BODIES of water, whether lakes, rivers, the Great Lakes, or the oceans, are public recreation resources that should be enjoyed by all who obey the laws and respect private property. However, because not everyone is fortunate enough to own waterfront property, the public's right of access to the narrow strip of land between the normal high-water mark and the water's edge must be protected.
A case testing that proposition is now before the Michigan Supreme Court, and it will be watched by property owners and the public in Ohio and many other states as well. In Michigan the presumption has been that people can stroll along the Great Lakes shoreline as long as they respect lake front owners' privacy by staying near the water's edge.
Speaking for state government, Attorney General Mike Cox, supports beach walkers, urging the court to allow access to the public in beach ares where wave action has created "wet sand or soil."
In Ohio some lawmakers have attempted to strip the state Department of Natural Resources of its control over public access areas along Lake Erie and to allow lake front property owners to fence off or otherwise deprive beach walkers of such access. This is a distorted version of the argument against "takings," defined as regulations or actions of state authorities to limit property owners' "rights."
If a lake lies entirely on private land, that might be one aspect of this complex issue. But most property owners hold tracts of varying sizes on larger bodies of water that are the property of the public, which is free to swim, fish, or engage in other water recreation.
This strongly implies access to the narrow strip of beach at the water's edge that has long been defined as public. The doctrine going back some 14 centuries in common law, and stemming from the Roman code of Justinian in the 6th century, holds that property owners own neither the beach nor the water in front of their property.
To suppose otherwise creates an almost impossible situation. Lake property owners, like any member of the public, would be quick to appeal to public agencies to prevent discharges of pollutants into the water in front of their homes or public beaches, and no sensible person would regard such bodies of water as the "property" of those who happen to hold title to lots or tracts adjoining them.
Some cities and states, including parts of Florida and Hawaii, are sensitive to the public-access issue. Ohio lawmakers, responsive to vocal groups of property owners, have sought to accommodate their desires to fence off beach property or place other obstacles in the way of walkers. It is intolerable that in the Great Lakes states of Michigan and Ohio, public access to beaches should be restricted because of misguided and often misleading efforts by property owners, and we believe the Michigan Supreme Court should strongly rule in that direction.
What has been done in years past cannot readily be undone. But if we were to start over again, it would be inconceivable that a property owner would be allowed to put up no-trespassing signs on the beach or shoreline of what is so evidently a public, not a private, resource.
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