the waters of the**  **Great Lakes have marked their current and continuous presence. Because by definition such sands are infused**  **with water, the wet sands fall within the definition of “submerged lands.” As a result, the “water’s edge” is the**  **point at which wet sands give way to dry sands. The water’s edge marks the boundary between submerged and**  **unsubmerged lands. 44**  **This position is consistent with the position of the defendant littoral owners in the instant**  **case. Contrary to plaintiff’s expressions of concern that**
**of waterway maintenance without a permit), and MCL 324.32512a (prohibiting mowing or removing vegetation**  **except as permitted by the DNR).**

44 **The majority claims that I would “grant an exclusive right of possession to littoral landowners . . . down to**  **where unsubmerged land ends, which [I] locate[] at the water’s edge . . . .”**  Ante **at 38. A significantly more precise statement of my position is that the littoral**  **landowner has the right of exclusive possession to unsubmerged land, while the public has the right to use**  **submerged land under the public trust doctrine. The water’s edge, i.e., where the wet sands give way to dry**  **sands, where submerged land meets unsubmerged land, marks the limit of each of these rights.** 

**50 she would be forced to walk in the water, as a member of**  **the public she has always had the right to walk along the wet sands abutting the Great Lakes. Because the wet sands**  **are submerged lands, a littoral owner has never had the right to prevent a member of the public from using such**  **lands. While I agree with the DNR’s inclusion of the wet**  **sands as submerged lands, the DNR reaches the same erroneous conclusion as the Court of Appeals, namely that**  **the littoral owner holds title only to the “ordinary high water mark.”**  **45 This interpretation apparently is based on**  **the following passage from** Hilt, supra **at 226: The riparian owner has the exclusive use of**  **the bank and shore, and may erect bathing houses and structures thereon for his business or**  **pleasure (45 C.J. p 505; 22 L.R.A. [N.S.] 345;** Town of Orange **v** . Resnick **, [94 Conn 573, 578; 109 A 864 (1920)]); although it also has been held**  **that he cannot extend structures into the space between low and high-water mark, without consent**  **of the State (** Thiesen **v.** Railway Co **, 75 Fla. 28 [78 South. 491; L.R.A. 1918E, 718]). And it has**  **been held that the public has no right of passage over dry land between low and high-water mark but**  **the exclusive use is in the riparian owner, although the title is in the State.**  Doemel v Jantz **, [** supra **].**

45 **The DNR’s position is consistent with the Attorney General’s opinion in 1978 noting that title to property**  **between the high water mark and the water’s edge remains in the state, but the right of exclusive use remains in the**  **littoral owner. OAG, 1977-1978, No 5,327, p 518 (July 6, 1978).** 

**51 However, this statement from**  Hilt **does not represent a conclusion of this Court. Rather, it is cited as part of**  **this Court's response to the notion that** Kavanaugh **“gave the State substantially absolute title . . . to the upland**  **or to use them for any public purposes.”** Id. **at 224. In rejecting this theory as a ju**  **stification for maintaining** Kavanaugh **, we noted that the “title” conferred to the state in**  Kavanaugh **was confined “to the same trust which applies to the bed of the lake, i.e., that the State has title in**  **its sovereign capacity and only for the preservation of the public rights of navigation, fishing, and hunting.”**  Id. **Thus, “the right of the State to use the bed of the lake, except for the trust purposes, is subordinate to that of**  **the riparian owner . . . .”** Id. **at 226, citing** Town of Orange, supra **at 578. To support this point,** Hilt **noted that “it has been held that the public has no right of**  **passage over dry land between low and high-water mark but the exclusive use is in the riparian owner, although the**  **title is in the State.”** Hilt, supra **at 226, citing** Doemel **. This demonstrates that**  Hilt **was not adopting the rule from**  Doemel **, but rather was using that case to demonstrate that**  Kavanaugh **did not give unlimited title to the state and, therefore, that the title granted to the state by**  Kavanaugh **was not a valid basis for maintaining the meander**

**52 line as a boundary. Thus, the only basis for holding that**  **the state holds title to unsubmerged land up to the so**   ** called high water mark is to misunderstand the importance** **of** Hilt **’s reference to** Doemel **. It is clear that when** Hilt **said that a littoral owner’s title goes to the water’s edge, it**  meant **“water’s edge.” Likewise, when** Warner **said that the state’s title begins where the water is, it**  meant **“where the water is.” Second, the “water’s edge” principle is consistent**  **with the common-law definition of the high water mark. 46**  **At common law, the area of medium high tide would seldom be**  **dry for more than twenty-four hours at a time.** Lorman v
Benson **, 8 Mich 18, 29 (1860). In other words, the land at or below medium high tide was generally covered by the**  **ocean during the daily tidal cycle. Therefore, this tidal land was considered “waste land” that was “‘not capable of**  **ordinary cultivation or occupation.’”** Id. **at 28-29**

46 **Although I do not agree that the “wet sands area” as it applies to the public trust doctrine is equivalent to**  **the “ordinary high water mark” as it applies to the navigational servitude, at least one commentator has**  **observed that the “wet beach” is the area “between ordinary**  **high watermark and ordinary low watermark.” Pratt** , The legal rights of the public in the foreshores of the Great Lakes, **10 Mich Real Prop Rev 237, 237 (1983). According to this commentator, the “high water mark” and the “water’s**  **edge” are, for all practical purposes, the same in the nontidal Great Lakes.** 

**53 (citation omitted). Similarly, in the instant case, the**  **wet sands are being inundated with water by the current ebb and flow of the waves. However, when lake levels**  **fluctuate, any land that is no longer subject to the ebb and flow of the waves becomes unsubmerged land, which is**  **suitable for “ordinary occupation” and, therefore, as with lands affected by the spring tides, is not within the scope**  **of the public trust doctrine. Finally, the “water’s edge” principle is significantly**  **more workable than the majority’s “ordinary high water mark.” A member of the public can, by simple observation,**  **without the use of "aerial photographs, government survey maps . . . and stereo [three-dimensional] photographs,"** 

ante **at 28 n 20, determine where he or she is allowed to use land without seeking the**  **littoral owner’s permission. 47** 

47 **The majority claims that the “water’s edge” principle provides no greater “clarity” than its new rule**  **and that the “water's edge” standard constitutes a “charade of clarity.”**  Ante **at 41-42. The reader might wish to ponder this assertion. On the one hand, the traditional**  **standard for delineating between public and private lands-- the standard that I would retain-- requires merely that a**  **person be able to distinguish between wetness and dryness, between wet sands and dry sands, between where there is**  **water and where there is not. Even a Supreme Court justice, I would submit, should be reasonably able to draw**  **such distinctions. Contrast this to the majority’s test that would require a person to locate “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** 

**54 When the waters recede, land that is no longer subject to**  **the current ebb and flow of the waves will become unsubmerged land and, therefore, will again be under the**  **exclusive control of the littoral property owner. In conclusion, as we noted in**  Warner, supra **at 239, although in dictum, the absence of tides “practically makes**  **high and low water mark identical for the purpose of determining boundaries [along the Great Lakes].” The**  **“water’s edge” principle recognizes this reality by defining the rights of both the littoral property owner and**  **the public in terms of the actual location of the water. This definition is consistent with the natural forces at**  **work on the Great Lakes; it is consistent with the common**   ** law scope of the public trust doctrine; it is consistent** **with historical practice in Michigan; and it creates a public trust area that can readily be identified. The**  **majority has presented no reason why this longstanding rule no longer represents a reasonable balance between the**  **competing interests at issue in this case. Yet, the**
**by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.” The majority does not**  **even** attempt **to offer guidance to the public or property owners as to the meaning of this standard. Rather, the**  **majority suggests that expert witnesses will be able to identify this mark by using “aerial photographs . . ., the**  **government survey maps, the site’s present configuration, and stereo [three-dimensional] photographs . . . .”**  Ante **at 28 n 20.**

**55 majority discards this clear standard, which has operated**  **for most of the history of our state to create harmonious relations between the public and littoral property owners,**  **and replaces it with an unknowable standard of its own invention that requires littoral property**  **owners and the public to guess where the “ordinary high water mark” is**  **located.**

**III. M**  **ISUNDERSTANDING OF J**  US P RIVATUM **/** J US P UBLICUM **The majority’s determination to apply what it has defined as the “ordinary high water mark,” despite a lack**  **of foundation in Michigan law, appears to be rooted in its fundamental misunderstanding of the distinction between the**  jus privatum **and** jus publicum **. The majority notes, correctly, that the title to the submerged lands of**  **navigable waters is bifurcated; with the** jus publicum **safeguarding the rights to the public and the** jus privatum **safeguarding private property rights, subject always to the** jus publicum **.** Nedtweg v Wallace, **237 Mich 14, 20; 208 NW2d 51 (1927). However, rather than limit application of the**  **doctrine to** submerged **lands, the majority instead holds that**  any **conveyance of lakefront property consists solely of the**  jus privatum **, with the state’s** jus publicum **title including unsubmerged lands up to the “ordinary high water**  **mark.” I disagree, and instead believe that the** jus

