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December 13, 2007

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Discussion Topic: High Water and Private Property

From the Toledo Blade:

The boundary line that separates public and private land along Ohio's Lake Erie shoreline moves in accordance with the tides, a state judge ruled yesterday.

The 77-page decision by Lake County Common Pleas Court Judge Eugene Lucci has potentially sweeping implications for . . . beach walkers as well as fishermen, waterfowl hunters, and birders who want to access the shoreline.

It defines the "water's edge" - not the historic high-watermark - as the boundary. . . .

Larry Mitchell, president of the League of Ohio Sportsmen, said the decision is disappointing and confusing because it suggests the boundary changes with wave action.

Check out the whole story and tell us your reaction.

Comments

jack

I have mixed reaction to this. I absolutely believe private property rights should trump public access. What started the suit was an attempt by government and activist enviros to claim ownership to the entire shoreline of Lake Erie and that portion of the beach which periodically becomes covered with water. They were not happy with regulating it, they wanted exclusive claim over its ownership.

I am more inclined to side with the Judge on this one. The state wanted a wholesale taking and over-ride of many deeds, some of which specifically describe land under the water as being part of the property owner's land.

It may well be that both Ohio and Michigan adopted a standard years ago using the high water mark, but such an action by the government should not wipe out any private property owner's rights if their deeds specifcally call out land under water.

John

It should be Highwater Mark UNLESS the deed stated otherwise, and if so then that extra piece should be posted! That's the law in Long Island, NY, and it makes perfect sense. Much better sense than this.

Dave in IDAHO

High water mark has been the long standing boundary for every waterway in Idaho. I believe this to be reasonable. Public access has got to be maintained for our waterways and beaches. Don't fence me out!

Water's edge? That's garbage. Some of the best waterfowling, fishing, and even turkey hunting I've done occured in the mudflats during droughts.

Bubba

The historic high water mark should be the boundary between public and private land!

Bubba

GREG

Maybe Im bein facetious but as long as your feet are wet you are legal, no?

GREG

I have a similar problem. Its called navigable waterways. If you can put a boat in it is public property. Ask a farmer aroud here or get caught on his water and you are liable to get shot or at least a beating. Just want a definition of navigable water way?

William

Greg, I think this might be the same issue but where I live they say if it is a meandering stream it is public property. A non-meandering stream is not available to the public because of the nature that if the stream boundaries don't naturally move then it is private property. I think what the laws here get at are that a meandered stream is public property because it has the potential to move on and off of a set property line- so that it has no implicit owner. A non-meandered stream doesn't do that so it is a part of private property because it "has always been on my land". Confusing, yes. Why? I have no clue.

GREG

Ill get permission first for my health. Out yonder the law wont help me!LOL

paul Wilke

So,selfishly, if I have lakefront property and the lake dries up my property grows, at least to the center of the lake. Then conversely if there is a flood I've lost all my property. ????
What ever happened to property lines?

jack

What is a 'navigable waterway"? According to the US Army Corps of Engineers 33CFR Part 329, generally:

329.6 Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity."

While it may seem definitive, there are some weasel words in there that allow for judicial tampering of the definition.

jack

Greg - ability to float a boat in it is not necessarily a guarantee of public access.

John R

NC defines the high tide mark (on oceanfront property) as the private property boundary however beaches are generally considered to be public domain. There has been several attempts by greedy landowners to change that to water's edge. All past attempts to do that were soundly defeated and rightfully so. All estuarine waters are considered navigable waterways and open to access by anyone. Several subdivisions here have canals adjacent to lots within the subdivision. The subdivision cannot prevent boats from coming int the canals as they are open to the sound. They can enforce regulation such as no wake zones.

Bubba

Hey Greg, my BFAM,

Had the opportunity many moons back to attempt to hunt the Navasota River in Texas. In researching the "navigation" aspect of the endeavor, I discovered that the Federal Gov't considers any "waterway" with a maintained width of thirty-three (33) feet as a "navigable" water way and anything within the "second bank" is considered the property of the US Gov't.
So I suppose that if you started at the mouth of a tributary and traveled upstream until the "main channel" (not necessarily "water" width) constricted to less than 33 feet, the Fed Gov't considers that portion Fed Gov't property!
My discussion with the local sheriff's office lead to the fact that the local "powers" considered up to the "center line" of the stream as "private" property, anyone found on the river could be arrested and charged with trespassing!
Even though confronted with the fact that the property was a possession of the US Gov't, they still insisted that their trespass laws would hold sway!

Bubba

Joe

I have a question I recently bought a house on the long Island Sound in New York and my DEED states clearly I own to the HIGH water mark as it existed in 1969.The beach has eroded sice ,so does this mean that I own the sand under the water to that point as it existed in 1969 ???? Please help




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