COA holds public trust rights rule along lakeshore

December 7, 2016

When a private property owner’s land deed overlaps with that of the public trust along Lake Michigan, the rights to the shore are controlled by the common law public trust doctrine, the Indiana Court of Appeals found Wednesday in a landmark decision that prevents private property owners from exerting complete control over lakeshore land between ordinary high- and low-water marks.

In Don H. Gunderson, et al. v. State of Indiana, et al., 46A03-1508-PL-1116, Don and Bobbie Gunderson argued, that as owners of three lots along the shore of Lake Michigan in Long Beach, they had the right to exclude members of the public from accessing their land for activities such as walking along the beach.  In April 2014, Don Gunderson filed a motion for declaratory judgment and quiet title against the state, claiming that he owned all the land to the water’s edge and that the public had no rights to any land not covered by water. The Alliance for the Great Lakes and Save the Dunes and the Long Beach Community Alliance filed motions to intervene, both of which were granted.

Don Gunderson moved for summary judgment in October 2014, and the state and intervenors filed cross-motions. The trial court eventually ruled against Gunderson and found that the Gundersons owned the land up to the northern border of Section 15 while the state held in public trust the land below the ordinary high water mark. Further, the trial court held that the Gundersons “cannot unduly impair the protected rights and use of the public when the titles to the land overlap.”

Gunderson appealed and the COA heard arguments in September. Gunderson argued that he “paid for his property and as such has the right to exclude others.” Although state statute provides the state with full power and control over all freshwater lakes in Indiana, that same statute excludes Lake Michigan, a fact Gunderson said proves that there is no public trust doctrine applicable to his land.

But Judge Melissa May wrote for the unanimous panel Wednesday that the exclusion of Lake Michigan from the statute does not mean that there are not public trust rights on the Lake Michigan shore and, thus, the rights to the shore are controlled by the common law public trust doctrine.

Further, May wrote that “granting lakeshore owners the right to exclude the public from land between the low and high water marks would be inconsistent with the public trust doctrine because, under that doctrine, a state holds the title to the beds of navigable lakes and streams below the natural high water mark for the use and benefit of the whole people.”

Instead, May wrote that any land below the ordinary high water mark must be open to limited public use, such as gaining access to public waterway or walking along the beach, and that the ordinary high water mark is defined by common law. Therefore, subject to the public’s rights up to the ordinary high water mark, the northern boundary of Gunderson’s property, which overlaps with the public trust, is the ordinary low water mark.

Thus, the appellate court affirmed the trial court’s findings regarding the nature and scope of the public trust as it relates to Lake Michigan, but reversed the finding that the northern boundary of Section 15 is unknown.


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