Jerome Movrich v. David J. Lobermeier

2018 WI 9
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP583
COMPLETE TITLE: Jerome Movrich and Gail Movrich,
Plaintiffs-Respondents,
v.
David J. Lobermeier and Diane Lobermeier,
Defendants-Appellants-Petitioners.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 724, 889 N.W.2d 454
PDC No: 2016 WI App 90 - Published
OPINION FILED: January 23, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 20, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Price
JUDGE: Patrick J. Madden
JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ABRAHAMSON, J. concurs and dissents (opinion
filed).
R.G. BRADLEY, J. concurs and dissents,
joined by A.W. BRALDEY, J. and ABRAHAMSON,
J. (except Part II) (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-petitioners, there were
briefs filed by Brian G. Formella and Anderson, O’Brien, Bertz,
Skrenes & Golla, LLP, Stevens Point. There was an oral argument
by Brian G. Formella.
For the plaintiffs-respondents, there was a brief and oral
argument by Daniel Snyder, Park Falls.
An amicus curiae brief was filed on behalf of Big Cedar
Lake Protection and Rehabilitation District and Wisconsin
Association of Lakes, Inc. by William P. O’connor and Wheeler,
Van Sickle & Anderson, S.C., Madison. There was an oral
argument by William P. O'Connor.
An amicus curiae brief was filed on behalf of Wisconsin
REALTORS Association by Thomas D. Larson and Wisconsin REALTORS
Association, Madison.
2
2018 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP583
(L.C. Nos. 2013CV22 & 2013CV78)
STATE OF WISCONSIN : IN SUPREME COURT
Jerome Movrich and Gail Movrich,
FILED
Plaintiffs-Respondents, JAN 23, 2018
v.
Diane M. Fremgen
David J. Lobermeier and Diane Lobermeier, Acting Clerk of Supreme
Court
Defendants-Appellants-Petitioners.
REVIEW of a published decision of the court of appeals.
Affirmed in part; reversed in part.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. David and Diane
Lobermeier appeal a decision of the court of appeals, affirming
the circuit court's1 judgment entered in favor of Jerome and Gail
Movrich regarding their asserted right to install a pier and to
access the Sailor Creek Flowage directly from their shoreline
property. Lobermeiers own the waterbed of the Flowage where the
Movrich property meets the water.2 Lobermeiers contend that the
presence of navigable water over their property does not affect
their basic property rights, including the right to prohibit
1
The Honorable Patrick J. Madden of Price County presided.
2
Lobermeiers do not own the entire waterbed.
No. 2015AP583
Movriches from installing a pier into or over the portion of the
waterbed of the Flowage that Lobermeiers own. Lobermeiers
further contend that Movriches may access the Sailor Creek
Flowage only from a public access point. Movriches respond that
Lobermeiers' ownership is qualified by and subservient to their
asserted riparian rights and to the Wisconsin public trust
doctrine.
¶2 There are three issues on this appeal. First, we
consider whether Movriches have riparian rights, which when
combined with their rights under the public trust doctrine,
overcome Lobermeiers' private property rights such that
Movriches can place a pier on or over Lobermeiers' property. To
answer this question we review property rights, riparian rights,
and the public trust doctrine, detailing the origin and extent
of each.
¶3 In regard to the first issue, we conclude that while
Movriches' property borders the Flowage, they are not entitled
to those riparian rights that are incidental to property
ownership along a naturally occurring body of water wherein the
lakebed is held in trust by the state. Rather, any property
rights Movriches may enjoy in regard to the man-made body of
water created by the flowage easement must be consistent with
Lobermeiers' property rights or the flowage easement's creation
of a navigable body of water. Because the placement of a pier
is inconsistent with Lobermeiers' fee simple property interest
and does not arise from the flowage easement that supports only
2
No. 2015AP583
public rights in navigable waters, Movriches' private property
rights are not sufficient to place a pier into or over the
waterbed of the Flowage without Lobermeiers' permission based on
the rights attendant to their shoreline property.
¶4 Second, we consider the nature of the flowage waters,
to which all agree the public trust doctrine applies, and
whether the public trust doctrine grants Movriches the right to
install a pier directly from their property onto or over the
portion of the waterbed that is privately owned by Lobermeiers.
In answering this inquiry, we consider whether and to what
extent the existence of navigable waters over Lobermeiers'
privately-owned property affects Lobermeiers' rights.
¶5 On this issue, we conclude that the public trust
doctrine conveys no private property rights, regardless of the
presence of navigable water. In a flowage easement such as is
at issue here, title to the property under the flowage may
remain with the owner. While the public trust doctrine provides
a right to use the flowage waters for recreational purposes,
that right is held in trust equally for all. Furthermore,
although the Lobermeiers' property rights are modified to the
extent that the public may use the flowage waters for
recreational purposes, no private property right to construct a
pier arises from the public trust doctrine.
¶6 Third, we consider whether the Wisconsin public trust
doctrine when combined with the shoreline location of Movriches'
property allows Movriches to access and exit the flowage waters
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No. 2015AP583
directly from their abutting property; or, whether, because
Lobermeiers hold title to the flowage waterbed, Movriches must
access the Flowage from the public access. On this issue, we
conclude that as long as Movriches are using the flowage waters
for purposes consistent with the public trust doctrine, their
own property rights are sufficient to access and exit the
Flowage directly from their shoreline property.
¶7 Accordingly, we affirm the court of appeals in part
and reverse it in part.
I. BACKGROUND
¶8 This appeal concerns the tension between asserted
riparian rights, ownership of property underlying a flowage, and
Wisconsin's public trust doctrine. More specifically, property
owners David and Diane Lobermeier appeal from a judgment
granting Jerome and Gail Movrich the right to place a pier into
and over Lobermeiers' property and to access Sailor Creek
Flowage directly from Movriches' abutting property. Movrich v.
Lobermeier, 2016 WI App 90, 372 Wis. 2d 724, 889 N.W.2d 454.
¶9 The Sailor Creek Flowage is a 201 acre, man-made lake
located near the Town of Fifield in Price County, Wisconsin. It
was created by a dam placed on Sailor Creek in 1941. At that
time, a Deed of Flowage Rights was executed by Margaret
Hussmann, who granted the Town of Fifield "the perpetual rights,
privilege and easement to submerge, flood and/or raise the
ground water elevation" of the underlying property. Over time,
the property that Hussmann subjected to the flowage easement in
4
No. 2015AP583
1941 was transferred to various persons. Some of that property
was deeded to brothers David and Robert Lobermeier in 2000,
while other property eventually became the Sailor Creek Flowage
Subdivision, where Movriches purchased property in 2006.
¶10 Today, Lobermeiers own a portion of the waterbed of
the Flowage that is subject to the Hussmann flowage easement.
Lobermeiers' portion of the waterbed abuts Movriches' property.3
David Lobermeier and Gail Movrich are brother and sister. For a
number of years the families existed in harmony, each making use
of a pier on the Movrich property to moor their boats, and from
which they swam and fished. In about 2011 or 2012, however, the
families had a falling out, at which point Lobermeiers began to
assert that they have exclusive rights to the waterbed at issue.
Lobermeiers concede that the Wisconsin public trust doctrine
grants Movriches, and all other members of the public, access to
the Flowage's waters for navigation and recreation purposes.4
¶11 This case originally involved several properties, each
of which abutted the Lobermeier waterbed property. David
3
The Movrich property is legally described as Lot One (1)
of Sailor Creek Subdivision. A surveyor's description of the
Sailor Creek Subdivision provides that the lots run "to the
shoreline" of the Flowage and thence "along said shoreline."
4
The Flowage is navigable, meaning that it is capable of
supporting at least light water craft at some time during the
year. It is considered a public water pursuant to Wis. Stat.
§ 30.10 (2013-14). It is undisputed that the public trust
doctrine applies to the Flowage.
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
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No. 2015AP583
Lobermeier first brought an action against Robert D. McWilliams,
who sought a declaration that Wisconsin's public trust doctrine
granted to McWilliams the right to access Lobermeiers' waterbed
property from McWilliams' abutting lot, as well as the right to
install the pads of his pier directly on the bed of the Flowage,
i.e., on the Lobermeier waterbed property.
¶12 Separately, Movriches filed a summons and complaint
against Lobermeiers seeking a declaration of their right to
install and maintain a pier extending from their land over the
Flowage for boating and recreational purposes and their right to
enter the Flowage directly from their shoreline property
pursuant to their asserted riparian rights and for purposes
commonly sanctioned by the public trust doctrine. These cases
were consolidated and heard together in Price County circuit
court.
¶13 Following a one-day trial, the circuit court granted
judgment in favor of Movriches, declaring that they "have the
right to enter the waters of the said Sailor Creek Flowage from
their said real estate . . . [and] to erect, maintain, and use a
dock or pier anchored on their said real estate and extending
over the waters of the said Sailor Creek Flowage . . . ." The
circuit court enjoined Lobermeiers from coming upon Movriches'
property and from interfering or hindering Movriches in the
exercise of their rights of ownership. The circuit court
limited its analysis to the public trust doctrine, concluding
that the doctrine includes the right of an abutting property
6
No. 2015AP583
owner to place a pier on or over privately-owned land when it is
submerged beneath navigable water. The court of appeals
affirmed.
