On the beach

12/14/2007

NEVER mind 15 centuries of legal precedent. A northeast Ohio judge has conjured up a view of property rights that could allow owners of homes and cottages along Lake Erie to keep the public off the dry sand out front.

The judge says his view is "distinctively American." We call it "distinctively selfish."

The decision, by Judge Eugene A. Lucci, of Lake County Common Pleas Court, gives unwarranted life to the elitist claim of lakefront property owners that they can prohibit what an age-old line of legal reasoning has established - the right to walk along Great Lakes shores in front of private homes.

"If people can keep their feet wet, they can walk the shore," Judge Lucci was quoted as saying following the ruling. "The public can wade along the beaches of Ohio because it's their water. But when they go on the land, it belongs to the landowner."

Since beach walkers often are stymied by docks, breakwalls, and other impediments, we believe the decision is unduly restrictive. It should be - and we hope it will be - knocked down on appeal. But it will have to be done by judges of a less activist stripe.

For starters, they might read a 2005 ruling by the Michigan Supreme Court. That court held that the right of the public "to walk along the shores of the Great Lakes" is protected by the doctrine of "public trust," dating to the 6th-century Roman Code of Justinian and preserved in English common law, upon which American jurisprudence was founded.

The doctrine holds that the state acts as trustee for natural resources such as lakes, which belong to the public, and protects public access. In Ohio, as in many other states, the point at which a property owner's dominion ends has been set at a federally recognized, surveyable spot known as the ordinary high-water mark. Typically, that leaves plenty of dry land for beach walkers.

But Judge Lucci ruled that lakefront property extends to the water's edge - even though that point can change as often as the wind shifts.

The decision came in a lawsuit filed by the Ohio Lakefront Group, an amalgam of conservative property-rights zealots, which objected to being required to lease from the state the land over which they built a dock or breakwall. Trolling for votes, Ted Strickland sided with the property owners during his successful 2006 campaign for governor. Last summer, Governor Strickland reversed the policy of past state administrations and dropped the lease requirement.

What the property owners really want, though, is the unmitigated right to keep people off the beach in front of their homes or cottages. This exclusivist proposition is popular in conservative "I've got mine" circles, but has generally not been favored by the courts - until now.

If the ruling is not reversed, it could mean "no trespassing" signs and walls and fences to deny access to this state's greatest natural resource. That would be wrong because the shore is not, and never has been, the sole domain of any of the 15,500 individuals fortunate or wealthy enough to own lake frontage.

The shore belongs to all of the people of Ohio, and they should be allowed to walk along it, on dry land, not just in the water.