Editorial: Preserve beach access
Published March 15th, 2005
BODIES of water, whether lakes, rivers, the Great Lakes,
or the oceans, are public recreation resources that should
be enjoyed by all who obey the laws and respect private
property. However, because not everyone is fortunate enough
to own waterfront property, the public's right of access
to the narrow strip of land between the normal high-water
mark and the water's edge must be protected.
A case testing that proposition is now before the Michigan
Supreme Court, and it will be watched by property owners
and the public in Ohio and many other states as well.
In Michigan the presumption has been that people can stroll
along the Great Lakes shoreline as long as they respect
lake front owners' privacy by staying near the water's
Speaking for state government, Attorney General Mike
Cox, supports beach walkers, urging the court to allow
access to the public in beach ares where wave action has
created "wet sand or soil."
In Ohio some lawmakers have attempted to strip the state
Department of Natural Resources of its control over public
access areas along Lake Erie and to allow lake front property
owners to fence off or otherwise deprive beach walkers
of such access. This is a distorted version of the argument
against "takings," defined as regulations or
actions of state authorities to limit property owners'
If a lake lies entirely on private land, that might be
one aspect of this complex issue. But most property owners
hold tracts of varying sizes on larger bodies of water
that are the property of the public, which is free to
swim, fish, or engage in other water recreation.
This strongly implies access to the narrow strip of beach
at the water's edge that has long been defined as public.
The doctrine going back some 14 centuries in common law,
and stemming from the Roman code of Justinian in the 6th
century, holds that property owners own neither the beach
nor the water in front of their property.
To suppose otherwise creates an almost impossible situation.
Lake property owners, like any member of the public, would
be quick to appeal to public agencies to prevent discharges
of pollutants into the water in front of their homes or
public beaches, and no sensible person would regard such
bodies of water as the "property" of those who
happen to hold title to lots or tracts adjoining them.
Some cities and states, including parts of Florida and
Hawaii, are sensitive to the public-access issue. Ohio
lawmakers, responsive to vocal groups of property owners,
have sought to accommodate their desires to fence off
beach property or place other obstacles in the way of
walkers. It is intolerable that in the Great Lakes states
of Michigan and Ohio, public access to beaches should
be restricted because of misguided and often misleading
efforts by property owners, and we believe the Michigan
Supreme Court should strongly rule in that direction.
What has been done in years past cannot readily be undone.
But if we were to start over again, it would be inconceivable
that a property owner would be allowed to put up no-trespassing
signs on the beach or shoreline of what is so evidently
a public, not a private, resource.