¶14 Lobermeiers petitioned for review, challenging the
court of appeals' conclusion that the public trust doctrine
allows Movriches to access the Flowage directly from their
abutting property or to install and maintain a pier over the
Flowage, whether supported by posts resting on the Flowage bed
or by flotation devices. We granted review and, for the reasons
explained below, we now affirm in part and reverse in part.
II. DISCUSSION
A. Standard of Review
¶15 The relevant facts are not disputed. Accordingly, we
focus on whether prior court decisions properly applied the
principles of property law, riparian rights, and the public
trust doctrine. These are questions of law that we
independently review. Phelps v. Physicians Ins. Co. of Wis.,
Inc., 2009 WI 74, ¶35, 319 Wis. 2d 1, 768 N.W.2d 615; Linden v.
Cascade Stone Co., Inc., 2005 WI 113, ¶5, 283 Wis. 2d 606, 699
N.W.2d 189.
B. General Principles
¶16 The parties have not presented any case law discussing
the interplay between basic property rights, riparian rights,
and the public trust doctrine under these or similar facts,
i.e., where the bed of a navigable body of water is privately
owned, only in part. We address each issue in turn.
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No. 2015AP583
1. Private Property Rights
¶17 Both the circuit court and the court of appeals
analyzed the public trust doctrine and considered the rights of
alleged riparian owners without first addressing the various
types of common law property rights presented herein. We agree
with Lobermeiers that we must begin our analysis by addressing
their private property rights and those of Movriches,
respectively, because both assert private property interests,
those of the waterbed-owning Lobermeiers and those of the
shoreline-owning Movriches.
¶18 Lobermeiers own their submerged property in fee
simple. "Authorities to prove that a fee-simple estate is the
highest tenure known to the law are quite unnecessary, as the
principle is elementary and needs no support." Lycoming Fire
Ins. Co. of Muncy, Pa. v. Haven, 95 U.S. 242, 245 (1877). An
owner in fee simple is presumed to be the "entire,
unconditional, and sole owner[] of [any] buildings as well as
the land . . . ." Id. This is true regardless of whether the
property has positive economic or market value. See Phillips v.
Wash. Legal Found., 524 U.S. 156, 170 (1998).
¶19 In Wisconsin, the breadth of rights accompanying a fee
simple interest is settled law. See Walgreen Co. v. City of
Madison, 2008 WI 80, ¶44, 311 Wis. 2d 158, 752 N.W.2d 687
(describing the fee simple interest as the right to use,
possess, enjoy, dispose of, exclude, or the right not to
exercise any of these rights); ABKA Ltd. P'ship v. DNR, 2001 WI
8
 No. 2015AP583
App 223, ¶28, 247 Wis. 2d 793, 635 N.W.2d 168 ("A fee simple
interest means 'an interest in land that, being the broadest
interest allowed by law, endures until the current holder dies
without heirs . . . .'"). These rights are equally reflected in
federal law.5
¶20 The significance of property rights is reflected in
the law of damages. One who intentionally steps from his or her
own property onto the property of another, irrespective of
whether he or she thereby causes harm to any legally protected
interest of the other, is liable for trespass. Grygiel v.
Monches Fish & Game, 2010 WI 93, ¶40, 328 Wis. 2d 436, 787
N.W.2d 6; see also Restatement (Second) of Torts § 158.
Wisconsin law acknowledges that actual harm occurs in every
trespass. Jacque v. Steenberg Homes, 209 Wis. 2d 605, 619, 563
N.W.2d 154 (1997). Although consent to entry is generally a
defense to an action for trespass, consent may later be revoked.
Grygiel, 328 Wis. 2d 436, ¶41; Manor Enterprises, Inc. v. Vivid,
Inc., 228 Wis. 2d 382, 394, 596 N.W.2d 828 (1999); see also
Restatement (Second) of Torts § 160. However, fee simple
interests may be subject to certain limitations when an easement
5
See, e.g., Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 435 (1982) ("Property rights in a physical thing
have been described as the rights 'to possess, use and dispose
of it.'") ("The power to exclude has traditionally been
considered one of the most treasured strands in an owner's
bundle of property rights.").
9
No. 2015AP583
is granted. See Borek Cranberry Marsh, Inc. v. Jackson Cty.,
2009 WI App 129, ¶¶9-11, 321 Wis. 2d 437, 773 N.W.2d 522.
¶21 These principles of property law are crucial to our
analysis. However, despite the consideration of private
property rights, the presence of navigable water makes this a
more complicated case. We keep this in mind as we address
alleged riparian rights and the public trust doctrine.
2. Riparian Rights
¶22 Riparian rights may include "special rights to make
use of water in a waterway adjoining [an] owner's property."
93 C.J.S. Waters § 9. They are the "bundle of rights" that may
be conferred upon a property owner by virtue of his contiguity
to a navigable body of water. Mayer v. Grueber, 29 Wis. 2d 168,
174, 138 N.W.2d 197 (1965). Riparian rights are private
property rights, subject to and limited to some extent by the
public trust doctrine, discussed below. R.W. Docks & Slips v.
DNR, 2001 WI 73, ¶18, 244 Wis. 2d 497, 628 N.W.2d 781. We have
previously recognized that common law riparian rights may
include:
[t]he right to reasonable use of the waters for
domestic, agricultural and recreational purposes; the
right to use the shoreline and have access to the
waters; the right to any lands formed by accretion or
reliction; the right to have water flow to the land
without artificial obstruction; the limited right to
intrude onto the lakebed to construct devices for
protection from erosion; and the right, now
conditioned by statute, to construct a pier or similar
structure in aid of navigation.
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No. 2015AP583
Id., ¶21 (citing Cassidy v. DNR, 132 Wis. 2d 153, 159, 390
N.W.2d 81 (Ct. App. 1986)).
¶23 The extent of riparian rights varies in accordance
with the nature of the body of water at issue. Mayer, 29
Wis. 2d at 173. With respect to the owner of riverfront
property, a riparian owner may own to the thread of the stream.
Id. However, the title of a riparian owner is qualified and
subject to the interests of the state. Id. The "owner of land
abutting a natural lake or pond owns to the water line only."
Id. The lake bottom is held in trust for the people of the
state. Id.
¶24 In Wisconsin, there is a presumption that owning
property abutting a natural body of water confers certain
riparian rights. Id. at 174. However, Wisconsin common law
also establishes that riparian rights, including rights to use
the land beneath a body of water, are severable from basic
property rights if the deed in question makes that severability
clear. "[O]ne who acquires land abutting a stream or body of
water may acquire no more than is conveyed by his deed." Id.
In the case of a man-made body of water located wholly on the
property of a single owner, there is no presumption in favor of
riparian rights. Id. at 176.6 Rather, "all of the incidents of
6
In Mayer v. Grueber, explained in further detail below,
plaintiff Mayer sought an injunction to prevent Grueber from
trespassing onto the waters of a man-made lake, the bed of which
was entirely owned by Mayer. Mayer v. Grueber, 29 Wis. 2d 168,
170, 138 N.W.2d 197 (1965). Grueber counter-claimed, insisting
that as a "riparian owner" he was entitled to the beneficial use
(continued)
11
No. 2015AP583
ownership are vested in the owner of the land" to convey as he
or she expresses in conveyances. Id.
3. Public Trust Doctrine
¶25 Under the public trust doctrine, as a general rule,
the State of Wisconsin "holds the beds underlying navigable
waters in trust for all of its citizens." Muench v. Public
Serv. Comm'n, 261 Wis. 492, 501, 53 N.W.2d 514. However, a
riparian owner on the bank of a navigable stream may have a
qualified title in the stream bed to its center. Id. at 502.
The public rights protected under the public trust doctrine
include boating, swimming, fishing, hunting and preserving
scenic beauty. Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74,
¶72, 350 Wis. 2d 45, 833 N.W.2d 800.
¶26 The doctrine can be traced back to the Northwest
Ordinance of 1787, which set up the machinery for the government
of the Northwest Territory after the Revolutionary War.
Wisconsin Const. art. IX, § 1, adopted by the Territorial
Convention on February 17, 1848, adopted verbatim the words of
the Northwest Ordinance with respect to navigable waters:
The state shall have concurrent jurisdiction on all
rivers and lakes bordering on this state so far as
such rivers or lakes shall form a common boundary to
the state and any other state or territory now or
hereafter to be formed, and bounded by the same; and
the river Mississippi and the navigable waters leading
into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common
highways and forever free, as well to the inhabitants
and enjoyment of the lake. Id.
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No. 2015AP583
of the state as to the citizens of the United States,
without any tax, impost or duty therefor.
Muench, 261 Wis. 492 at 499-500.
¶27 Although the doctrine was originally intended to apply
only to water that was navigable per se, "[t]his court has long
held that the public trust in navigable waters 'should be
interpreted in the broad and beneficent spirit that gave rise to
it in order that the people may fully enjoy the intended
benefits.'" Rock-Koshkonong Lake Dist., 350 Wis. 2d 45, ¶72,
(citing Diana Shooting Club v. Husting, 156 Wis. 261, 271, 145
N.W. 816 (1914)). "Broadly interpreting the public trust has
resulted in recognition of more than just commercial
navigability rights. Protection now extends to 'purely
recreational purposes such as boating, swimming, fishing,
hunting, . . . and . . . preserv[ing] scenic beauty.'" Id. The
doctrine traditionally applies to all areas within the ordinary
high water mark of the body of water in question. R.W. Docks &
Slips, 244 Wis. 2d 497, ¶19.