**56**publicum **applies only to the submerged lands of the Great Lakes.**  **The distinction between** jus privatum **and** jus publicum **was first addressed by this Court in** Lorman, supra **. In**
Lorman **, a former lessee of property abutting the Detroit River claimed that he had a**  **right to use and maintain a boom constructed in the water.**  **48 Under the English common**  **law, private title to the bed of a navigable river was determined by whether the river was subject to the ebb and**  **flow of the tides.** Lorman, supra **at 26-27. However, regardless of who held the**  jus privatum **, the private owner’s rights were limited to those uses that would not**  **interfere with “the public easement of navigation[.]”** Id. **at 27. In tidal rivers, the** jus privatum **was subject to the public’s “right of navigation over the whole bed of the**  **stream at high tide, and over the water, so far as it was practicable, at all tides.”**  Id. **at 27-28. However, the public’s rights too were not without limit. First, the**  **public’s rights did not extend to land “not commonly submerged by the average ordinary high tides, which would**  **seldom leave any of the shore dry more than twenty-four**

48 **A “boom” is defined as “a chain, cable, etc., serving to obstruct navigation.”**  Random House Webster’s College Dictionary **(1997).**

**57 hours at a time.”**  Id. **at 29. Second, the public’s use of the**  jus publicum **was limited to “water rights,” i.e., the right of navigation and fishing.**  Id **. at 30. No matter who held title to the river bed, the public’s right to use the**  **river was always limited to the water itself. Because the former lessee sought to use the Detroit River for purposes**  **other than navigation or fishing, the Court determined that the former lessee’s use was not superior to that of the**  **riparian owner and, therefore, the riparian owner could bring an action for trespass.**  **The limitation of the** jus publicum **to use of the water itself was also expressed by this Court in**  McMorran Milling Co v C H Little Co **, 201 Mich 301; 167 NW 990 (1918). 49**  **In** McMorran Milling **, a dredger entered into a contract with the riparian owner for the right to remove sand from the** 

**49 The majority cites Justice Campbell’s**  dissenting **opinion in** Sterling v Jackson **, 69 Mich 488, 506-507; 37 NW 845 (1888), in support of its**  jus privatum **/** jus publicum **analysis.** Ante **at 11. The** Sterling **majority observed that title to the river bed belongs to the riparian owner, but**  **that such title is limited by the public’s right of navigation.**  Sterling, supra **at 500. However, the public’s rights in that case were limited to “using the waters of**  **the bay for the purpose of a public highway in the navigation of [the defendant’s] boat over it . . . .”**  Id. **at 501. Aside from the right of navigation, all other uses of the river bed belonged exclusively to the riparian**  **owner.** Id **. In other words, the riparian owner’s** jus privatum **was limited only by the uses** expressly **allowed under the**  jus publicum, **i.e., the right of navigation.** Id.

**58 river bed. The federal government, concerned that such**  **dredging would adversely affect navigation, ordered the dredger to cease operation. After the dredger complied**  **with this order, the riparian owner brought suit demanding the dredger continue to pay for the right to remove sand.**  **This Court began its analysis by noting that the riparian owner “holds the naked legal title [the**  jus privatum **], and with it he takes such proprietary rights as are consistent**  **with the public right of navigation [the** jus publicum **], and the control of congress over that right.”**  Id. **at 314 (citation omitted). Thus, the riparian owner’s title is**  **“‘held at all times subordinate to such use of the** submerged lands and of the waters flowing over them **as may be consistent with or demanded by the public right of**  **navigation.’”** Id. **at 310 (emphasis added; citation omitted). The Court concluded that the dredger was evicted**  **from the river bed by the government, which on the basis of its right to protect navigation had superior title over the**  **riparian owner. Therefore, the riparian owner was not entitled to further payment after the date of eviction.**  Id. **at 318. Unlike rivers and inland lakes, the state holds both**  **the** jus privatum **and** jus publicum **title to the submerged lands of the Great Lakes.**  Nedtweg, supra **. In** Nedtweg **, the**

**59 state sought to lease several thousand acres of relicted**  **land abutting Lake St. Clair that were considered submerged in law.**  **50 In order to do so, the Legislature passed**  **legislation authorizing long-term leases of such land to**  **private individuals. The Department of Conservation refused to enter into such leases, arguing that the**  **submerged-in-law land was held in trust for the public and could not be conveyed. We noted that the title to**  **submerged land is bifurcated between the** jus publicum **and the**  jus privatum **.** Nedtweg, supra **at 17. The State may not, by grant, surrender such**  **public rights any more than it can abdicate the police power or other essential power of**  **government. But this does not mean that the State must, at all times, remain the proprietor of, as**  **well as the sovereign over, the soil underlying navigable waters. [**  Id. **] In other words, the state may convey the**  jus privatum **in submerged Great Lakes land, as long as that conveyance does not interfere with the public’s “rights of navigation,**  **hunting and fishing.”** Id. **at 18. The Court noted that, because the land in question was now dry land, it was no**  **longer suited for the purposes protected by the** jus publicum **.** Id. **at 22. In other words, contrary to the majority’s understanding, while the “submerged” lands in** 

50 Nedtweg **was decided during the reign of the** Kavanaugh **cases.**

**60 question were still**  part **of the public trust, the lease was permissible because there was no interference with the**  uses **protected by the public trust doctrine. 51**  **To summarize, under the common law as it has developed in Michigan, the**  jus privatum **is held by either the adjoining property owner (in the case of rivers or inland**  **lakes), or by the state itself (in the case of the Great Lakes). In either case, the**  jus privatum **title is held subject to the public’s rights under the**  jus publicum **. However, the public’s**  jus publicum **rights are limited to use of the waters themselves.**  Lorman, supra **;** McMorran Milling, supra **. Further, the** jus publicum **only protects the public’s right to use private property for specific**  **purposes, such as navigation, fishing, and hunting.** Nedtweg, supra **. There are no cases that support the majority’s view that the**  jus publicum **extends beyond the water’s themselves to includ**  **e unsubmerged land.** Lorman,
supra **at 29. On the Great Lakes, the overlap between** jus privatum **and** jus publicum **would only come into play when the Legislature conveyed a portion of the submerged lands**  **to a third party. Because, as argued previously, the**

51 **The majority claims that the lands at issue in** Nedtweg **were “set[] apart from the public trust.”** Ante **at 27.** 

**61 littoral owner’s title never extends past the wet sands,**  **unsubmerged land between the wet sands and the “ordinary high water mark” is simply not, and has never been, part of**  **the** jus publicum **. IV.**  **Q UESTIONS**  **R AISED BY**  **M AJORITY**  **O PINION**  **Questions directly raised by the majority's departure from the longstanding status quo in our state include the**  **following: 52**  **(1) Are there property tax consequences to the fact**  **that the exclusive rights of littoral property owners would now extend not to the water’s edge, but only to the**  **“ordinary high water mark”?**

52 **The majority maintains that this case “raises none of the questions that [this dissent] poses,” while, of**  **course, choosing to answer none of these questions.** Ante **at 44. The majority is mistaken if it believes that it can replace settled law in Michigan with a selective part of**  **the law of another state-- indeed the least clear part of that other state's law-- and create a new legal**  **relationship between littoral property owners and the public, all the while avoiding giving rise to new legal**  **questions and generating litigation. Each of the questions set forth in this section, as**  **well as a great many more that neither I nor the majority can anticipate, will be**  **introduced into the legal system as a direct result of the majority’s opinion. This opinion will be subject to**  **cryptanalysis for many years to come and will produce litigation and dispute where up to now there has been none.**  **Perhaps equally troubling, when clarity in the law is once again established in the area of littoral property rights--**  **many years from now, and only after what is likely to be an unnecessary period of fractiousness and contention-- it**  **will likely come as a function of** administrative determinations of private property rights.

**62 (2)**  **Given that the majority has expanded the lands subject to the public trust doctrine, will there be a**  **corresponding expansion of uses that are considered “inherent in the exercise of traditional public trust**  **uses”? That is, given that the public trust now encompasses dry land up to at least the “ordinary high**  **water mark,” are there new uses of these lands that arguably can be connected to traditional public trust uses?**  **(3) Given that there are always more members of the**  **public who may wish to use a property in a particular manner than there are property owners, what permanent**  **protections exist to ensure that the Department of Natural Resources, as a political institution, will not seize upon**  **the vagueness and lack of definition of the majority opinion increasingly to broaden the “public trust” at the**  **expense of littoral property rights? (4)**  **What are the implications of the majority's opinion for the rights of other littoral property owners on**  **lakes other than the Great Lakes, whose properties also afford access to recreational opportunities for the public?**  **(5) Given the majority’s conclusion that “the public**  **trust doctrine serves to protect resources,” what are the implications of the majority’s opinion for the rights of**  **non-littoral property owners, whose properties abut or have**

