SHERIFF'S CORNER: "I enjoy long walks on the beach..."
Recently, it sure seems like spring is in the air. The sudden increase in temperatures, the melting of the snow and the changing of the clock, has made us all anxious for the upcoming warmer season.
With that in mind, this reminded me of a question I received from a local business owner a few months ago: "What part of the shoreline can the public walk on in regard to a lake?" Being that we are in "Lake' County," what better to talk about than lakes?
In this edition of the "Sheriff's Edition," I address the laws relating to beaches, shorelines and lakes.
First we have to establish that there is a difference between the Great Lakes and inland lakes in relation to this topic. Recent case law has determined that the public is allowed to walk the shoreline or privately owned beaches of the Great Lakes under public domain with some restrictions.
Glass vs. Goeckel
In 2001, a case was filed in Alcona County Circuit Court when neighbors were sued for denying the right to walk the beach directly in front of the other neighbors property which was located on Lake Huron. The Alcona judge ruled that property owners could not restrict access to the water's edge, hence allowing it to be traveled by the public.
In May 2004, the Michigan Court of Appeals reversed that decision, stating that Lake Huron property owners own to the water's edge and have the right to prohibit access.
In 2005, the appellate court decision was appealed to the Michigan Supreme Court, which ruled that the general public may use a Great Lakes' beach below the ordinary "high-water mark." The court defined this as “the point on the bank or shore up to which 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.”
This was furthermore affirmed when the U.S. Supreme Court refused to hear a similar case, Gunderson vs. State of Indiana, where a property owner challenged Indiana state law regarding where the public is allowed to walk on privately owned sections of a beach on Lake Michigan.
Different rules apply to privately owned beaches or waterfronts located on natural inland lakes, rivers or streams. An owner deeded inland waterfront land owns the exclusive use of the beach or waterfronts included in the deed. Unless there is a recorded easement or other permission, neighbors and the general public cannot walk along the shore.
Some inland lakes do have public rights-of-way, walkways, road ends or access sites which allow limited public access to the lake. This is only within the boundaries of the public domain and does not take away the rights of private property owners.
The Public Trust Doctrine means that the state protects the lands in trust for certain public uses, even if they’re privately owned. This doctrine allows the public the use water and submerged land regardless of neighboring private property ownership, because the water and submerged land are held in the public trust. The neighboring property owners do not own the water or the land under the water. However, they do have unlimited access to the water, a concept known as “Littoral Rights.” This allows for private property owners to build structures, such as a dock, with the proper permit or license.
Although certain statutes and case law have defined what a private lake is for a very limited purpose, there is no concrete definition as a whole.
One thing that has been affirmed. An inland lake with no public access site and is entirely surrounded by private property, would be considered a private lake and members of the public have no rights of access to the lake by private land. However, the state owns all the water under doctrine. So, if someone were to drop from a helicopter, then was later picked up by the helicopter and never touches private land, legally, that would be permissible, even on a private lake.
Many of our lakes have public road ends that allows the public to gain access to an inland lake. These have limited uses and prohibitions under the law.
"(1) A public road end shall not be used for any of the following unless a recorded deed, recorded easement, or other recorded dedication expressly provides otherwise:
(a) Construction, installation, maintenance, or use of boat hoists or boat anchorage devices.
(b) Mooring or docking of a vessel between 12 midnight and sunrise.
(c) Any activity that obstructs ingress to or egress from the inland lake or stream.
(2) A public road end shall not be used for the construction, installation, maintenance, or use of a dock or wharf other than a single seasonal public dock or wharf that is authorized by the local unit of government, subject to any permit required under this part. This subsection does not prohibit any use that is expressly authorized by a recorded deed, recorded easement, or other recorded dedication. This subsection does not permit any use that exceeds the uses authorized by a recorded deed, recorded easement, other recorded dedication, or a court order.
(3) A local unit of government may prohibit a use of a public road end if that use violates this section.
...(b) "Public road end" means the terminus at an inland lake or stream of a road that is lawfully open for use by the public."
In 2012, a law was enacted that explains how road ends can be used and developed. The public should work with their local road commission and neighboring property owners to prevent conflicts over use of the road end and ensure public access to the water.
FISHING ON PRIVATE LAKES
It depends on what type of private lake it is. There are two examples: those with a connection to public waters and those with no connection.
If the private lake has a tributary, stream, creek or other connection with public waters which fish are able to migrate to or from for any period of time during any time of year, then the private lake is property of the state and the fish may only be taken in accordance with the law.
If the private lake has no connection with public waters then the fish are considered private property and are not subject to legislative regulation that dictates methods of fishing, closed seasons, creel limits and minimum sizes. However, possession of fish off the premises from which taken, if contrary to law, are subject to sanctions.
This information is provided to you for clarification of specific laws, and not legal advice. This is not to be construed as a personal opinion, agreement or disagreement of any specific law.
If you have any questions on any specific topic, you can always email me your questions to firstname.lastname@example.org.
As always, it is a honor serving and working for all of you who live, visit and work in Lake County. Working together, we can make a difference.