¶28 The public trust doctrine does not convey private
property rights. Rather, for at least a century, we have
recognized the public trust doctrine as a limit on riparian
rights. Wisconsin common law has established that the right to
place structures for access to navigable water is "qualified,
subordinate, and subject to the paramount interest of the state
and the paramount rights of the public in navigable waters."
Id., ¶22. This is true even where the bed is privately held, as
long as the body of water is public, navigable and created by
13
No. 2015AP583
use of public waters. See Klingeisen v. DNR, 163 Wis. 2d 921,
927-28, 472 N.W.2d 603 (Ct. App. 1991).
¶29 The legislature, as trustee, is empowered to adopt
regulations to protect public rights established under the
public trust doctrine. See Ashwaubenon v. Public Serv. Comm'n,
22 Wis. 2d 38, 125 N.W.2d 647 (1963); State v. Bleck, 114
Wis. 2d 454, 465, 338 N.W.2d 492 (1983). Under this authority,
the legislature has enacted provisions regulating the placement
of any structure on the bed of navigable waters, unless placed
under permit or other legislative authority. See Wis. Stat.
§§ 30.12-30.13. However, where a waterbed is privately held,
the state has no authority to compel private property owners to
accept pier placement. See Mayer, 29 Wis. 2d at 170.
C. Application
1. Common Law Property Rights
¶30 The circuit court and court of appeals conducted their
analyses based on the assumption that the public trust doctrine
controls the outcome of this case. However, as noted above,
neither the public trust doctrine nor riparian rights principles
addresses private property interests between abutting property
owners. The presence of navigable water does not cancel private
property rights, although it may modify those rights.
¶31 We begin by examining the ownership interests of
Lobermeiers and Movriches, respectively. Lobermeiers own a
portion of the waterbed of the Flowage, purchased June 19, 2000.
At the time of purchase, David Lobermeier and his brother,
14
No. 2015AP583
Robert, were warrantied that there were no easements,
encroachments, walkways, or driveways affecting the property,
except those listed in the commitment, and that no claims of
easements, encroachments, walkways, or driveways had been made
during the previous owner's ownership. Movriches own Lot One
(1) of the Sailor Creek Subdivision. The boundary between
Movriches' property and Lobermeiers' property is the shoreline
of the Flowage, as described in the surveyor's certificate
admitted at trial.
¶32 In support of Lobermeiers' argument that they may
prohibit an abutting lot owner from placing a pier on or over
the Flowage, or from accessing the Flowage directly from their
abutting property, Lobermeiers cite to numerous state and
federal cases that lay the foundation of common law private
property rights.7 Movriches contend that these cases are
7
Loretto, 458 U.S. at 434 ("The power to exclude has
traditionally been considered one of the most treasured strands
in an owner's bundle of property rights."); Lycoming Fire Ins.
Co. of Muncy, Pa. v. Haven, 95 U.S. 242, 245 (1877) (concluding
that landowners under a fee simple title are presumed to be the
"entire, unconditional, and sole owners of the buildings as well
as the land . . . ."); Walgreen Co. v. City of Madison, 2008 WI
80, ¶44, 311 Wis. 2d 158, 752 N.W.2d 687 (concluding that fee
simple rights include the right of exclusion); Christensen v.
Mann, 187 Wis. 567, 581, 204 N.W. 499 (1925) ("[P]roperty rights
extend upwards from the surface to an unlimited extent
. . . ."); Burnham v. Merch. Exch. Bank, 92 Wis. 277, 280, 66
N.W. 510 (1896) (holding that courts must protect the right of
the owner to his property); Brownell v. Durkee, 79 Wis. 658,
663, 48 N.W. 241 (1891) (concluding that property rights should
be "protected and secured as far as possible."); ABKA Ltd.
P'ship v. DNR, 2001 WI App 223, ¶28, 247 Wis. 2d 793, 635
N.W.2d 168 (concluding that an interest in fee simple is the
broadest interest allowed by law).
15
No. 2015AP583
inapposite. While it is true that none of them addresses
shoreline property on a flowage, they all are relevant in
addressing principles of property law, which, as we have
acknowledged, must be considered.
¶33 Under both Wisconsin and federal law, a fee simple
estate is "the highest tenure known to the law." Lycoming Fire
Ins. Co. of Muncy, Pa., 95 U.S. at 245. Among other rights, an
owner in fee simple enjoys a basic right to exclude. It is
undisputed that were this contest between two upland property
owners, any encroachment by one onto the property of the other
would be trespass. Jacque, 209 Wis. 2d at 617-18. Lobermeiers'
property interests are subject to certain protections, as are
the public's interests in navigable water. See Muench, 261 Wis.
at 501-02. Therefore, unless riparian rights or the public
trust doctrine modify those rights, Movriches may not interfere
with the property rights of Lobermeiers. We therefore turn to
whether Movriches are riparian owners and what effect the public
trust doctrine has on Movriches' and Lobermeiers' respective
rights.
2. Riparian Rights
¶34 The Movriches allege that by virtue of owning "to the
shoreline" of the Flowage, they are riparian owners and
therefore entitled to all of the "amenities of waterfront
property," including the right to install and maintain a pier
extending from their property over the waters of the Flowage.
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No. 2015AP583
¶35 As we set forth in Mayer v. Grueber, riparian rights
vary depending on the body of water at issue.
A perusal of the cited cases shows that the owner of
property on a stream presumptively holds title to the
middle of the watercourse. The cases, however, are in
accord that the riparian rights and title to the land
under the water are severable if the deed makes that
limitation clear. In the case of natural lakes and
bodies of water, the adjacent landowner owns only to
the shore line; the lake bottom is held in trust for
the people of the state. In the case of artificial
bodies of water, all of the incidents of ownership are
vested in the owner of the land. An artificial lake
located wholly on the property of a single owner is
his to use as he sees fit, provided, of course, that
the use is lawful. He may if he wishes reserve to
himself or his assigns the exclusive use of the lake
or water rights.
Mayer, 29 Wis. 2d at 176.
¶36 It is not disputed that the Flowage was created by the
damming of Sailor Creek, a navigable public body of water, or
that the Flowage is subject to the public trust doctrine. What
is unclear, however, is whether, simply by virtue of their
property abutting the Flowage, Movriches are entitled to the
full "bundle of [riparian] rights" when the portion of the
waterbed of the Flowage adjacent to their property is privately
held. Id. at 174.
¶37 In Mayer, we considered whether defendant, Grueber,
who owned property to the shoreline of an artificial lake, the
bed of which was entirely owned by Mayer, was entitled to
riparian rights despite the language of his deed. We concluded
that he was not. First, the deed in question described the
boundary of Grueber's property as "along the easterly bank."
17
No. 2015AP583
Id. at 175. We concluded that "riparian rights and title to the
land under the water are severable if the deed makes that
limitation clear." Id. at 176. Second, Grueber was
specifically told that ownership of the tract would not entitle
him or his wife to use of the lake. Id. at 172. After the
Gruebers purchased the land and commenced using the lake for
recreational purposes, they were accused of trespass by the
Mayers and ordered off the lake. Id. at 172-73.
¶38 Movriches argue that Mayer should be limited to
situations where the entire lakebed is privately owned, and that
their riparian rights arise out of ownership of shoreline
property without regard to the ownership of the waterbed.
Lobermeiers, however, argue the court of appeals failed to
express or articulate why owning the entire portion of a
waterbed matters. Instead, they assert that their private
property rights are no less important than Movriches' alleged
riparian rights, and that the public trust doctrine cannot be
used as a basis for allowing an abutting property owner to
install a pier onto or over the Flowage, or to allow Movriches
to access Lobermeiers' property directly from their abutting
lot. Both parties have overstated their cases.
¶39 While we agree that the facts in Mayer differ from
those presented herein, that difference is insufficient to
extinguish Lobermeiers' fee simple interest in the waterbed that
abuts Movriches' shoreline property. As we have explained, the
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No. 2015AP583
public trust doctrine does not convey private property rights.8
Rather, it establishes rights of use of navigable waters that
are held in trust for all members of the public.
3. Extent of Movriches' Rights
¶40 Movriches claim that because their property borders on
the shoreline of the Flowage they have riparian rights
incidental to property ownership that borders a naturally
occurring body of water, such as installing and maintaining a
pier for ordinary boating and recreational purposes.
¶41 First, they argue that the property law cited by
Lobermeiers is inapposite and does not stand for the proposition
that the owner of a flowage waterbed has the right to exclude
access for pier placement. As explained above, we disagree,
because underlying legal principles applicable to adjacent
property owners are not extinguished and must be considered. On
the contrary, the authorities cited by Movriches——namely, Rock-
Koshkonong Lake Dist. v. DNR, Muench v. Public Serv. Comm'n,
Doemel v. Jantz, and Diana Shooting Club v. Husting——do not
support the proposition that Lobermeiers' fee simple title is
overridden by Movriches alleged riparian rights.
