Appellete Court Rules in Favor of Ohio Lakefront Group Property Owners

The Eleventh District Court of Appeals in Painesville issued the long awaited decision on basic property rights today. This decision stood up for the most fundamental of all property rights—ownership of what is specified on a deed. OLG is very pleased with this decision.

In a Press Release issued today, Ohio Lakefront Group President Tony Yankel stated:

“The Ohio Lakefront Group has now won three times in court. But, after five years and over $400,000 in legal fees, we now have a very detailed and learned decision from the Court of Appeals that reaffirms the obvious—we own what our deeds say we own. No radical bureaucratic notion can alter our deeds. We have won because we have been defending a simple premise—deeds and private property ownership are one of the cornerstones of this Country.”

The highlights of the decision, as summarized by our attorneys follow. If you want a copy of the full court decision to use the page references on each item, please click this link Court of Appeals Decision 8-24-09 (w-o attachment) (00615029) to view or download document..

• The Eleventh District Court of Appeals (“Court”) rejected the argument made by the State and the National Wildlife Federation (“NWF”) that the Equal Footing Doctrine of federal law dictates ordinary high water mark as “natural shoreline” – page 18.

•The Court determined that the Ohio A.G. had no standing in this case as he had no client. The Governor and ODNR withdrew from the suit in July 2007, therefore the A.G.was defending no official or agency of the State and had no request to do so.

The Court rejected the argument made by the State and NWF that the Submerged Lands Act dictates ordinary high water mark as “natural shoreline”– page 19.

• The State and NWF argued that the trial court erred in holding that ODNR cannot use IGLD to establish the ordinary high water mark. The Court said this argument is moot because ODNR is no longer doing this – pages 20-21.

• NWF argued that the public could use the dry land between ordinary high water mark and water’s edge for any recreational purpose regardless of objections from upland property owners. The Court rejected this argument, finding that the “public retains the same rights to walk lakeward of the shoreline along Lake Erie, but these rights have always been limited to the area of the public trust (i.e., on the lands under the waters of Lake Erie and lakeward of the shoreline).” – page 21.

• In addition, the Court observed: “Nearly 130 years ago, the Supreme Court of Ohio observed that littoral owners have the right to exclude the public from their property. Sloan, supra.” – page 21.

• The Court rejected the proposition that the “natural shoreline” is at the ordinary low water mark. Instead, the Court followed Ohio Supreme Court precedent and defined the natural shoreline using a practical boundary that is relatively easy for property owners to identify: the “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. See, e.g., Sloan, supra, at paragraph four of the syllabus.” – page 24. By using ordinary high and low water marks as limits on where the water’s edge can travel, the Court appears to have implicitly incorporated the general common law understanding that flooding doesn’t move the “natural shoreline.”

• OLG argued that the trial court exceeded its authority in ordering that all deeds of upland property owners be reformed to terminate at the water’s edge. The Court agreed with OLG and reversed the trial court’s decision to reform the deeds of all upland property owners – page 25.

• The Court summarized its findings at page 30: “the Supreme Court has identified that the waters, and the lands under the waters of Lake Erie, when submerged under such waters, are subject to the public trust, while the littoral owner holds title to the natural shoreline. As we have identified, the shoreline is the line of contact with a body of water with the land between the high and low water mark. 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 owners.”

• And at pages 30-31, the Court further explained its findings: “By setting the boundary at the water’s edge, we recognize and respect the private property rights of littoral owners, while at the same time, provide 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.”

Tony Yankel stated in the conclusion of the Press Release:

“Will there be yet another frivolous and wasteful appeal to the Ohio Supreme Court by the current Ohio Attorney General Richard Cordray or another party? I don’t know, but if there is, the OLG and its membership are ready. We’ll never give up our fight for our property rights.”