**63 an impact upon state lands used by the public for**  **recreational purposes?**

**V. C**  **ONCLUSION I would not alter the longstanding status quo in**  **Michigan, and I, therefore, dissent. The majority has altered this status quo by: (1) redefining the lands**  **subject to the public trust doctrine on the basis of Wisconsin’s definition of the “ordinary high water mark”;**  **and (2) holding for the first time that the use of unsubmerged lands is permitted by the public trust**  **doctrine. The majority fails to identify any defects in the**  **present rules of this state, rules that have endured since statehood, that would justify its departure from the**  **“water’s edge” principle in favor of unclear rules of its own design. The present rules have created a reasonable**  **and harmonious balance between the rights of the public and the rights of littoral property owners. Under these rules,**  **the littoral owner’s title follows the shoreline, i.e., where the wet sands give way to the dry sands, wherever**  **this may be from time to time. Because the boundary is**  **dependent on the natural condition of the Great Lakes, it is easily identifiable, thus, creating a practical and**  **workable rule. The public’s legal right to use private**

**64 property along the shores of the Great Lakes should remain,**  **as it has always been, within this realm. The critical flaw in the majority’s decision making is**  **that it creates new law, not on the basis of the millions of amicable interactions that occur each year between the**  **public and lakefront property owners, but instead on the basis of the single aberrational dispute in this case. In**  **the place of a stable and well-understood law that has worked well for more than a century and a half to define**  **the rights of the public and littoral property owners and to minimize litigation, the majority, in reaction to the**  **present dispute, finds it necessary to introduce a range of novel concepts into Michigan property law. Apart from**  **lacking any basis in present Michigan law, these concepts are essentially undecipherable. Thus, in an area of the**  **law in which stability and clarity are paramount, the majority offers rules that are obscure and that will be**  **subject to evolving definition by environmental regulatory agencies. Almost certainly, these new rules, in**  **conjunction with the majority’s disinclination to define the critical aspects of these rules, will lead to an**  **escalation in the number of disputes between members of the public and property owners along the Great Lakes. In the** 

**65 place of harmony, there will be litigation.**  **53 In the place**  **of unobstructed beachfront, there will be fences. Five hundred cases from now, and after the expenditure of**  **enormous litigation costs and legal resources, Michigan, if it is fortunate, will once again reach the state of**  **equilibrium that it enjoys today and that it has enjoyed for many decades under current law.**  **I would affirm the result of the Court of Appeals, reverse that portion of the Court of Appeals opinion giving** 

53 **In the end, it will not be surprising if the day-to**   ** day rights of the public even to beach-walk-- the** **ostensible triggering concern of this case-- were to be diminished by the majority’s decision. For, in the place**  **of a rule in which property rights are clearly defined and protected, and in the place of a regime in which most**  **littoral property owners have easily accommodated the public’s interest in activities such as beach-walking, the**  **majority creates a far more uncertain rule, one in which property rights have become more ambiguous and uncertain,**  **and more subject to political regulation and definition.**  **Just as some members of the public are likely to become more assertive in their claim of a “right” to use the**  **property of another, so too will some property owners become more assertive in purporting to “defend” their**  **properties from the encroachments of such persons. At least some of these owners can be expected to assert their**  **property rights in circumstances where today this has been thought unnecessary. It may well be that a legacy of the**  **majority opinion is the proliferation of fences along the beaches of the Great Lakes. Fences and more fences. As a**  **result of the majority’s decision to replace clearly understood and longstanding rules of private property**  **rights with new rules in which the public trust is to be expanded in an uncertain manner, the rights of both the**  **public and the property owner will likely become less well protected.** 

**66 the state title to land below the “ordinary high water**  **mark,” and reaffirm the longstanding principle of** Hilt **that the littoral property owner’s title extends to unsubmerged**  **land and the public’s legal rights under the public trust doctrine extend to the submerged lands, including the wet**  **sands. 54**  **Stephen J. Markman**

54 **Because I agree with the majority that the GLSLA does not establish the boundaries of the public trust, I**  **concur in part II(A) of the majority opinion.**

**67**