8
As discussed above, the public trust doctrine has been
"expansively interpreted to safeguard the public's use of
navigable waters for purely recreational purposes such as
boating, swimming, fishing, hunting, recreation, and to preserve
scenic beauty." R.W. Docks & Slips v. State of Wis., 2001 WI
73, ¶19, 244 Wis. 2d 497, 628 N.W.2d 781 (2001).
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No. 2015AP583
¶42 In Doemel v. Jantz, we addressed whether a member of
the public has a lawful right to enter and travel upon that
portion of Lake Winnebago between the ordinary high and low
water marks. In answering this question, we defined the scope
of riparian rights and quoted, with approval, the following
statement of law:
Those [riparian] rights are not common to the citizens
at large, but exist as incidents to the right of soil
itself contiguous to and attingent on the water. In
such ownership [of the shoreland], they have their
origin, and not out of the ownership of the bed, and
they are the same whether the riparian owner owns the
soil under the water or not.
Doemel, 180 Wis. at 231.
¶43 Movriches read this statement to mean that by virtue
of owning to the shoreline of the Flowage, they are entitled to
the full range of riparian rights.9 However, in Doemel we
addressed an entirely different type of water, both in its
nature and in ownership. Unlike the Flowage, Lake Winnebago is
a naturally occurring lake. Although its water levels were
artificially raised in 1850 and 1930, it is not man-made and, as
far as we can tell, no portion of Lake Winnebago's waterbed is
privately owned. Therefore, because there was no conflict
between shoreline property and a privately-owned waterbed,
9
Specifically, in Doemel we held that "[t]he riparian owner
also has the right to build piers, harbors, wharves, booms, and
similar structures . . . incident to the ownership of the
upland." Doemel v. Jantz, 180 Wis. 225, 231, 193 N.W. 393
(1923).
20
No. 2015AP583
Doemel is not dispositive. Rather, we read Doemel as addressing
the range of riparian rights appurtenant to property ownership
on natural, public, navigable lakes.
¶44 In Diana Shooting Club, we considered whether the
right to hunt and fish on navigable waters is limited where the
title to the land covered by the waters is privately held. We
concluded that the public trust doctrine "should be interpreted
in the broad and beneficent spirit that gave rise to it in order
that the people may fully enjoy the intended benefits." Diana
Shooting Club, 156 Wis. at 271. In so holding, we explained
that riparian owners, although they may hold qualified title to
the thread of a stream or river, may not interfere with public
navigation or other rights incident to the public trust
doctrine. This remains good law. However, while Diana Shooting
Club spoke specifically to the Rock River, in the case at hand
we are tasked with determining what rights the owners of land on
which a man-made flowage now rests may assert against owners
whose property ends at the shoreline. Diana Shooting Club is
not helpful in deciding that question.
¶45 For similar reasons, we conclude that Movriches'
reliance on Rock-Koshkonong and Muench is misplaced. In Rock-
Koshkonong, we were tasked with determining, among other issues,
whether the Wisconsin Department of Natural Resources (DNR)
properly relied on the public trust doctrine for its authority
to protect non-navigable land and non-navigable water above the
ordinary high water mark. Rock-Koshkonong, 350 Wis. 2d 45, ¶11.
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No. 2015AP583
We concluded that, in attempting to extend its public trust
jurisdiction beyond navigable waters to non-navigable waters and
land, the DNR moved beyond the language of the Constitution.
Id., ¶77.
¶46 Movriches cite to paragraph 78 of Rock-Koshkonong, in
which we wrote that riparian ownership runs to the center or
thread of a stream as a "qualified title in the stream beds."
Id., ¶78. However, the Movrich property does not border a
stream; it borders a 201 acre flowage. Paragraph 78 provides no
support for Movriches' assertion that they have the right to
build a pier upon the Lobermeiers' property; it deals solely
with the rights of the public under the public trust doctrine.
¶47 Some may read Minehan v. Murphy, 149 Wis. 14, 134 N.W.
1130 (1912), as giving assistance to Movriches. However,
Minehan was an action in ejectment from the waterbed of
navigable waters. Id. at 14. There, Minehan's title described
her western boundary as "the center line of the creek." Id. at
14-15. She sought to eject Murphy from encroaching on her side
of the creek's center line. Id. at 15. The question on which
the case turned was whether the navigable water that bordered
Minehan's land was a lake or a river. Id. at 16. If it was a
river, she had rights to the center line; if it was a lake, she
did not. The navigable water was determined to be a river, and
Minehan won. Id. at 17. However, Minehan has nothing to do
with whether Movrich has the right to place a pier on
Lobermeiers' property.
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No. 2015AP583
¶48 Haase v. Kingston Co-operative Creamery Ass'n, 212
Wis. 585, 250 N.W. 444 (1933), sets aside any misinterpretation
of Minehan that would support a taking of private property
rights due to a flowage upon private lands. Id. at 588. Haase
was an action to recover for ice taken by Kingston from a
flowage over lands Haase owned in fee. Id. at 586. Kingston
claimed that due to the navigable waters over Haase's land for
an extended time, title to the waterbed had passed to the state
and, therefore, harvesting ice was part of the public's use of
navigable waters. Id. We disagreed with Kingston's contention,
and concluded that "title to the ice formed on this pond was in
the plaintiff as the owner of the land beneath the same, and he
is entitled to recover the value of the ice taken by the
defendant." Id. at 589.
¶49 Finally, in Muench we traced the evolution of the
public trust doctrine to determine whether the Public Service
Commission was required to make findings as to whether a
proposed dam would violate the doctrine. Again, we stated that
private title to the waterbed underlying navigable waters is
qualified and subject to the public's right to use and enjoy the
water. Muench, 261 Wis. at 504-05. In other words, the owner
of a waterbed may not use his or her property in such a way as
to interfere with public rights. What we did not say was that
the owner of a waterbed may not exercise his or her property
rights in a way that interferes with another property owner's
assertion of riparian rights.
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No. 2015AP583
¶50 In short, Movriches argue that these cases (and
others) establish their right as riparian owners, and,
independently, under the public trust doctrine, to install and
maintain a pier anchored on their property and extending over or
into the Lobermeiers' property. This reasoning completely
ignores the property rights of Lobermeiers, including their
right to exclude. As the United States Supreme Court has
written:
[A]n owner suffers a special kind of injury when a
stranger directly invades and occupies the owner's
property . . . . [P]roperty law has long protected an
owner's expectation that he will be relatively
undisturbed at least in the possession of his
property. To require, as well, that the owner permit
another to exercise complete dominion literally adds
insult to injury.
Loretto, 458 U.S. at 436-37.
¶51 Furthermore, both state and federal jurisprudence
conclude that the common law property right to exclude applies
both above and below a property's physical surface. See
Loretto, 458 U.S. at 436 n.13 ("[A]n owner is entitled to the
absolute and undisturbed possession of every part of the
premises, including the space above, as much as a mine
beneath."); Christensen v. Mann, 187 Wis. at 581 ("As property
rights extend upwards from the surface to an unlimited extent,
they also extend downwards into the soil, . . . ."). Moreover,
we have consistently held that "due regard should be had to the
rights which the owner has to his property, and that these
24
No. 2015AP583
rights should be protected and secured as far as possible."
Brownell, 79 Wis. at 663.
¶52 Movriches also argue that they had the expectation
that their property would include riparian rights, specifically
the right to install a pier. First, they argue their property
was marketed and sold as a "waterfront lot," and that at the
time of purchase many of the properties on the Flowage
maintained "open and obvious" piers. Second, they claim they
purchased this lot specifically because it was a shoreline
property, and for a period of years thereafter they made use of
the Flowage by fishing, using a pier to moor their boat,
swimming, and kayaking. These arguments may have had arguable
merit if Movriches had purchased their property from Lobermeiers
or if they had obtained an easement or license from Lobermeiers.
However, neither of these events occurred. Furthermore, their
arguments ignore Mayer's clear directive that "one who acquires
land abutting a stream or body of water may acquire no more than
is conveyed by his deed." Mayer, 29 Wis. 2d at 174.
¶53 The original conveyance given by Margaret Hussman to
the Town of Fifield on September 13, 1941, did not convey any
ownership interest in her land. Rather, it conveyed a type of
easement to permit water to flow on her land. Borek Cranberry
Marsh, 321 Wis. 2d 437, ¶¶9-11.
¶54 When Movriches took title to their land, the legal
description on their deed made no reference to riparian rights.
Meanwhile, the surveyor's certificate clearly indicated that
25
No. 2015AP583
their property extended only "to the shoreline" of the Flowage.
Although they claim they purchased the lot with the intention of
maintaining a pier, they did not purchase their lot from
Lobermeiers, and their deed describes no legal right, title, or
interest in the flowage waterbed.
¶55 We conclude that, as to the pier issue, Movriches have
failed to establish that they are entitled to those riparian
rights that are incidental to property ownership along a
naturally occurring body of water where the lakebed is held in
trust by the state or that the public trust doctrine creates an
exception to Lobermeiers' property rights in the waterbed that
is sufficient for placement of Movriches' pier on Lobermeiers'
property. Therefore, Lobermeiers may prevent Movriches from
installing a pier onto or over Lobermeiers' property without
their permission.
