12/10/2012. Ohio Presentation 2013 Kristopher M. Kline, P.L.S., G.S.I.

Transcription

1 Ohio Presentation 2013 Kristopher M. Kline, P.L.S., G.S.I. When one thinks about ownership of property along waterways, one may break down the impact of "navigability" in three separate categories: Great clarification here. (1) ownership of the bed of the waterway and geographic extent of the lands subject to the public trust easement; (2) the extent of federal regulatory jurisdiction (federal Commerce Clause jurisdiction); (3) rights of the public to use a waterway without ownership (floating, swimming, etc.). Federal law governs the first and second. But federal cases in later years have looked beyond boat navigation to evidence such as use of the waterway for transport of timber. By the act of April 28, A. D. 1800, Congress authorized the President "to execute and deliver letters patent in the name and on the behalf of the United States, to the governor of the state of Connecticut, for the time being, for the use and benefit of the persons holding and claiming under the state of Connecticut, their heirs and assigns, forever, whereby all the right, title, interest and estate of the United States, to the soil of that tract of land" * * * "including all that territory commonly called the Western Reserve of Connecticut and which was excepted by said state of Connecticut out of the cession by the said state heretofore made to the United States and accepted by a resolution of Congress of the fourteenth of September one thousand seven hundred and eighty-six. 1

2 The word soil was used for the purpose of showing that jurisdiction was not to be conveyed. Connecticut was required to cede "jurisdiction" to the United States. The state complied, and empowered its governor to accept the patent. Thus, while jurisdiction passed to the United States, ownership of soil -- land and water -- by express conveyance, sanctioned by the sovereign power, vested in the state, (represented by its governor) in trust for its grantees. The lines of the grant were defined with precision; the northwest corner being far out in Lake Erie, in latitude 42degrees 6'. The cession of the United States of the lands within the territory of which Ohio is now a part, was made subject to no condition with respect to navigable streams. But in the first frame of government, commonly called the ordinance, which is fundamental in its character, it is stipulated that navigable waters leading into the Mississippi and St. Lawrence, shall be common highways, and be forever free to all the people of the United States. The legislation of Congress, for the disposition of the lands, has strictly conformed to this stipulation. The lands within the beds of navigable rivers have not been sold to individuals as land to be paid for. And whether the rivers have or have not been made boundaries of surveys, the land usually covered by water has been deducted from that upon which the purchase money was charged. This, it is argued, is a fact conclusive to establish the position that the individual purchaser acquires no right to the bed of the river adjoining his lands. [However] It is, we conceive, vitally essential to the public peace and to individual security, that there should be distinct and acknowledged legal owners for both the land and water of the country. 2

3 It is not the intention of the United States to reserve an interest in the bed, banks, or water of the rivers in the state, other than the use for navigation to the public, which is distinctly in the nature of an easement, and all grants of land upon such waters are subject to the rule of the common law. He who owns the lands upon both banks, owns the entire river, subject only to the easement of navigation, and he who owns the land upon one bank only, owns to the middle of the river, subject to the same easement. The clause in the ordinance of 1787, for the government of the Northwestern Territory, declaring the navigable rivers therein "common highways, etc. without any tax, impost, or duty therefor," does not prohibit the states formed in that territory, from legislating respecting those rivers, or affecting their navigation, when their regulations subject equally their own citizens and the citizens of other states, to the inconvenience resulting from such legislation. The legislature of Ohio, in 1817, passed an act declaring the Cuyahoga River navigable, and at the same time prohibited, under severe penalties, all obstructions to the navigation of it. Whether the erection of a bridge will impede the navigation of the river over which it is thrown, must necessarily depend upon circumstances. It will, in some measure, depend upon the nature of the bridge which is to be erected, the particular situation where it is placed, and the kind of vessels which navigate the river. When a communication is thus established between the opposite banks of a stream, it is for the purpose of facilitating the travel and transportation upon the highway which leads to it: and if this highway should, as in the present instance, be one continued street, connecting two densely peopled towns, and binding them together as one community, it would not be right for the mind to fasten its attention exclusively upon one of these objects, 3

