905 N.W.2d 807
Wis.2018Background
- Sailor Creek Flowage is a 201-acre navigable flowage created by a 1941 dam; the Town obtained a 1941 deed of flowage rights that submerged private land.
- David and Diane Lobermeier own fee title to a portion of the Flowage waterbed that abuts Jerome and Gail Movrich’s shoreline lot (Movriches’ deed describes the lot as running "to the shoreline").
- Movriches sought a declaratory judgment allowing them to install and maintain a pier extending from their shore over the Flowage and to access the Flowage directly from their lot; Lobermeiers opposed and sought to exclude pier placement on their submerged land.
- The circuit court declared Movriches had the right to erect a pier over the Lobermeier bed and to access the Flowage from their property; the court of appeals affirmed in part.
- The Wisconsin Supreme Court granted review to resolve the interplay among fee ownership of submerged land, riparian rights of abutting upland owners, and the public trust doctrine.
Issues
| Issue | Plaintiff's Argument (Movrich) | Defendant's Argument (Lobermeier) | Held |
|---|---|---|---|
| 1. Do Movriches hold riparian rights (including right to build a pier) by virtue of owning to the shoreline of the Flowage? | Shoreline ownership carries riparian rights to build piers and other appurtenant uses. | Fee ownership of the submerged bed severs riparian incidents; riparian rights do not overcome fee owner's exclusion. | