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Justices take up Lake Michigan shore property rights case

June 26, 2017

The Indiana Supreme Court will decide whether the beach of Lake Michigan belongs to the public or to private property owners along the shoreline.

Justices last week agreed to hear the appeal in a long-running dispute that’s attracted voluminous friend of the court briefs from public-access advocates and private-property rights groups.

The Indiana Court of Appeals ruled in December that the common law public trust doctrine applied to the shore of Lake Michigan between the water and the ordinary high-water mark. The ruling reversed in part a trial court ruling that aimed to define the ordinary high-water mark by administrative rule.

Justices on Thursday granted transfer in Don Gunderson, et al. v. State of Indiana, et al., 46S03-1706-PL-423. The Gundersons sought a trial court declaration that their deed to property in Long Beach entitled them to possess land and exclude people from walking on the shore above the water.

The case also is likely to set precedent establishing a line in the sand between public access and private property rights to the Indiana shore of Lake Michigan.

Justices also last week agreed to hear the appeal of a man who was convicted of possession of cocaine after a search that followed police finding him lying face-down and unresponsive on a sidewalk. William McNeal was convicted of the Level 5 felony count after police searched him when they learned he had an active warrant for his arrest.

The Court of Appeals in November affirmed McNeal’s conviction in light of the police’s “community caretake role.” The court found that neither the detention of an apparently intoxicated person nor the ensuing search violate McNeal’s rights under the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution.

But the justices on Tuesday struck down the extension of the community caretaking role to non-vehicle searches as outlined in the COA opinion.

Justices granted transfer for the week ending June 23 in just those two cases and denied transfer in 17 others. Indiana Supreme Court transfer dispositions may be viewed here.

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