Source: West Michigan Commercial Development & Real Estate Quarterly
Earlier this year, the Michigan Supreme Court ruled that members of the public have the right to walk along the shores of the Great Lakes, even where a private landowner holds legal title to the water's edge. In Glass v. Goeckel, 473 Mich. 667 (2005), the Court noted that the rights of landowners have always been subject to the rights of the public under the public trust doctrine. The Court determined that Michigan's public trust doctrine permits walking along the shores of the Great Lakes, irrespective of a private landowner's title, "up to and including land below the ordinary high watermark." The Court defined the "ordinary high watermark" 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." The Court stated that the precise location of the ordinary high watermark at any given location remains a question of fact.
Although the Court created some clarity by ruling that the public trust doctrine specifically grants members of the public the right to walk along the shores of the Great Lakes, it also created the potential for disputes by identifying the "ordinary high watermark" as the boundary for such right. The Court's definition of the "ordinary high watermark" is very subjective and requires independent investigation. Subsequent courts will be required to determine which marks constitute "distinct marks" and which "distinct marks" are caused by the continuous presence or action of water. As noted in the majority opinion, the Great Lakes, unlike the oceans, are not significantly affected by lunar tides. Despite not being greatly affected by tides, the location of the water's edge of the Great Lakes is affected by precipitation, temperature, barometric pressure, and other forces that lack the regularity of tides. Because of the diverse and inconsistent forces affecting the water's edge of the Great Lakes, the "ordinary high watermark" at any particular location may be difficult to determine. In a concurring opinion, one justice stated that he would have limited the public trust doctrine to property located on the lakeside of the water's edge, including the wet sands. This justice asserted that the majority replaced a clear, long-standing "water's edge" rule with an essentially undecipherable "ordinary high watermark" rule.
The Court determined that the public has the right to walk along the shores of the Great Lakes. Unfortunately, the Court left us with a subjective standard for determining how far inland this right exists.
* * *
James J. Rabaut is a partner in our Grand Rapids office. He specializes in real estate transactions, including commercial construction projects, commercial lease negotiations, easements, commercial real estate sales and acquisitions and business condominiums. He serves as the Chair of the Firm's Real Estate Practice Group and may be reached at 616.752.2178. Warner Norcross & Judd is a full-service law firm with offices in Grand Rapids, Metro Detroit, Holland and Muskegon. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.