A candid but rational inquiry into the history of the public trust doctrine is essential to understanding a recent Michigan Supreme Court decision that suddenly and unexpectedly took private property for public use without just compensation.
Despite the Latinate allure of its terms-jus publicum and jus privatum-the public trust doctrine has no Roman law origins. It is a creature of the common law. It arose in England to explain the Crown's rights to tidelands and navigable waters. It followed English dominion across the Atlantic, where the fertile imagination of American lawyers unearthed the doctrine's supposed ancient Roman roots.
This Note argues that the Michigan Supreme Court used the doctrine's veneer of antiquity to rationalize away the effects of its decision in Glass v. Goeckel. In Glass, the court opened to the public thousands of miles of private land along the Great Lakes in Michigan. In so doing, the court overturned decades of Michigan law, unsettled the expectations of property owners, and, in effect, took longstanding private property rights, converted them to public use, yet offered no compensation. This decision authorizes Michigan to circumvent the Fifth Amendment and seize private property without facing the burden (and the constitutional mandate) of paying for it.
Carl Shadi Paganelli,
Creative Judicial Misunderstanding: Misapplication of the Public Trust Doctrine in Michigan,
58 Hastings L.J. 1095
Available at: https://repository.uchastings.edu/hastings_law_journal/vol58/iss5/4