Glass v. Goeckel

(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 replaces clear and well-understood rules — rules that have produced reasonable harmony over the. decades in *710Michigan— 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 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 692 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” *711in 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 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 evidence that the status quo has not *712reasonably 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 “declaring] 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 “[¡Judicial ‘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 (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 *713the 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 property owners, including businesses,5 have invested in reliance on present rules concerning the relationship between the public and lakefront property owners. This reliance on longstanding rules should have given the majority considerable pause before it altered the status quo and redefined the public trust doctrine.

This is not the first time this Court has upset settled rules of property on the Great Lakes, but the lessons of the first time do not seem to have been well-learned by the majority. Before the 1920s, property owners be*714lieved 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 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 lake-shores 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 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 *715by 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.

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 *716the 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 691 (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 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.

*717The 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 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, supra at 40. Thus, it cannot be said that the *718American 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 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 *719the 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 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 he 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 littoral owner held title to soil in tidewaters to the low water mark. Shively, supra at 24-25.

*720The 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, 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 neces*721sarily 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 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 right's 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 *722(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.]

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 ñsh 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]

*723The 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.

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 *724and 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 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 littóral 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 *725water’s edge — the point at which wet sands give way to dry sands — for public 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 state’s public trust *726title, 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 638. 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 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 *727analysis 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 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.

*728Because 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 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 *729property above the “ordinary high water mark” was “an unconstitutional taking of property without due process and just compensation.”28 Id. at 200.

Thus, contrary to the claims of the majority, Peter-man 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.

H. 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 *730reasons 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 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 vegetation, or other easily recognized characteristic.’ ”29Ante at 691, quoting Diana Shooting Club *731v 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 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 *732because 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 693.30

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 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