No Right to Walk between High Water Mark and Water’s Edge

Glass v. Goeckel, 2004 Mich. App. LEXIS 1229 (Mich. App. May 13, 2004).

Stephanie Showalter, J.D., M.S.E.L.

In May 2004, a Michigan Court of Appeals ruled that the general public does not have a right to traverse the shore of Lake Huron between the ordinary high water mark and the water’s edge. The court confirmed that in Michigan lakefront property owners have the exclusive right of use to the land running to the water’s edge, subject only to the public’s right of access for navigation.

Background
Richard and Kathleen Goeckel own land abutting Lake Huron in Alcona County, Michigan. In 2001, Joan Glass, a neighbor of the Goeckels, sued the Goeckels claiming they were denying her access to Lake Huron guaranteed by an express fifteen-foot easement across the Goeckels’ property “for ingress and egress to Lake Huron” contained in Glass’s deed. Glass presented evidence that the Goeckels were restricting her access to the Lake by parking cars in front of the entrance to the easement and refusing to trim tree branches along the easement. Glass also claimed that the Goeckels were interfering with her right to walk along the beach.

The parties eventually resolved their dispute regarding the express easement. The Goeckels agreed to prune the pathway to insure Glass unimpeded access to Lake Huron. Glass could also use the beach portion of the fifteen-foot easement for sunbathing and other recreational purposes. The Goeckels, however, continued to object to Glass’s use of the beach in front of their property. The trial court found for Glass, ruling that she has the “right to use the shore of Lake Huron lying below and lakewards of the natural ordinary high water mark for pedestrian travel.”1 The Goeckels appealed the decision of the trial court.

Public Access to Lake Huron
The Goeckels argued that, as riparian owners, they have the exclusive right to use the land up to the water’s edge and can therefore prevent Glass and other members of the general public from walking above the water’s edge. The Michigan Court of Appeals agreed, holding that riparian owners have exclusive use of the dry land to the water’s edge, subject only to the public trust doctrine. Under the public trust doctrine, the state of Michigan holds title to the waters and the submerged lands of the Great Lakes within its borders in trust for the public.
According to the court, the dividing line between the public trust doctrine and riparian rights along Lake Huron is the water’s edge.2 Therefore, the Goeckels and other riparian owners have the exclusive right to use the dry land to the water’s edge. It is important to note, however, that the court held that this right of exclusive use does not correspond with actual ownership of the land. The land upon which Glass sought to walk had not always been dry land. The disputed strip emerged as the waters of Lake Huron receded.

The general rule is that “the title of the riparian owner follows the shoreline under what has been graphically called a ‘moveable freehold.”3 The reasoning of the court is not entirely clear, but it appears Michigan deviates from this general rule with regard to land formed by the recession of water. While riparian owners gain the right to use the land that emerges as the water level of Lake Huron falls, the actual title to the previously submerged land remains with the state.4 Riparian owners have the right to use the now-dry land and exclude others, but they do not own the land and they will lose the right of exclusive use when the waters rise.

This is an interesting interpretation of the public trust doctrine. In a majority of states, the public trust doctrine requires the state to hold navigable waters, the submerged lands underneath, and adjacent lands below the ordinary high water mark in trust for the public. Private individuals cannot own land below the high water mark or exclude the general public from that land. In Michigan, however, the state’s title to land below the high water mark is “subject to the riparian owner’s exclusive use, except as it pertains to navigation issues.”5 This interpretation is narrow, merely protecting the public’s right of access to the Great Lakes for navigation and not for fishing, recreation or other purposes.

Mich. Comp. Laws § 324.32502
Glass countered the Goeckels’ arguments by claiming that Mich. Comp. Laws § 324.32502 provides her with a statutory right to traverse the Goeckels’ property anywhere between the high water mark and the water’s edge. The court disagreed. The court held that § 324.32502 simply sets forth the rules of construction for Part 325 of the Michigan Natural Resources and Environmental Protection Act. Section 324.32502 identifies lands covered by the Act, provides for the state’s ability to sell and lease unpatented submerged lands, provides for the private and public use of waters over patented and unpatented lands, and preserves traditional riparian rights. This section, however, creates no substantive rights and “contains no provision guaranteeing any member of the public the right to walk on a beach fronting private property along one of the Great Lakes.”6

Conclusion
The Goeckels, as riparian owners, have the exclusive right to the use and enjoyment of the dry land to the water’s edge. Glass and other members of the general public have the right to use the lake bottom until it reaches dry land for the purpose of navigating Lake Huron.

This case is still moving through the Michigan courts. On June 24, 2004, Glass’s attorneys filed an application for leave to appeal with the Michigan Supreme Court. The Law Center will continue to track this litigation and share information as it becomes available via the web and other publications.

Endnotes
1. Glass v. Goeckel, 2004 Mich. App. LEXIS 1229 at *4 (Mich. App. May 13, 2004).
2. Id. at *23.
3. Id. at *16, citing Peterman v. Dept. of Natural Resources, 521 N.W.2d 499 (Mich. 1994).
4. Id. at *23.
5. Id.
6. Id. at * 27.