The littoral truth on beach walking
The Saginaw News
Posted on mlive.com on August 11, 2005
The state Supreme Court recently ruled, in a 5-2 opinion,
that Great Lakes shorelines are part of the public trust,
and that "littoral" or coastal landowners must
allow public access up to the "ordinary high water
The ruling is a victory for the public. The experience
of squeaking sand and ceaseless surf underfoot along a
Great Lake is a time-honored tradition for millions of
Michiganders, as well as the tourists who visit our shores
each summer. Losing that right would have curtailed one
of the unique attractions of living in or visiting Michigan.
Yet the majority's opinion, as dissenting Justices Robert
P. Young Jr. and Stephen J. Markman spell out, goes too
far by extending that "right" to the nebulous
"ordinary high water mark." Markman proposed
restricting access to what most of us would call the surf
zone -- the Great Lakes and their wet sands.
Most beach walkers saunter near the shoreline or in the
water. But, as lakefront property owners would tell you,
not every walker uses good sense and courtesy -- building
fires along the beach, camping out or overstaying their
welcome on what the high court agrees is private property.
Markman warned that using the "ordinary high water
mark" as the zone of public trust would create more
"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,"
Markman writes. "As a result of the majority's opinion
to replace clearly understood and long-standing rules
of private property rights ... the rights of both the
public and property owners will likely become less well
Markman and Young's definition better balanced the rights
of property owners with the joy of beach strolling. Using
the wet portion of the shore as the public trust limit,
rather than the "ordinary high water mark,"
would have offered a clearer answer than the court majority's
footprints in the sand.