_______________________________ 

 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Michael F. Cavanagh

Taylor Elizabeth A. Weaver Opinion Marilyn Kelly

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 littoral1

 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 

submersion2

 at a given moment defines the boundary of the 

public trust. Similarly, we cannot leave uncorrected the 

Court of Appeals award to littoral landowners of a “right 

of exclusive use” down to the water’s edge, which upset the 

balance between private title and public rights along our 

Great Lakes and disrupted a previously quiet status quo. 

Plaintiff Joan Glass asserts that she has the right to 

walk along Lake Huron. Littoral landowners defendants 

sea applies to our Great Lakes, see People v Silberwood,

110 Mich 103, 108; 67 NW 1087 (1896), citing Illinois 

Central R Co v Illinois, 146 US 387, 437; 13 S Ct 110; 36 L

Ed 1018 (1892), we will describe defendants’ property as

littoral property. Although we have attempted to retain

consistency in terminology throughout our discussion, we

will at times employ the term “riparian” when the facts or

the language previously employed so dictate. For example,

a littoral owner of property on the Great Lakes holds

riparian rights as a consequence of owning waterfront 

property. See Hilt v Weber, 252 Mich 198, 225; 233 NW 159

(1930). 

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. THE HISTORY OF THE PUBLIC TRUST DOCTRINE 

Throughout the history of American law as descended 

from English common law, our courts have recognized that 

the sovereign must preserve and protect navigable waters 

for its people. 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 courts 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 commonlaw 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. THE SCOPE OF THE PUBLIC TRUST DOCTRINE 

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. THE GREAT LAKES SUBMERGED LANDS ACT 

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 unpatented 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 purposes 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. THE PUBLIC TRUST DOCTRINE AS APPLIED TO THE GREAT LAKES 

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 highwater 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 proprietor’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 stating 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 [threedimensional] 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. THE PUBLIC TRUST INCLUDES WALKING WITHIN ITS BOUNDARIES 

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 matter 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 wellbriefed 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 walk 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,” ante 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 Commerce, 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 welllearned 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 within 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. MISUNDERSTANDING THE “ORDINARY HIGH WATER MARK” 

The majority concludes that the “ordinary high water 

mark” is the landward boundary of the public trust 

doctrine.10 While the majority 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 extends 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 principle 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 eventually 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 purposes25 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 highwater 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. MISDEFINITION OF LANDS WITHIN THE PUBLIC TRUST DOCTRINE. 

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 too 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 boundaries, 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 twentyfour hours and fifty minutes. See definition of "day,

lunar" at <http://www.ngs.noaa.gov/CORSProxy/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://coops.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 mid1960s. 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 movement 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 justification 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 socalled 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 commonlaw 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. MISUNDERSTANDING OF JUS PRIVATUM/JUS PUBLICUM 

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 include 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. QUESTIONS RAISED BY MAJORITY OPINION 

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. CONCLUSION 

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-today 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