ABSTRACT
For nearly a century and a half, the Supreme Court of Ohio has declared, without defining, the governing principle of littoral property law along Lake Erie: the boundary between the state’s public trust in the waters and the private upland title of the littoral owner is the ‘natural shoreline’ — the line at which the water usually stands when free from disturbing causes. Sloan v Biemiller (1878) borrowed the phrase from Illinois; Merrill v Ohio Department of Natural Resources (2011) reaffirmed it unanimously. Neither case, nor any case in the 148 years between them, has ever defined what a disturbing cause is. No legislature has supplied the definition. No regulatory body has operationalized it. And until now, no legal scholar has attempted to do so.
This article fills that gap. The stakes are not academic. Approximately 15,500 littoral landowners along Ohio’s 311-mile Lake Erie coastline hold title that terminates, by law, at a boundary no one can reliably locate. Littoral owners seek certainty and the full exercise of their constitutionally protected property rights to a defined, ascertainable line. Environmental organizations and recreational users press an equal but opposite interest: the assurance that the public trust in the waters of Lake Erie is never severed from the water’s edge by an artificially frozen boundary. Both interests are legitimate. Both are currently unserved.
This article argues that the answer has been embedded in the ancient common law for centuries, requiring only that it be recognized and applied. The common law of littoral property has long distinguished two categories of forces that alter the water’s edge. The first category — accretion, reliction, erosion, and submersion — consists of processes that are gradual, long-term, imperceptible while underway, and ordinary in character. These processes have always been recognized as title-changers: they move the boundary with the water. The second category — avulsion, storm surge, seiche, atmospheric pressure change, ice effects, wind tide, and similar sudden forces — consists of processes that are abrupt, short-term, dramatic, and perceptible while underway. These are the disturbing causes: they do not move the boundary, because the water’s position under their influence is not the water’s natural position.
The key is perceptibility at the time the process is underway, not measurability after the fact. A disturbing cause can be seen happening. Accretion, reliction, erosion, and submersion cannot be perceived while they occur, only measured in retrospect. That distinction — ancient, principled, already embedded in American property law and confirmed by the Supreme Court of the United States — resolves the definitional problem that Merrill left open. The natural shoreline is the water’s edge in its ordinary, undisturbed condition: mobile across time with the gradual forces the common law has always recognized as title-changers, but stable against the perceptible disturbances the common law has never permitted to alter property boundaries.
Lucci, Eugene, The Natural Shoreline Defined: Ancient Common Law Principles and the Boundary No Court has Ever Located (March 29, 2026). This paper has been accepted for publication by William and Mary Environmental Law and Policy Review (ELPR) volume 51 (2026-27).
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