4 One reason, perhaps, why the navigation of the river is considered the primary, and the freedom of the highway as the secondary interest, is, that rivers are found traced upon the map of the country on its first settlement, while the road or the street is an artificial work, undertaken and abandoned, as the exigencies of society may require. It is a reason calculated l to impose upon the imagination, for the latter may acquire as great if not a greater importance than the first. The fact that the legislature, when they have declared a river navigable, have generally specified mill dams as an obstruction, can not be considered as evidence of an intention to except every other mode of impeding the navigation. At a very early period, even during our colonial condition, the citizens of different parts of the country were greatly harassed by the interfering regulations of the local governments. A difficult controversy once existed on this subject, between Connecticut and Massashusetts. The former state commanded the mouth of the Connecticut river, and imposed duties on boats from Massachusetts. And Massachusetts, in retaliation, laid an impost on all commodities exported to or from Connecticut. 4

5 It is sometimes difficult to determine what is the precise character of a stream. Rivers were once divided into navigable and not navigable. They are now generally divided into three classes, the two former, and a third partaking of the character of each of the others, and yet distinguishable from both. The act of 1817, however, must be considered d as affording unequivocal evidence of what was the intention of the legislature with regard to this stream. There are actually three categories rather than the two according to N.C. Case Law (Navigable v. Non-navigable) 1. Navigable by sea-going vessels (forming a link to navigation with other states in this case, underlying fee is generally held by the State of N.C. (in the case of rivers) 2. Non-navigable but still useful (from State v. Tyre Glen) is described as being All the rivers, creeks, and other water courses but which are, in fact, sufficiently wide and deep to be navigable by boats, flats and rafts, are technically styled unnavigable This category is considered navigable today, but underlying fee simple title was generally granted to private landowners by Right of Entry of original State Grant 3. rivulets, brooks, and other streams which cannot be used for navigation in any form these generally belong entirely to riparian landowners (subject to water use laws) The conclusion to which I have come is, that the clause in the ordinances contains a limitation on the power of the general government, as well as a prohibition to the states. Or if it is not divisible into two distinct parts, that then it contains throughout a prohibition to the states; that this prohibition restrains these states from passing laws which h should have the effect of regulating its commerce with other states, or from imposing discriminating duties on the citizens of other states, but does not prevent them from legislating concerning rivers which run exclusively within their own limits 5

6 Virginia only granted the territory on the northern bank of the river to low-water mark, although, by the compact of 1792, between Virginia and Kentucky, a concurrent jurisdiction over the river is accorded to Ohio and Kentucky. The Ohio is a navigable river; it would be so considered, even if it were not expressly declared to be such by the deed of cession. This, however, does not determine the question, for there are two kinds of navigable rivers. If we resort to the technical and legal definition of a navigable river, it is that part of the stream only where the tide ebbs and flows. The shore, below high-water mark, belongs to the public. But grants of lands, bounded on rivers, or upon the margins of the same, above tide-water, carry the exclusive right of the grantee to low-water mark, or, as some of the authorities say, to the center of the stream. None of our rivers, in the western country, are navigable in the technical acceptation of the term. They all fall within the second class. The distinction was originally made in order to define the jurisdiction of the admiralty courts. In Cooper v. Smith, 9 Serg. & R. 26, 32, it was held that the right to the bed of a navigable river, where the tide did not reach, was presumed to belong to the public, while the right to the shore belonged to the adjacent proprietor. And in Shrunk v. Schuylkill Navigation Co.,, 14 Serg. & R. 74,, it was decided that the owners of the soil adjacent to the large rivers, in Pennsylvania, do not own the bed of the river to the center. This appears to have been the settled law in Pennsylvania from a very early period. It has, in some measure, effaced the common law distinction between rivers navigable and not navigable. 6

7 All the authorities, however, as I before remarked, concur in giving the adjacent proprietor a right to the land between high and low-water mark in rivers which are unaffected by the tide. The plaintiff is, therefore, entitled to judgment. He who owns the land on both banks of such river owns the entire river, subject only to the easement of navigation, and he who owns the land upon one bank only, owns to the middle of the main channel, subject to the same easement. The right of the public is merely the right to use the water within the channel for the purposes of navigation. The proprietor of the lands upon its banks may use the waters, of the river in any way not inconsistent with the public easement, or of private rights, and neither the state nor any individual has the right to divert the water to his injury. The right of the adjacent proprietor to the water of the stream is a usufructory right, appurtenant to the freehold, not an absolute property. Hence the state, in its exercise of the right of eminent domain, can subject the waters of such stream to other public uses the same as any other private property, by making a just compensation for the injury, and not otherwise. 7