4. Movriches as Members of the Public
¶56 Were these properties both upland, Movriches would be
unable to step from their property onto Lobermeiers' property
without trespassing. Jacque, 209 Wis. 2d at 617-18. Here,
however, Lobermeiers' property is submerged beneath a public
flowage that is indisputably subject to the public trust
doctrine. This qualifies Lobermeiers' rights in regard to
public use. Therefore, we agree that Movriches, as members of
the public, are entitled to access and exit from the Flowage by
way of their own shoreline property for purposes consistent with
the public trust doctrine, e.g. swimming, fishing, and boating.
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No. 2015AP583
¶57 Lobermeiers ask us to conclude that this case is
analogous to Mayer, where we held that because defendant Grueber
had no ownership rights in the bed of the lake at issue, "he
ha[d] no other rights in the waters over the bed of the lake
unless he acquired those rights by prescription or adverse
possession." Mayer, 29 Wis. 2d at 176. However, Mayer is
distinguishable because the public trust doctrine did not apply
in Mayer. Accordingly, we conclude that where the public trust
doctrine applies to the body of water, an abutting property
owner's rights are sufficient to access and exit the water.
However, while Movriches may access and exit the Flowage from
their own property for recreation purposes, Lobermeiers may not
access or exit the Flowage except through the public access or
with the permission of an owner of property bordering the
Flowage.
III. CONCLUSION
¶58 There are three issues presented in this review.
First, we conclude that while Movriches' property borders the
Flowage, they are not entitled to those riparian rights that are
incidental to property ownership along a naturally occurring
body of water where the lakebed is held in trust by the state.
Rather, any rights Movriches may enjoy in regard to the man-made
body of water created by the flowage easement must be consistent
with Lobermeiers' property rights or the flowage easement's
creation of a navigable body of water. Because the placement of
a pier is inconsistent with Lobermeiers' fee simple interest and
27
No. 2015AP583
does not arise from the flowage easement that supports only
public rights in navigable waters, Movriches' private property
rights are not sufficient to place a pier into or over the
waterbed of the Flowage without Lobermeiers' permission based on
the rights attendant to their shoreline property.
¶59 Second, we consider the nature of the Flowage waters,
to which all agree the public trust doctrine applies, and
whether the public trust doctrine grants Movriches the right to
install a pier directly from their property onto or over the
portion of the Flowage whose waterbed is privately owned by
Lobermeiers. In answering this inquiry, we consider whether and
to what extent the existence of navigable waters over
Lobermeiers' privately-owned property affects Lobermeiers'
rights.
¶60 On this issue, we conclude that the public trust
doctrine conveys no private property rights, regardless of the
presence of navigable water. In a flowage easement such as is
at issue here, title to the property under the flowage may
remain with the owner. While the public trust doctrine provides
a right to use the flowage waters for recreational purposes,
that right is held in trust equally for all. Furthermore,
although the Lobermeiers' property rights are modified to the
extent that the public may use the flowage waters for
recreational purposes, no private property right to construct a
pier arises from the public trust doctrine.
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No. 2015AP583
¶61 Third, we consider whether the public trust doctrine,
when combined with the shoreline location of Movriches'
property, allows Movriches to access and exit the flowage waters
directly from their abutting property; or, whether, because
Lobermeiers hold title to the flowage waterbed, Movriches must
access the Flowage from the public access. On this issue, we
conclude that as long as Movriches are using the flowage waters
for purposes consistent with the public trust doctrine, their
own property rights are sufficient to access and exit the
Flowage directly from their shoreline property.
¶62 Accordingly, we affirm the court of appeals in part
and reverse it in part.
By the Court.—The decision of the court of appeals is
affirmed in part; reversed in part.
29
No. 2015AP583.ssa
¶63 SHIRLEY S. ABRAHAMSON, J. (concurring in part,
dissenting in part). I join Justice Rebecca G. Bradley's
separate writing except for Part II.
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No. 2015AP583.rgb
¶64 REBECCA GRASSL BRADLEY, J. (concurring in part;
dissenting in part). Riparian rights in Wisconsin are sacred.1
For many, waterfront property in Wisconsin provides more than
merely a place to live——it affords a lifestyle. The proverbial
cottage "up north" offers the opportunity for fishing off the
pier in the morning, waterskiing with children or grandchildren
in the afternoon, and an early evening ride on the pontoon boat
with friends and neighbors. None of this is possible absent
riparian rights. Traditionally, these rights have included "the
right to build piers, harbors, wharves, booms, and similar
structures, in aid of navigation, and such right is also one
which is incident to the ownership of the upland." Doemel v.
Jantz, 180 Wis. 225, 231, 193 N.W. 393 (1923). The majority
opinion sweeps away these cherished and longstanding property
rights and extinguishes riparian rights for those with cottages
or homes on Wisconsin's waters called flowages.
1
"Riparian" is defined as "relating to or living or located
on the bank of watercourse (as a river or stream) or sometimes a
lake." Webster's Third New International Dictionary of the
English Language 1960 (3d ed. 1986). "Sacred" as used in this
context, as in other riparian rights cases, is used to describe
something secured against violation or infringement rather than
in the religious sense. See, e.g., Chapman v. Oshkosh & M.R.R.
Co., 33 Wis. 629, 637 (1873) ("And he holds every one of these
[riparian] rights by as sacred a tenure as he holds the land
from which they emanate."); Avery v. Fox, 2 F. Cas. 245, 247
(C.C.W.D. Mich. 1868) ("This right of private persons to the use
of water as it flows by or through their lands, in any manner
not inconsistent with the public easement, is as sacred as is
the right of a person to his land, his house, or his personal
property.").
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No. 2015AP583.rgb
¶65 The issues before this court are (1) whether Jerome
and Gail Movrich may maintain a pier resting over David and
Diane Lobermeiers' flowage bed property either as part of their
riparian rights or under the public trust doctrine, and (2)
whether the Movriches have the right to cross the Lobermeiers'
flowage bed from their own property to use and enjoy the flowage
waters for recreational purposes. As to the first issue, the
majority reverses the court of appeals, concluding the
Lobermeiers own the flowage bed in fee simple absolute,
entitling them to exclude the Movriches from erecting a pier.
As to the second issue, the majority affirms the court of
appeals and holds that the Movriches nevertheless have the right
to access and enjoy the flowage bed from their property pursuant
to the public trust doctrine.
¶66 I agree with the majority's conclusion that the
Movriches may access the flowage from their property; I too
would affirm the court of appeals on this issue.2 I disagree,
however, with the majority's conclusion that the Movriches are
prohibited from erecting a pier. In defining the Lobermeiers'
property rights in terms of fee absolute ownership, the majority
ignores the most salient fact of this case: the presence of
navigable water over the Lobermeiers' property. The presence of
navigable water for over three quarters of a century alters the
2
See also deNava v. DNR, 140 Wis. 2d 213, 222, 409
N.W.2d 151 (Ct. App. 1987) ("Since the riparian owner has the
exclusive right of access to and from navigable waters to his
shore, the riparian owner has exclusive riparian rights.").
2
No. 2015AP583.rgb
Lobermeiers' property rights in the waterbed, subordinating them
to the riparian rights of the Movriches and the rights of the
public under the public trust doctrine. Accordingly, I would
affirm the court of appeals on this issue, although I would
clarify that riparian rights are independent private property
rights, which are not conferred under the public trust doctrine.
¶67 The majority opinion overlooks the interplay between
private property rights, riparian rights and the public trust
doctrine. Although separate and distinct, these competing
rights intertwine and the majority opinion errs in its rigid
approach toward applying them to the Movriches' and the
Lobermeiers' property interests. The majority adopts an
unprecedented holding that a fee simple interest in land
submerged by water cancels riparian rights presumptively
recognized under the common law for at least 140 years. The
consequences of what began as a family squabble are not confined
to the parties before us but fundamentally transform property
rights for thousands of Wisconsin property owners along hundreds
of flowages.3 Such a dramatic change in the law should be the
legislature's prerogative, not that of the four justices
comprising the majority.
¶68 Ultimately, I conclude the Lobermeiers' title to a
portion of the waterbed beneath the Sailor Creek Flowage is
qualified by the existence of navigable water; the Movriches are
entitled to erect and maintain a pier as part of the bundle of
3
See generally Wis. Dep't of Nat. Res., Wisconsin Lakes
(2009), http://dnr.wi.gov/lakes/lakebook/wilakes2009bma.pdf.
3
No. 2015AP583.rgb
rights they enjoy as riparian owners; and the public trust
doctrine confers rights on the public to use the flowage.
Accordingly, I respectfully concur in part and dissent in part.
