Gunderson v. State of Indiana


            The plaintiffs, Don and Bobbie Gunderson, own lakefront property in Long Beach, Indiana, consisting of three lots in Section 15 of Michigan Township. The plaintiffs’ deed does not reference the boundary separating the disputed property from Lake Michigan to its north. An 1829 federal survey, contained in the deed, shows Lake Michigan as the northern boundary of Section 15 and notes: “to Lake Michigan and set post.” Furthermore, the Town of Long Beach instituted an ordinance in 2010 separating state-owned beaches from private portions of the shore, which the plaintiffs allege infringes upon their property rights. The plaintiffs accordingly sued the State of Indiana in 2014 seeking a declaratory judgment of their littoral rights to the shore of the lake and quiet title to the disputed property. The defendants and intervening parties responded by filing cross motions for summary judgment on their behalf.


            The trial court issued a summary judgment in favor of the State of Indiana, ruling that the State holds title to the Lake Michigan shores in trust for the public and private property interests overlap with those of the State. The Court of Appeals affirmed in part and reversed in part, holding that: (1) absent an express legislative abrogation of public trust rights in the shore of the lake, those rights are controlled by the common law public trust doctrine; (2) DNR’s administrative boundary is invalid and the OHWM remains defined by common law; and (3) the northern boundary of the plaintiffs’ property extends to the ordinary low water mark and is subject to public use rights up to the OHWM for activities such as walking along the beach and accessing the public waterway. Plaintiffs now successfully petitioned the decision for transfer to the Indiana Supreme Court, thereby vacating the Court of Appeals opinion.


            (1) Whether the State of Indiana holds exclusive title to the exposed shore of Lake Michigan up to the OHWM – ordinary high-water mark – or whether the plaintiffs, as riparian property owners, hold title to the water’s edge, thus excluding public use of the beach.

            (2) Whether the OHWM is located wherever the water meets the land at any given moment or is located further landward to include the exposed shore.


The boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high-water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary.


            First off, the State of Indiana acquired title to the shores and submerged lands of all navigable waters within its border, which is the primary issue here, upon admission into the Union in 1816, pe Kivett. The plaintiffs contend that they own the disputed property, per deed, to the water’s edge of Lake Michigan, up until the point at which the water meets the exposed shore at any given moment. They further argue that the State of Indiana owns the submerged lakebed, thereby limiting public use to the waters only. On the other hand, the defendants assert that the State exclusively owns the bed of Lake Michigan up until the OHWM, including the exposed shores when the water recedes, per the equal-footing doctrine. The plaintiffs believe that the equal-footing doctrine, per the Northwest Ordinance of 1787, granted States exclusive title to the waters only. However, the equal-footing doctrine originated in the U.S. Constitution and United States v. Utah later interpreted it to convey exclusive title to the States of the beds of rivers within the state once the state was admitted into the Union (1816 for Indiana). States have long held the right to establish rules concerning public use of the aforementioned property. Moreover, modern courts abandoned the ordinance relied upon by the plaintiffs in favor of the “admission into the Union” standard for determining equal-footing and, accordingly, the ordinance does not affect the defendant’s title to the shores and submerged lands of Lake Michigan.

            On another note, the plaintiffs’ contend that their deed represents prima facie evidence of their title to the disputed property absent another party’s superior title, which the defendants assert they acquired upon admission into the Union in 1816. The federal government did not survey the land granted to the plaintiffs’ predecessor per the deed, which originated from an 1837 federal land patent. In addition, the U.S. Supreme Court held, per Shively v. Bowlby, that grants of land by congress do not convey title to property below the high-water mark and do not inhibit a state’s dominion over such property in navigable waters. However, absent evidence proving the plaintiffs hold an express federal grant prior to 1816 conveying them the property below the OHWM, the shore lands below the OHWM belong to the State of Indiana for public use.

            Furthermore, the plaintiffs contend that a number of cases and the federal Submerged Lands Act designate the water’s edge as the legal boundary between private and public property. The State, on the other hand, rightfully argues that the land granted per the equal footing doctrine extends from temporarily-exposed shores of the lake up until the OHWM. As stated by the court, the states have title to all land on the waterbody side of the OHWM, including submerged soil and the shore, whereas private owners may own land on the upland side on the OHWM. The Supreme Court of Michigan further held that OHWM includes temporarily-submerged land to account for the inherent fluctuation of water levels. Additionally, common law historically determines the boundary of the OHWM, not at the water’s edge as asserted by the plaintiffs, but actually at wherever the mark/presence of the water on the soil/vegetation ends. Therefore, the plaintiffs’ based their argument upon a misinterpretation of the Submerged Lands Act of 1953 and, in turn, the State of Indiana lawfully acquired exclusive title of Lake Michigan up to the OHWM upon statehood. The State of Indiana also has the authority to define the limits of land for public trust and private ownership as it sees fit. Thus, the contention that both parties hold overlapping title to the disputed property is invalid, as the State acquired sovereignty upon statehood.

            The plaintiffs further argue that the Lake Preservation Act intended to extinguish public trust rights to the land encompassed by Lake Michigan. Regardless, the legislature did not intend to extinguish the public trust rights of the defendant over the shores of Lake Michigan. In fact, Indiana enacted a submerged property statute providing that private owners may only acquire permits to use the land within navigable waters, but the land remains encumbered by public trust. In other words, the public trust rights held by the State trumps any rights to the land granted to private owners. The plaintiffs rely upon Bainbridge, which deals with the Ohio River, to support their contention that the State of Indiana relinquished rights to the disputed property. Their argument, however, proves incorrect merely because rulings concerning the Ohio River do not hold weight in issues regarding Lake Michigan.

            Finally, the court determined that even if the plaintiffs brought evidence of an express federal grant prior to 1816 granting them rights to the disputed property, private riparian owners cannot interfere with public use of the lake as fundamental as walking along the shore. Ruling in favor of the plaintiffs would inevitably carry with it ramifications to key social and economic functions of the state. Furthermore, the court here cannot practically take away public use of waters and shores of the lake without interfering with the state’s sovereignty over the disputed land. For this reason and those listed above, the court chose to exercise judicial restraint over the matter and, in turn, conclude that the disputed property is intended for public use, as opposed to ownership by the plaintiffs.


            The Supreme Court of Indiana affirmed in part and reversed in part the trial court’s grant of summary judgment in favor of the defendants.

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