8 There is another matter to be considered before we come to the questions arising upon the pleadings, viz: the effect of a statute declaring an unnavigable stream to be navigable. It is worthy of remark, that in all the statutes of this description, enacted hitherto in Ohio, no provision is made for compensating the owners of the land, through which such small streams flow, for any injury which may accrue in consequence of thus converting their private property into public highways. There is no provision made for the purchase of the easement thus dedicated to the public use, or attempted to be created for the public use. Yet prior to the passage of these acts, the owners of the lands on both banks of such streams owned the streams and the right to use the water flowing in them, in any manner consistent with the rights of persons above and below them, without let or hindrance. They might erect dams or other obstructions to direct the water from the bed of the stream to any point of their premises, returning it to its natural channel after using it at their pleasure or convenience. A right of the owners of the lands on both banks of non-navigable streams to use the water flowing in them, in any manner consistent with the rights of persons above and below them, without let or hindrance, is a right of property within the protection of the constitution, and that can not be impaired by a legislative l enactment which h provides no compensation to the proprietor for the injury. although we deny to the legislature the power to change the private rights of the riparian proprietor by so doing, yet for all other purposes consistent with the provisions of the constitution, the statutes should be sustained 8

9 Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used [continued] in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction ti ti from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. If we apply this test to Grand River, the conclusion follows that it must be regarded as a navigable water of the United States. From the conceded facts in the case the stream is capable of bearing a steamer of one hundred and twenty-three tons burden, laden with merchandise and passengers, as far as Grand Rapids, a distance of forty miles from its mouth in Lake Michigan. And by its junction with the lake it forms a continued highway for commerce, both with other States and with foreign countries 9

10 In The Montello, the Supreme Court clarified that customary modes of trade and travel on water encompasses more than just navigation by larger vessels: The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox River was a navigable water of the United States. The Court was careful to note that the bare fact of a water s capacity for navigation alone is not sufficient; that capacity must be indicative of the water s being generally and commonly useful to some purpose of trade or agriculture. Within the documentation available from the U.S.A.C.E., we find yet again two different categories of waterways defined for different purposes: (1) Waters of the United States can include wetlands, ponds, and intermittent streams. While the Corps does have jurisdiction over these waters, they are not necessarily considered part of (2) Navigable Waters of the United States, defined as all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. This definition includes traditional navigable waters plus all other waters that are navigable-in-fact (e.g., the Great Salt Lake, UT and Lake Minnetonka, MN) (Definition of Navigable Waters, U.S.A.C.E. 33 CFR 329, Appendix D) The owners of lands situate on the banks of freshwater navigable streams are owners of the beds of the rivers to the middle of the stream, as at common law. In the United States, the great navigable lakes are properly regarded as public property, and not susceptible sceptible of private property any more than the sea. A grant giving the ocean or a bay as the boundary, by the common law, carries it down to ordinary highwater mark. The usual high-water mark is the boundary on the sea, and not the highest or lowest point to which it rises or recedes. 10

11 The right of fishing in Lake Erie and its bays, is not limited to the proprietors of the shores; and the right of fishing in these waters is as public as if they were subject to the ebb and flow of the tide. Where no question arises in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation, the boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to the line at which the water usually stands when free from disturbing causes. The question as to the ownership of the soil under the water, is one which each state is at liberty to determine for itself, in accordance with its views of local law and public policy; and if it chooses to concede the right of the riparian owner to the center of the stream, it is not for others to raise objections. The private grantee of the land cannot do anything that will interfere with the channel, or hamper the passage of water craft through it. But he may, without the limits of the channel, erect fishing houses or such other structures as his means and the depth of water will permit; he may convert shallow portions into cranberry patches; he may fill up other parts and make solid ground. Although such action by him may lessen the water surface available for the fishing boats, the fishermen cannot complain. Such public right to fish always yields to any permanent improvement by the owner of the land on which the water rests. 11

