Where Does Your Ohio Lakefront Property End and the Lake Begin?

Where does your Ohio lakefront property end and the lake begin? Or, in other words, how much of the lakeshore belongs to the public? The answers to these questions were recently provided by the Ohio Supreme Court in State ex rel. Merrill v. Ohio Dept. of Natural Resources, Slip Opinion No. 2011-Ohio- 4612.

Merrill and other property owners of Lake Erie lakeshore property filed a class action suit seeking a declaratory judgment regarding the extent of the State of Ohio’s property rights with regard to the lakeshore. Ohio Department of Natural Resources (ODNR) claimed that land extending inward from the lake to a “high water mark” established in 1985 by the Army Corps of Engineers falls under the State’s public trust authority. Based on this position of the ODNR, Merrill, trustee of the Ohio Lakeshore Group claimed the State of Ohio would, in effect be taking non-submerged lands of property owners without compensation (contrary to the Ohio Constitution). Some lakefront property owners had to lease land that was not under water, but under the artificial “high water mark setting”. ODNR claimed that any ruling other than one based on the “high water mark” would make it extremely difficult to maintain Ohio’s authority over narrow strips of land abutting the lake.

The trial court concluded that the public trust neither extended to the ordinary high-water mark nor terminated at a low-water mark argued by some property owners; rather, the trial court determined that the boundary of the public-trust territory is “a moveable boundary consisting of the water’s edge, which means the most landward place where the lake water actually touches the land at any given time.”

The Eleventh District Court of Appeals affirmed the trial court’s determination regarding a moveable water’s edge as the boundary, and also implied that artificial fill could modify that boundary.

In a unanimous decision, the Ohio Supreme Court held that “the territory of Lake Erie held in trust by the State of Ohio for the people of Ohio extends to the ‘natural shoreline,’ which is the line at which the water usually stands when free from disturbing causes” (such as storms or droughts). It reversed the Court of Appeals’ notion of a moving shoreline, and also reversed the appellate court’s implication regarding fill.

Most property owners were pleased with the decision, as well as the Court’s dicta regarding the need to continue its precedent of protecting individual property rights.

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