AGO 1993-025.

• Case Date: October 27, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-025. October 27, 1993OPINION NO. 1993-025Frances S. Buchholzer, Director Ohio Department of Natural Resources Fountain Square Columbus, Ohio 43224 Dear Director Buchholzer: You have requested an opinion concerning the authority of the Department of Natural Resources with respect to Lake Erie. Your specific questions are as follows:

1. Whether the Ohio Supreme Court in State ex rel. Squire v. Cleveland, 150 Ohio St. 303 (1948) held that the natural shoreline of Lake Erie, from the east bank of the Cuyahoga River to East 70th Street in Cleveland, is the shoreline as it existed in 1914.

2. Whether the Ohio Supreme Court in Sloan v. Biemiller, 34 Ohio St. 492 (1878) held that the littoral property(fn1) owner owns to the ordinary low water mark in Lake Erie.

3. Whether the littoral property owner has superior title to the "lands beneath navigable water" vested in the state of Ohio by the United States pursuant to 43 U.S.C. §1311.

The Determination of the Exact Location of the Natural Shoreline of Lake Erie Is a Question of Fact

The question before the court in State ex rel. Squire v. Cleveland, 150 Ohio St. 303, 82 N.E.2d 709 (1948) was the determination of the rights of the state, the City of Cleveland, and private land owners with respect to certain land created by artificial fill to the north of the natural shoreline of Lake Erie. The court determined that, "[t]he 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." 150 Ohio St. at 337, 82 N.E.2d at 725. In its decision, the court referred to the natural shoreline as the "1914 shore line." State ex rel. Squire v. Cleveland, 150 Ohio St. at 317, 82 N.E.2d at 717. After 1914, littoral owners began filling in the shallow waters to create land north of the natural shoreline. This process permanently fixed the "natural shoreline" along the filled land. The question of exactly where the natural shoreline lay, however, was not at issue in Squire. See State ex rel. Squire v. Cleveland, 32 Ohio Op. 111, 136 (C.P. Cuyahoga County 1945) (the trial court in this case referred to "the natural shoreline which by agreement is the line indicated on Plaintiff's Exhibit A, 'City, 1914'" (emphasis added). Therefore, in State ex rel. Squire v. Cleveland, the court did not hold, as a matter of law, that the natural shoreline of Lake Erie, from the east bank of the Cuyahoga River to East 70th Street in Cleveland, is the shoreline as it existed in 1914

Sloan v. Biemiller, 34 Ohio St. 492 (1878)

Your second question asks whether the case of Sloan v. Biemiller, 34 Ohio St. 492 (1878), held that a littoral property owner owns to the ordinary low water mark in Lake Erie. The question at issue in that case was "whether the right of fishing in the lake and bay is limited to the plaintiff as the proprietor of the shores," 34 Ohio St. at 513, not the extent of a littoral property owner's title in the shores of Lake Erie. In its analysis of the law regarding Lake Erie, however, the court discussed the English common law, which had historically been the basis for decisions concerning the rights of littoral and riparian(fn2) property owners, and noted that it is sometimes inapplicable to the large fresh water lakes of the United States. In support of this point, the court cited the case of The Canal Commissioners v. The People, 5 Wend. 423, 447 (N.Y. 1830) in which it was stated that

our large fresh water lakes, or inland seas ...are wholly unprovided for by the law of England. As to these there is neither flow of the tide, or thread of the stream, and our own local law appears to have assigned the shores down to the ordinary low water mark to the riparian owners, and the beds of the lakes with the islands therein to the public. (Emphasis in original.)

This case was cited as an example of how the English common law was not always applicable to the Great Lakes, not as authority for the proposition that a littoral owner on Lake Erie holds title to the ordinary low water mark. In fact, the Sloan v. Biemiller court cited an Illinois case, Seaman v. Smith, 24 Ill. 521 (1860), which determined that the "usual high water mark," defined as "that line where the water usually stands when unaffected by any disturbing cause," id. at 524, was...