12 "Having no tidal waters in this state, the word navigable, as applied to our rivers, is not used in the technical sense of the common law; but is applied, as in a popular sense, to all rivers that are navigable in fact. A river is regarded as navigable which is capable of floating to market the produce of the country through h which h it passes, or upon which h commerce can be conducted; and, from the fact of its being so navigable, it becomes in law a public river or highway. The character of a river, as such highway, is not so much determined by the frequency of its use for that purpose, as it is by its capacity of being used by the public for transportation and commerce." It is not every small creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable. In order to have this character, it must be navigable to some purpose useful to trade or agriculture. It is not a mere possibility of being used under some circumstances, as at extraordinary high tides, which will give it the character of a navigable stream, but it must be general and commonly useful to same purpose of trade or agriculture. The principle clearly deducible is, that as to navigable rivers, the private right of the riparian owner to the land, ordinarily covered by water, is in all cases subordinate to the paramount public right of navigation, and its incidents. The converse is expressed by Christiancy, J., in Rice v. Rudiman, 10 Mich., 125, thus: "In other words, all the private or individual use and enjoyment of which the land is susceptible, subordinate to, and consistent with, the public right, belong to the riparian owner as against any other person seeking to appropriate it to his individual use. 12

13 Among the rights of the public is that of mooring vessels for the purpose of repairs, and of putting in engine, boilers and machinery, after such vessels have been launched. Such use, reasonably enjoyed, is not a trespass upon the lands of a riparian owner, in front of whose river bank, outside of the dock line, such vessels are moored, and such owner will not be entitled to an injunction forbidding such use, unless special injury to his property is shown. But the right of the public does not extend to use of lands of the owner not covered by water. And where a builder of vessels so moored carries lines from them across the river bank of such riparian owner, against his objection, and fastens them upon the land of such builder, and insists i upon the right to continue such acts, the riparian owner may be entitled to an injunction, although his land is unimproved, and such acts produce no actual present damage. Summary: the ship building company's act of carrying lines across the property owner's bank, to which the property owner had an absolute right which was not qualified by any public use, constituted trespass which the property owner was entitled to enjoin. The court noted that t such trespass could grow into a prescriptive right, the risk of which should not be imposed upon the property owner. The court also noted that there was no hardship upon the ship building company to require it to obtain a right to such use of the property owner's bank by negotiation. 13

14 When a deed calls for a corner standing on the bank of a creek thence down said creek, with the several meanders thereof, the boundary is the water edge at the low water mark. Where an owner of land is bounded by a stream, he owns to the center of the stream, subject to the easement of navigation, etc., but to calculate the quantity in a survey, no reference is had to what lies between low water mark and the center of the stream. Where one who owns a tract of land that surrounds and underlies an unnavigable lake, the length of which is distinguishable greater than its breadth, conveys a parcel thereof that borders on the lake, by a description which makes the lake one of its boundaries, the presumption is that the parties do not intend that a grantor should retain the title to the land between the edge of the water and center of the lake, and the title of a purchaser, therefore, will extend to the center thereof. If, however, a call in the description be to and thence along the margin of the lake, no such presumption arises, and the title of the purchaser will extend to low water mark only. Controversies growing out of the shifting of earth by the action of the waters in running streams gave rise to the doctrines of accretion and avulsion. In cases of accretion, owing to the difficulty of tracing the original source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion the original owner still holds the title. 14

15 Accretion is said to be the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream. Accretion is the usual and ordinary case of the shifting of earth by the action of the waters and avulsion is of a somewhat extraordinary nature. Avulsion may exist, first, where a stream changes its course, and, second, where a considerable quantity of earth is carried en masse across the channel and attached to the opposite shore. As applied to the second class: Avulsion is the removal of a considerable quantity of earth from the land of one proprietor and its deposit upon or annexation to the land of another suddenly and by the perceptible action of the water. Where the change to the channel of a river is made suddenly and violently, and is visible, and the effect is certain, it is said to be by avulsion. In Coulthard v. Davis, 101 Iowa 625, 70 N.W. 716, it is held: "Land detached from one side of a river by a sudden change in the channel, and left connected with land on the other side, in such manner as to be capable of identification, is not an accretion." The question of identification must necessarily play an important part in applying the doctrine of avulsion. For without identification there can be no avulsion in a legal sense. 15

16 "That while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating g into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. When considering the nature of private and public riparian rights to flowing water, the state may appropriate riparian interests only through eminent domain. The state, in its exercise of the right of eminent domain, can subject the waters of a stream to other public uses the same as any other private property, by making a just compensation for the injury, and not otherwise. 16

17 When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created state extends to the river only. The river, however, is its boundary. It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., Nebraska v. Iowa, 143 U.S. 359 (1892), or the Mississippi River between Arkansas and Mississippi. See Mississippi v. Arkansas 415 U.S. 289 (1974), and 415 U.S. 302 (1974). See also Iowa v. Illinois, 147 U.S. 1 (1893); Missouri v. Nebraska, 196 U.S. 23 (1904); Minnesota v. Wisconsin, 252 U.S. 273 (1920); New Jersey v. Delaware, 291 U.S. 361 (1934); Arkansas v. Tennessee, 310 U.S. 563 (1940). In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application. A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, Texas v. Louisiana, 410 U.S. 702 (1973), where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky- Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States 17

18 "Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled." We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. Ohio follows the rule that gradual riverbed changes affect the riparian boundary, but sudden changes do not affect the boundary. Where, in a deed of conveyance, the middle of a known stream is called for as the boundary line between een adjacent proprietors, the thread of such stream, notwithstanding it may change in its location by attrition and accretion, will control the courses and distances named in the conveyance, and will continue to be the boundary line between the lands of the respective proprietors. 18

19 In cases of accretion, owing to the difficulty of tracing the original source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion the original owner still holds the title. Accretion is the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream. Accretion is the usual and ordinary case of the shifting of earth by the action of the waters and avulsion is of a somewhat extraordinary nature. In the absence of sufficient evidence to prove that a change in the course of a river occurs as the result of avulsion, a court must presume that the change occurs as the result of accretion. To avoid the presumption of accretion, a party must present evidence to prove that the changes are not gradual and imperceptible. A party seeking to prove avulsion must also prove that the land currently on one side of the river is the same as the land that formerly was on the other side of the river. The general rule is that the riparian rights of owners extend into the middle of the river, subject to an easement for navigation. Where there is an irregular shoreline along a river, the riparian boundary as it extends into the river, can be determined d by establishing a baseline from which to determine the angle at which the riparian boundary extends from the shoreline to the middle of the river. 19

20 This Court further finds that as to the issue of how each party's rights enter the Black River, that due to the irregular shoreline and based upon the 1958 case, that [Connone's] riparian rights enter the Black River at an angle perpendicular to the water flow, as does [Tillack's] rights. The lines shall be drawn at right angles from the points where the property touches the river as shown in Exhibit C to the parties['] stipulations. Specifically, a line shall be drawn at a right angle from the southern most corner of [Connone's] property and [Connone's] riparian rights shall extends [sic] to a parallel line even with a right angle drawn from the southern most corner of [Tillack's] Riparian rights, as property, enjoy the same constitutional protection as rights in land. Riparian rights arise from ownership of land abutting a river. The general rule is that riparian rights may be sold separately from the land that spawns them. There appears to be no diversity of opinion upon the proposition that riparian rights are property that may be the subject of bargain and sale, either with or separate from the land. A municipality, because it owns land along a river, may withdraw that water for the use of its citizens who do not own land abutting the river. In addressing the duty of reasonable use that an upper riparian owes to a lower riparian, reasonableness is tied to an actual injury to the lower riparian. The real and only question upon which a liability could be founded is whether the flow of the water in the stream was materially diminished, to the injury of the lower proprietors. 20