I
¶69 From its beginnings, Wisconsin prioritized public
access to the watercourses across the state. This preference is
richly embodied in the public trust doctrine, which finds roots
in the Northwest Ordinance and materialized upon statehood
through the adoption of Article IX, Section 1 of the Wisconsin
Constitution.4 Under the public trust doctrine, the state holds
the waters and beds of navigable lakes in trust for all of its
4
"The United States [S]upreme [C]ourt in Barney v. Keokuk
(1876), 94 U.S. 324 . . . declared that the individual states
have the right to determine for themselves the ownership of land
under navigable waters." Rock-Koshkonong Lake Dist. v. DNR,
2013 WI 74, ¶79, 350 Wis. 2d 45, 833 N.W.2d 800 (quoting Muench
v. Pub. Serv. Comm'n, 261 Wis. 501, 501, 53 N.W.2d 514, adhered
to on reh'g, 261 Wis. 492, 55 N.W.2d 40 (1952)). Article IX,
Section 1 states: "The state shall have concurrent jurisdiction
on all rivers and lakes bordering on this state so far as such
rivers or lakes shall form a common boundary to the state and
any other state or territory now or hereafter to be formed, and
bounded by the same; and the river Mississippi and the navigable
waters leading into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common highways and
forever free, as well to the inhabitants of the state as to the
citizens of the United States, without any tax, impost or duty
therefor."
4
No. 2015AP583.rgb
citizens.5 Conversely, the public trust doctrine has been
interpreted to "give[] riparian owners along navigable streams a
qualified title in the stream beds to the center of the stream,
while the state holds the navigable waters in trust for the
public. In reality, the state effectively controls the land
under navigable streams and rivers without actually owning it."6
Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶78, 350
Wis. 2d 45, 833 N.W.2d 800. "The rule is different with respect
to the beds under streams[ ] in part because streams can change
course, streams can become unnavigable over time, and navigable
streams can be very narrow and shallow, so that
state ownership of stream beds could be problematic and
impractical." Id., ¶82 (footnote omitted).
5
The doctrine was "originally designed to protect
commercial navigation," but its applicability has since "been
expanded to safeguard the public's use of navigable waters for
purely recreational and nonpecuniary purposes." State v. Bleck,
114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) (citing Muench, 261
Wis. 492); see also Diedrich v. N. W. U. Ry. Co., 42 Wis. 248
(1877); Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84
N.W. 855 (1901); Joseph D. Kearney & Thomas Merrill, The Origins
of the American Public Trust Doctrine: What Really Happened in
Illinois Central, 71 Univ. Chic. L. Rev. 799 (2004). "The
legislature has the primary authority to administer the public
trust for the protection of the public's rights, and to
effectuate the purposes of the trust." Hilton ex rel. Pages
Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19, 293 Wis. 2d 1, 717
N.W.2d 166 (citing Bleck, 114 Wis. at 465).
6
"It is said that the controlling distinction between a
stream and a lake or pond is that in the one case the water has
a natural motion,——a current,——while in the other the water is,
in its natural state, substantially at rest, and this entirely
irrespective of the size of the one or the other." Ne-Pee-Nauk
Club v. Wilson, 96 Wis. 290, 295, 71 N.W. 661 (1897) (citation
omitted).
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¶70 The public trust doctrine applies to lakes and streams
that are "navigable in fact for any purpose." Wis. Stat.
§ 30.10 (providing that lakes and streams, if navigable in fact,
are public waterways); see State v. Bleck, 114 Wis. 2d 454, 459-
60, 338 N.W.2d 492 (1983). In the absence of a legislative
declaration applying specifically to a certain type of
watercourse, "navigability is a question of fact." Klingeisen
v. DNR, 163 Wis. 2d 921, 931, 472 N.W.2d 603 (Ct. App. 1991)
(citing Angelo v. Railroad Comm'n, 194 Wis. 543, 552, 217
N.W. 570 (1928)) (holding that "[t]he public trust doctrine, to
be effective, must also extend to public, artificial waters that
are directly and inseparably connected with natural, navigable
waters"). A finding of navigability in fact is a fairly low bar
to meet and thousands of waterways in Wisconsin are considered
navigable. Here, it is not disputed that the Sailor Creek
Flowage is navigable. Majority op., ¶10, n.4.
¶71 If a body of water is navigable in fact, then its use
is subject to the public trust doctrine, which permits all
people to use the waters in aid of navigation and for hunting,
fishing, and other recreational purposes. Diedrich v. Nw. Union
Ry. Co., 42 Wis. 248, 264 (1877); Illinois Steel Co. v. Bilot,
109 Wis. 418, 425, 84 N.W. 855 (1901); Diana Shooting Club v.
Husting, 156 Wis. 261, 271-73, 145 N.W. 816 (1914). If a body
of water is not navigable, "the public has no easement; and the
riparian owner may, in general, put his estate under the water
to any proper use he may please, not infringing upon the rights
6
No. 2015AP583.rgb
of other riparian owners, and not violating any public law."
Diedrich, 42 Wis. at 264.
¶72 The applicability of the public trust doctrine does
not purport to give a riparian owner more rights than those of
the public; indeed, the public trust doctrine does not confer
riparian rights at all. Riparian rights exist under the common
law as private property rights, independent of and subject to
the public trust doctrine. Indeed, the public's right to use
the waters for purposes recognized under the public trust
doctrine may supersede a riparian owner's various rights of use.
Bleck, 114 Wis. 2d at 467 ("[Riparian] rights, however, are
still subject to the public's paramount right and interest in
navigable waters."). Nevertheless, by virtue of owning property
on the banks of navigable water, the public trust doctrine puts
a riparian owner's exercise of otherwise public rights in a
unique position.
[A] riparian owner upon navigable water, whether or
not he own the soil usque ad medium filum aquæ, and
unless prohibited by local law, has a right to
construct in shoal water, in front of his land, proper
wharves or piers, in aid of navigation, and at his
peril of obstructing navigation, through the water far
enough to reach actually navigable water; this being
held to further the public use of the water, to which
the public title under the water is subordinate; and
therefore to be, in the absence of prohibition,
passively licensed by the public, and not a
pourpresture.
7
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Diedrich, 42 Wis. at 262 (1877).7
¶73 If the Lobermeiers owned the entire waterbed beneath
the flowage, the Movriches would not be able to maintain and
erect a pier because they would enjoy no riparian rights under
the common law. Mayer v. Grueber, 29 Wis. 2d 168, 176, 138
N.W.2d 197 (1965). Of course, the owner of land who creates an
artificial body of water not originating from natural, navigable
water may permit members of the public, as well as owners of
land abutting the waterbody, to use the water but under those
circumstances such rights of use arise solely from the
prerogative of the waterbed owner rather than common law
riparian rights or the public trust doctrine. See id. (citing
Haase v. Kingston Coop. Creamery Ass'n, 212 Wis. 585, 588, 250
N.W. 444 (1933)). However, the Lobermeiers own only a portion
of the waterbed, the public trust doctrine applies to the
flowage because it originates from the public, natural, and
navigable waters of Sailor Creek, and the Movriches have a
fundamental right to place a pier in the water as riparian
owners whose land abuts natural, navigable waters.
¶74 "Riparian owners are those who have title to the
ownership of land on the bank of a body of water." ABKA Ltd.
P'ship v. DNR, 2002 WI 106, ¶57, 255 Wis. 2d 486, 648 N.W.2d 854
7
"Usque ad medium filum aquæ" means "up to the middle of
the stream." Usque Ad Filum Aquæ, Black's Law Dictionary (1st
ed. 1891). A "pourpresture," also spelled "purpresture," is
"[a]n inclsoure by a private party of a part of that which
belongs to and ought to be open and free to the public at
large." Purpresture, Black's Law Dictionary (1st ed. 1891).
8
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(citing Ellingsworth v. Swiggum, 195 Wis. 2d 142, 148, 536
N.W.2d 112 (Ct. App. 1995)) (emphasis added); see also Diedrich,
42 Wis. at 262 (1877) ("Riparian rights proper are held to rest
upon title to the bank of the water, and not upon title to the
soil under the water."); Doemel v. Jantz, 180 Wis. 225, 230, 193
N.W. 393 (1923); Mayer v. Grueber, 29 Wis. 2d 168, 173, 138
N.W.2d 197 (1965) ("Riparian land is land so situated with
respect to a body of water that, because of such location, the
possessor of the land is entitled to the benefits incident to
the use of the water." (Citations omitted.)); Stoesser v. Shore
Drive P'ship, 172 Wis. 2d 660, 665, 494 N.W.2d 204 (1993)
(citing 78 Am. Jur. 2d Waters § 260 (1975)). Riparian rights
"are not dependent upon the ownership of the soil under the
water, but upon his title to the banks." Doemel, 180
Wis. at 230 (first citing Diedrich, 42 Wis. at 248; then citing
Delaplaine v. C.& N.W. Ry. Co., 42 Wis. 214 (1877); then citing
Green Bay, etc., Co. v. Kaukauna Water Power Co., 90 Wis. 370
(1895); then citing State ex rel. Wausau St. Ry. Co. v.
Bancroft, 148 Wis. 124, 134 N.W. 330 (1912)).
¶75 A riparian owner is presumptively entitled to certain
rights, including:
the rights of the owner of lands upon water to
maintain his adjacency to it, and to profit by this
advantage, and otherwise as a right to preserve and
improve the connection of his property with the water.
Those rights are not common to the citizens at large,
but exist as incidents to the right of soil itself
contiguous to and attingent on the water. In such
ownership they have their origin, and not out of the
ownership of the bed, and they are the same whether
the riparian owner owns the soil under the water or
not.
