Public Trust Doctrine

There is a very old notion in the law called the "public trust" doctrine. It essentially states that the government holds certain things in trust for the public; that those things belong to the public and can't be sold by the government.

The doctrine, so far as I can tell, was initially applied in America when some prototypical Chicago politicians sold the lake bed underneath Lake Michigan to some cronies investors. Well, the issue has been a hot one in Indiana, and the Indiana Supreme Court recently addressed it in the matter of Gunderson, et al v. Indiana, et al.

The entire opinion is here, for those interested in reading it. A few interesting excerpts:

A century ago, our Court of Appeals recognized that, among those rights acquired upon admission to the Union, the State owns and holds “in trust” the lands under navigable waters within its borders, “including the shores or space between ordinary high and low water marks, for the benefit of the people of the state.”

Indiana “in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan.” 

That is the public trust doctrine, as Justice Massa so ably states.

 But the question remains: What is the precise boundary at which the State’s ownership interest ends and private property interests begin?

The nature of the dispute was that people who owned beachfront property on Lake Michigan didn't want people walking along the beach on "their" property. As Justice Massa asked, however, "Where does private property end and State property begin?"

Today, we hold that the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary. We therefore affirm the trial court’s ruling that the State holds title to the Lake Michigan shores in trust for the public but reverse the court’s decision that private property interests here overlap with those of the State.

That is the law in Indiana, as announced by the state Supreme Court. Here are a few more interesting quotes from the opinion:

The basic controversy here is whether the State holds exclusive title to the exposed shore of Lake Michigan up to the OHWM, or whether the Gundersons, as riparian property owners, hold title to the water’s edge, thus excluding public use of the beach.

For the record, OHWM stands for "ordinary high water mark." So, the question is whether property owners' rights extend to the water, or merely to the high water mark.

Here are some more interesting quotes. Please note, these are excerpts from the case. If you want to understand the matter fully, I suggest you contact an attorney.

At the conclusion of the American Revolution, the people of the original thirteen states, as successors to the Crown, “became themselves sovereign” and acquired “the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” Waddell’s Lessee, 41 U.S. (16 Pet.) at 410. Those states subsequently admitted to the Union, on an “equal footing” with the original thirteen, likewise acquired title to the lands underlying the waters within their boundaries that were navigable at the 8 time of statehood.

The State of Indiana, upon admission to the Union in 1816, acquired title to the shores and submerged lands of all navigable waters within its borders[.]

Shively acknowledged Congress’s authority to make pre-statehood “grants of lands below high-water mark of navigable waters” as necessary “to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states.” 152 U.S. at 48. But such grants are extremely rare[.]

A thorough examination of the authorities reveals that variations in characterizing equalfooting lands are simply alternative expressions of the same rule of law: lands on the waterbody side of the OHWM pass to new states as an incident of sovereignty, whereas lands on the upland 14 side of the OHWM are available for federal patent and private ownership.

Rather than positioning the OHWM at the water’s edge, early American common law defined that boundary as the point “where the presence and action of water are so common and usual . . . as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself.”

For anyone who was interested in a legalese-laden discussion about riparian rights, congratulations! Today's the day!