21 It is universally conceded that the water of a stream is not the subject of ownership in the ordinary sense. The right of property is in the right to use its flow, and not in the specific water. That is, it is but a usufructory right, a right to enjoy that which belongs to another, and to draw from it all the advantage it will produce without wasting its substance. An owner of land abutting a river owns the accompanying riparian rights unless they are specifically procured by another person. Pursuant to federal law, the navigability of a body of water is determined by whether it is or ever was used in commerce. Waters are navigable in law when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel upon water. The "public trust" doctrine has been recognized-- i.e., that the state holds the waters and subaqueous lands of Lake Erie in perpetual trust for the people of the state while littoral owners retain a right to "wharf out" from the shore to the lake's navigable waters. However, where the public trust physically commences has not been defined. The littoral owners of the upland have no title beyond the natural shore line; they have only the right of access and wharfing out to navigable waters. (Lake Erie) 21

22 The Ohio Attorney General has concluded that the land that lies above the natural shoreline of Lake Erie belongs to the littoral owner. The "shoreline" is the line marking the edge of a body of water. Naturally, the shoreline of a body of water is in a constant t state t of change. Ohio Admin. Code Chapter , "Lease of Lake Erie Submerged Lands," defines the term "shoreline" as the line of intersection of lake Erie with the beach or shore. Ohio Admin. Code (U). "Shore" is defined as the land bordering the lake, Ohio Admin. Code (T) 10(T) and "beach" means a zone of unconsolidated material that extends landward from the shoreline to the toe of the bluff or dune. Where no bluff or dune exists, the landward limit of the beach is either the line of permanent vegetation or the place where there is a marked change in material or physiographic form. Ohio Admin. Code (E). For the purpose of the boundary of the territory (the southern shore of Lake Erie), "shore" is the land between low and high water marks. However, this does not mean that the boundary of the territory for purposes of the public trust doctrine should be set at the low water mark. Instead, shoreline is the line of actual physical contact by a body of water with the land between the high and low water mark undisturbed and under normal conditions. 22

23 For the purpose of the boundary of the territory (the southern shore of Lake Erie), the term "shore" includes and designates the land lying between the high and low water mark. Ohio Admin. Code (T) defines "shore" as the land bordering the lake. "Shore"" is also defined d as the land lying between the lines of high- and low-water mark; lands bordering on the shores of navigable waters below the line of ordinary high water. Therefore, the shoreline, that is, the actual water's edge, is the line of demarcation between the waters of Lake Erie and the land when submerged thereunder held in trust by the state of Ohio and those natural or filled in lands privately held by littoral l owners. By setting the boundary at the water's edge, the private property rights of littoral owners are recognized and respected, while at the same time, it provides for the public's use of the waters of Lake Erie and the land submerged under those waters, when submerged. The water's edge provides a readily discernible boundary for both the public and littoral landowners. The waters and submerged bed of Lake Erie when under such waters is controlled by the state and held in public trust, while the littoral owner takes fee only to the water's edge. 23

24 A natural watercourse does not lose its character as a public watercourse because a part of its channel has been artificially created. Nor is the channel of a naturally navigable watercourse made private because of reasonable improvements put upon it. The artificial extensions of a naturally navigable channel become a part thereof and are public waters. Public watercourses are subject to an easement of use by the public. (L) "Littoral rights" means the right of an upland property owner to make reasonable use of the waters fronting the upland property and the right to wharf out to navigable waters within the projected boundaries of the upland property, said rights being subject to the rights of the State of Ohio and the United States. (M) "Littoral zone" means the indefinite zone between the shoreline extending lakeward to the furthermost line where waves begin to break. It is hereby declared that the waters of Lake Erie consisting of the territory within the boundaries of the state, extending from the southerly shore of Lake Erie to the international boundary line between the United States and Canada, together with the soil beneath and their contents, do now belong and have always, since the organization of the state of Ohio, belonged to the state as proprietor in trust for the people of the state, for the public uses to which they may be adapted, subject to the powers of the United States government, to the public rights of navigation, water commerce, and fishery, and to the property rights of littoral owners, including the right to make reasonable use of the waters in front of or flowing past their lands. 24

25 Any artificial encroachments by public or private littoral owners, which interfere with the free flow of commerce in navigable channels, whether in the form of wharves, piers, fills, or otherwise, beyond the natural shoreline of those waters, not expressly authorized by the general assembly, acting within its powers, or pursuant to section of the Revised Code, shall not be considered as having prejudiced the rights of the public in such domain. This section does not limit the right of the state to control, improve, or place aids to navigation in the other navigable waters of the state or the territory formerly covered thereby. 25