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Doemel, 180 Wis. at 230-31. "The riparian owner also has the
right to build piers, harbors, wharves, booms, and similar
structures, in aid of navigation, and such right is also one
which is incident to the ownership of the upland." Id. at 231;
Hicks ex rel. Askew v. Smith, 109 Wis. 532, 540, 85 N.W. 512
(1901) ("the right to erect such a pier is simply an incident of
riparian ownership"). For 140 years, title to the waterbed has
been entirely irrelevant to determining riparian ownership under
Wisconsin law. Doemel, 180 Wis. at 230. And the law presumes
that riparian owners may construct a pier in aid of navigation.
¶76 As a preliminary matter, the law presumes the
Movriches are riparian owners because they own property that
abuts the banks of the Sailor Creek Flowage, a navigable body of
water. Nevertheless, "[r]iparian rights do not necessarily
follow as a matter of course the ownership of the adjacent
land." Mayer v. Grueber, 29 Wis. 2d 168, 175, 138 N.W.2d 197
(1965) (citing Allen v. Weber, 80 Wis. 531, 536, 50 N.W. 514
(1891)). "No property owner's riparian rights are absolute."
Rock-Koshkonong Lake Dist., 350 Wis. 2d 45, ¶110. While an
owner may be riparian in nature, his ability to exercise
riparian rights may be qualified by a number of factors. Mayer,
29 Wis. 2d at 175 (citing Allen, 80 Wis. at 536). As
determinative here, these factors include the classification of
the waterbody with which the Movriches' upland property is
contiguous coupled with the private ownership of that
waterbody's bed, as well as the language in the Movriches' deed.
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¶77 The Movriches are unquestionably riparian owners
because their property lies on the banks of the flowage. The
legal description of their property extends "to the shoreline"
of the flowage. Yet, the majority holds that the Movriches are
not riparians, contrary to every definition of riparian
ownership existing in this state's pertinent precedent, dating
back to 1877. See supra ¶10. Relying on Mayer, the majority
points out that "when Movriches took title to their land, the
legal description on their deed made no reference to riparian
rights." Majority op., ¶53. The majority equates the deed's
silence on riparian rights to the nonexistence of either
riparian ownership or riparian rights. This conclusion is
patently incorrect.
¶78 It is true "that one who acquires land abutting a
stream or body of water may acquire no more than is conveyed by
his deed." Mayer, 29 Wis. 2d at 174. It is also true, however,
that an owner of waterfront property possesses certain riparian
rights under the common law and the common law provides that "a
transfer of the property without any reference whatsoever to
[riparian] rights automatically conveys and includes them."
Doemel v. Jantz, 180 Wis. 225, 230, 193 N.W. 393 (1923) (citing
Illinois Cent. R. Co. v. Illinois, 146 U.S. 387 (1892));
Stoesser v. Shore Drive P'ship, 172 Wis. 2d 660, 667, 494
N.W.2d 204 (1993) (citations omitted); Mayer, 29 Wis. 2d at 175.
The only way to eliminate riparian rights tied to the property
under the common law is "by the clear language in the deed."
Mayer, 29 Wis. 2d at 174. In other words, unless the deed
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expressly disavows riparian rights, property adjacent to
navigable water retains presumptive riparian rights,
notwithstanding the conveyance documents' silence on this issue.
¶79 The majority acknowledges the Movriches' deed does not
mention riparian rights.8 Therefore, the riparian rights
attached to the property were conveyed to the Movriches under
common law when they purchased their waterfront property. The
deed does not need to expressly mention the status of riparian
ownership because the presumption of riparian rights exists by
operation of law unless the deed expressly excludes riparian
rights.
¶80 Wisconsin qualifies a riparian owner's rights based on
the classification of the waterbody to which the riparian
property is contiguous. In the case of a natural body of water,
"one who acquires land abutting a stream or body of water may
acquire no more than is conveyed by his deed," which, as already
discussed, means that a deed that expressly severs riparian
rights will unequivocally strip the owner of those rights. Id.
at 174. In the case of an artificial body of water, as was the
case in Mayer, ownership of the waterbed may qualify the
existence of riparian rights. Id.
8
The majority suggests the possibility of a different
outcome if the "Movriches had purchased their property from
Lobermeiers." Majority op., ¶52. However, even if the
Movriches had acquired their property from the Lobermeiers, if
the deed were silent on riparian rights, as it actually is in
this case, riparian rights are nevertheless conveyed under the
common law.
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¶81 In Mayer, we held that "the purchaser of property
abutting an artificial lake acquires no rights as a riparian
owner by virtue of the land acquisition alone." Id. at 179.
Rather, "[u]nless the vendor conveys the right to use the lake,
the purchaser is precluded from either the right of access or
use." Id.
¶82 The majority's characterization of the flowage as a
"man-made" body of water similar to the property in Mayer is
incorrect.9 The flowage was an artificial condition created by a
dam, which over time became a natural condition. Regardless,
"man-made" lakes and streams are by law artificial waterbodies.
Under Wis. Stat. § 30.19(1b)(a), an artificial waterbody is "a
body of water that does not have a history of being a lake or
stream or of being part of a lake or stream." (Emphasis added.)
In Mayer, the artificial lake was "formed as the result of
gravel excavations." 29 Wis. 2d at 170. Thus, it had no
history of being a lake before seepage filled up the excavation
site and created a lake. Id. In contrast, a flowage arises
9
"The artificial condition originally created by the dam
became by lapse of time a natural condition." Haase v. Kingston
Coop. Creamery Ass'n, 212 Wis. 585, 250 N.W. 444 (1933) (citing
Johnson v. Eimerman, 140 Wis. 327, 330, 122 N.W. 775 (1909));
see also Alvin E. Evans, Riparian Rights in Artificial Lakes and
Streams, 16 Mo. L. Rev. 93, 108 n.63 (1951) (citing Minehan v.
Murphy, 149 Wis. 14, 134 N.W. 1130 (1912)).
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from the damming of a stream already in existence.10 Here, the
Sailor Creek Flowage was created and is currently maintained by
the damming of Sailor Creek, a natural, navigable stream, by the
Town of Fifield in 1941 (a fact both parties and the majority
concede). Majority op., ¶9. As the flowage has a history of
being part of Sailor Creek, it is not an artificial waterbody
and Mayer does not apply.
¶83 In a case where a dam overflowed previously dry lands
owned in fee, this court held that "the public and the riparian
owners enjoy the same rights in and upon such artificial
waters," regardless of the fact that the particular body of
water on which those rights are subsequently exercised were
artificially created by the dam. Haase v. Kingston Coop.
Creamery Ass'n., 212 Wis. 585, 587, 250 N.W 444 (1933) (emphasis
added). This concept, now discarded by the majority, was
recognized over 100 years ago in Johnson v. Eimerman, 140
Wis. 327, 330, 122 N.W. 775 (1909) ("The artificial condition
originally created by the dam became by lapse of time a natural
condition.") More recently, the "well settled" principle was
reiterated: "If the volume or expanse of navigable waters is
increased artificially, the public right to use the water is
increased correspondingly." Klingeisen v. DNR, 163 Wis. 2d 921,
10
A "flowage" is defined as "[t]he natural movement of
water from a dominant estate to a servient estate." Flowage,
Black's Law Dictionary (10th ed. 2014); see also Flowage
Easement, Black's Law Dictionary (10th ed. 2014) ("A common-law
easement that gives the dominant-estate owner the right to flood
a servient estate, as when land near a dam is flooded to
maintain the dam or to control the water level in a reservoir").
14
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927, 472 N.W.2d 603 (Ct. App. 1991). In that case, the court
also recognized that title to the waterbed underlying navigable
waters "is entirely subordinated to and consistent with the
rights of the state to secure and preserve to the people the
full enjoyment of navigability and the rights incident thereto."
Id. at 928 (citing Diana Shooting Club v. Husting, 156 Wis. 269,
271, 145 N.W. 816 (1914)).
¶84 Subject to the public trust doctrine, "Wisconsin
has . . . recognized the existence of certain common law rights
that are incidents of riparian ownership of property adjacent to
a body of water." R.W. Docks & Slips v. DNR, 244 Wis. 2d 497,
511, 628 N.W.2d 781 (2001) (citing Bleck, 114 Wis. 2d at 466).
Such rights include "the right, now conditioned by statute, to
construct a pier or similar structure in aid of navigation."
Id. (citing Cassidy v. DNR, 132 Wis. 2d 153, 159, 390 N.W.2d 81
(Ct. App. 1986). Subject to a few exceptions not relevant here,
"nothing in [Wis. Stat. ch. 30] applies to an artificial
waterbody, as defined in s. 30.19(1b)(a), that is not
hydrologically connected to a natural navigable waterway and
that does not discharge into a natural navigable waterway except
as a result of storm events." Wis. Stat. § 30.053. As the
Sailor Creek Flowage is hydrologically connected to Sailor
Creek, it is not an artificial waterbody. While Wis. Stat. ch.
30 was enacted after the creation of the flowage, "[t]he statute
did not claim to alter the common law" and "[i]t is fundamental
that a statute should be construed in harmony with the common
law . . . unless a different construction is plainly expressed."
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Klingeisen v. DNR, 163 Wis. 2d 921, 930, 472 N.W.2d 603 (Ct.
