Glass v. Goeckel, Docket No. 126409. COA No. 4.

• Decision Date: 29 July 2005
• Docket Number: Docket No. 126409. COA No. 4.
• Citation: 703 N.W.2d 58,473 Mich. 667
• Parties: Joan M. GLASS, Plaintiff-Appellant, v. Richard A. GOECKEL and Kathleen D. Goeckel, Defendants-Appellees.
• Court: Michigan Supreme Court

703 N.W.2d 58

473 Mich. 667

Joan M. GLASS, Plaintiff-Appellant, v. Richard A. GOECKEL and Kathleen D. Goeckel, Defendants-Appellees.

Docket No. 126409. COA No. 4.

Supreme Court of Michigan.

Argued March 8, 2005.

Decided July 29, 2005.

Weiner & Burt, P.C. (by Pamela S. Burt), Harrisville, MI, for the plaintiff.

Braun Kendrick Finkbeiner P.L.C. (by Scott C. Strattard), Saginaw, MI, for the defendants.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and S. Peter Manning and Sara R. Gosman, Assistant Attorneys General, Lansing, MI, for amici curiae the Department of Environmental Quality and the Department of Natural Resources.

Butzel Long (by James A. Gray III), Detroit, MI, for amici curiae Michigan Land Use Institute.

John William Mulcrone, Lansing, MI, for amici curiae Michigan Senate Democratic Caucus.

Allan Falk, P.C. (by Allan Falk), Okemos, MI, and Nancie G. Marzulla, Washington, D.C., for amici curiae Defenders of Property Rights.

Smith, Martin, Powers & Knier, P.C. (by David L. Powers), Bay City, MI, for amici curiae Save Our Shoreline and Great Lakes Coalition, Inc.

Frank J. Kelley and Kelley Cawthorne, Lansing, MI, for amici curiae Representatives Brian Palmer, Daniel Acciavatti, Fran Amos, Richard Ball, Rick Baxter, Darwin Booher, Jack Brandenburg, Tom Casperson, Leon Drolet, Edward Gaffney, John Garfield, Robert Gosselin, Kevin Green, Dave Hildenbrand, Jack Hoogendyk, Joe Hune, Rick Jones, Roger Kahn, Philip LaJoy, David Law, Jim Marleau, Tom Meyer, Leslie Mortimer, Neal Nitz, John Pastor, Phil Pavlov, Tom Pearce, John Proos IV, David Robertson, Tonya Schuitmaker, Rick Shaffer, Fulton Sheen, John Stahl, John Stakoe, Glenn Steil, Shelley Taub, Barb Vander Veen, and Lorence Wenke, and Senator Jim Barcia.

Mika Meyers Beckett & Jones P.L.C. (by Fredric N. Goldberg, William A. Horn, and Ronald M. Redick), Grand Rapids, MI, for amici curiae Michigan Chamber of Commerce, National Federation of Independent Business Legal Foundation, Michigan Bankers Association, and Michigan Hotel, Motel, and Resort Association.

Chris A. Shafer, Lansing, MI, for amici curiae Tip of the Mitt Watershed Council.

Noah D. Hall, Ann Arbor, MI, for amici curiae National Wildlife Federation and Michigan United Conservation Clubs.

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 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 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. This "public trust doctrine," as the United States Supreme Court stated in Illinois Central R. Co. v. Illinois, 146 U.S. 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 N.W. 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 N.W.2d 337 (1987) (citation omitted).⁴ Consequently, although defendants 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 lake-shore 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 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.

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 N.W.2d 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, 683 N.W.2d 719. 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, 683 N.W.2d 719. 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, 688 N.W.2d 91 (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 N.W.2d 817 (1999). In a motion under MCR 2.116(C)(8), "[a]ll well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant." Maiden, supra at 119, 597 N.W.2d 817. As we stated in Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 47, 457 N.W.2d 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,...