App. 1991).
¶85 In attempting to distinguish the flowage from other
natural waterbodies subject to Wis. Stat. ch. 30, the majority
mistakenly limits the holding in Doemel v. Jantz to waterbodies
that are public, navigable, and natural. Assuming that "[Lake
Winnebago] is not man-made" and that "as far as we can tell, no
portion of Lake Winnebago's waterbed is privately owned," the
majority holds that Doemel is not dispositive. Majority
op., ¶43. Setting aside the fact that Doemel is silent on the
nature of Lake Winnebago's hydrological makeup or the ownership
of Lake Winnebago's lakebed, Doemel controls the outcome here
because the flowage in this case is entirely analogous to Lake
Winnebago for the purpose of determining whether the Movriches
should be able to install a pier. Like Lake Winnebago, Sailor
Creek Flowage is navigable under the public trust doctrine and
therefore it is public. And while its existence depended upon
human intervention, it is hydrologically connected to a natural
navigable waterway (i.e., Sailor Creek) and therefore it is not
an artificial waterbody under Wis. Stat. § 30.19(1b)(a). Mayer,
therefore, does not extinguish the Movriches' common law
riparian rights.
¶86 The next question is whether the Lobermeiers' private
property rights in the waterbed trump the Movriches' riparian
rights, preventing the Movriches from maintaining a pier
anchored in the waterbed adjacent to the Movriches' shoreline
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property. The right of a riparian to maintain a pier is subject
to the following statutory limitations:
1. "A wharf or pier which interferes with public rights in
navigable waters constitutes an unlawful obstruction of
navigable waters unless the wharf or pier is authorized
under a permit issued under s. 30.12 or unless other
authorization for the wharf or pier is expressly
provided." Wis. Stat. 30.13(4)(a) (emphasis added).
2. "A wharf or pier which interferes with rights of other
riparian owners constitutes an unlawful obstruction of
navigable waters unless the wharf or pier is authorized
under a permit issued under s. 30.12 or unless other
authorization for the wharf or pier is expressly
provided." Wis. Stat. 30.13(4)(b) (emphasis added).
Notably, the right to maintain a pier is in no way statutorily
limited by the rights of non-riparian owners.11
¶87 The nature of the flowage bed's title is also
distinguishable from that of the private lakebed in Mayer, which
was entirely owned by a single owner. In Mayer, this court
recognized that in the case of an artificial waterbody, like the
artificial lake in Mayer, "the title to the land remains in the
owner and does not become vested in the state." 29 Wis. 2d at
176 (citing Haase v. Kingston Coop. Creamery Ass'n, 212
11
Wisconsin Stat. § 30.13 provides limited means by which
non-riparian owners may maintain a pier. This section mainly
considers the rights of easement holders and is not relevant
here.
17
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Wis. 585, 588, 250 N.W. 444 (1933)). Mayer's holding is limited
to "[a]n artificial lake located wholly on the property of a
single owner." Id. Here, although title to a portion of the
flowage bed remains with the Lobermeiers, their title is
qualified because of the presence of navigable water over the
bed.
¶88 This principle arises from Minehan v. Murphy, 149
Wis. 14, 134 N.W. 1130 (1912), where the plaintiff brought an
action for ejectment when the defendant adversely occupied the
bed of an artificially enhanced stream by crossing over from his
side of the stream's thread and onto the plaintiff's submerged
property.12 The stream in question had previously been non-
navigable, but upon damming of the mouth and flooding of the
privately-owned former uplands the stream was rendered
navigable, such that "the former private title had become
changed to the same character of qualified title as that of
riparian proprietors to the beds of navigable rivers in
general." Id. at 16 (emphasis added). Likewise, damming a
stream and creating a flowage, which in character and shape may
resemble a lake, does not transfer ownership of the bed to be
held in trust to the state. Rather, like that of a streambed,
the title of the flowage bed is privately-held, but qualified by
the presence of navigable waters. See e.g., Ne-Pee-Nauk Club v.
Wilson, 96 Wis. 290, 295, 71 N.W. 661 (1897); Rock-Koshkonong
Lake Dist., 350 Wis. 2d 45, ¶78.
12
The court does not elucidate the exact details of the
defendant's impermissible occupancy.
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¶89 The plaintiff's action for ejectment was ultimately
successful in Minehan, based in part upon her status as a
riparian whose title to the bed of the navigable water bounding
the banks of her land was "incidental to her title to the bank."
Minehan, 149 Wis. at 14. The court's articulation of the rule
that title to private property submerged by navigable waters
becomes qualified in the same sense as the qualified title of
riparians to the beds of navigable waters, is particularly
instructive here. Private title enjoys no heightened status
vis-à-vis riparian title; rather, "the former private title had
become changed to the same character of qualified title as that
of riparian proprietors to the beds of navigable rivers in
general." Id. at 16. Unlike the riparian plaintiff in Minehan,
who not only owned the waterbed, but also had title to the
upland property along the banks, the Lobermeiers merely own the
flowage bed. The crux of the issue is whether the Lobermeiers
may exclude the Movriches from erecting and maintaining a pier
by virtue of owning only a portion of the flowage bed.
¶90 Because the Lobermeiers do not own property on the
bank of a waterbody, they are not riparian owners. And while
they retain ownership of a portion of the flowage bed in fee
simple, that title is qualified by the presence of navigable
waters. The majority wholly relies upon the Lobermeiers'
ownership of the flowage bed in fee simple absolute to reach its
conclusion that the Movriches are not entitled to erect and
maintain a pier. Majority op., ¶¶17-21, 32 n.9. The majority
cites a string of cases that do not contemplate the presence of
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navigable water over the land. Id. No authority in Wisconsin
or in any other jurisdiction has adopted the majority's
reasoning or otherwise restricted placement of a pier on
navigable waters by a riparian owner in favor of non-riparian,
fee simple ownership of the waterbed. The presence of navigable
waters qualifies the Lobermeiers' title to the flowage bed
subject to the public trust doctrine and the rights of riparian
owners along the banks of the flowage. As riparian owners, the
Movriches are entitled to exercise riparian rights to access the
surface waters and to have their pier rest on the flowage bed.
¶91 Over one hundred years ago, this court expounded the
"well settled" principle that "if the volume or expanse of
navigable waters be increased artificially, the public right is
correspondingly increased." Village of Pewaukee v. Savoy, 103
Wis. 271, 277, 79 N.W. 436 (1899). Specifically, the court in
Savoy expanded the state's ownership rights in natural waterbeds
to artificially submerged lands maintained for more than 20
years at an artificially high water level, concluding that "an
artificial condition, by lapse of time . . . becomes the natural
condition." Id. at 275. Three decades later, the court
determined it was unnecessary to vest title to the artificially
submerged land in the state in order to protect the public's
rights under the public trust doctrine. Haase, 212 Wis. at 587.
Nevertheless, the court in Haase reiterated the rule of law the
majority should have applied here: "It is true that, where the
waters of a natural, navigable lake are artificially raised, the
20
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public and the riparian owners enjoy the same rights in and upon
such artificial waters." Id.
¶92 The Sailor Creek Flowage was created 76 years ago and
has been maintained for more than 50 years beyond the 20-year
timeframe deemed sufficient to qualify the fee simple rights
enjoyed by the owners of the underlying lakebed. The flowage,
created artificially by construction of a dam, submerged
privately owned land with the permission of the owner. Over
time, during the three quarters of a century this land has
remained submerged, both riparian rights as well as public trust
rights extended to this artificial expansion of Sailor Creek.
While the creation of the flowage did not transfer any property
rights from the Lobermeiers to either the state or the
Movriches, it subordinated the Lobermeiers' property rights to
riparian rights under the common law as well as public rights
under the public trust doctrine. While this reconciliation of
three distinct rights perhaps leaves the Lobermeiers with
property of limited value, this construction of the law takes
nothing from the Lobermeiers and preserves what has always been,
as reflected in the $400 assessed value of the flowage bed owned
by the Lobermeiers. In contrast, the majority strips the
Movriches of their riparian rights and reallocates them to the
Lobermeiers.
¶93 Unfortunately, the majority's opinion diminishes not
only the value of the Movriches' property, but also potentially
guts the values of all properties abutting flowages throughout
Wisconsin. The breadth of the majority's opinion calls into
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question the terms of deeds to such waterfront properties, the
validity of prior conveyances, and the extent of ownership
interests. The majority's transfiguration of the common law
governing riparian rights disturbs the reliance on access that
induced purchases of waterfront property in Wisconsin for over a
century.
II
¶94 By eschewing decades of controlling precedent in
order to elevate fee simple property rights in a waterbed,
unattached to shoreline property ownership, the court
effectively extinguishes the property rights of thousands of
waterfront property owners along flowages, while jeopardizing
the property rights of waterfront property owners on all bodies
of water in Wisconsin. A change in the law of this magnitude
should come from the legislature, not this court. Accordingly,
I respectfully dissent from that part of the majority opinion
that effectuates such a redistribution of property rights with
no compensation to those left with substantially diminished
property values and concur only in that part of the majority
opinion that preserves the public's right to access the flowage
waters.
¶95 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
¶96 I am also authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this opinion except for Part II.
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1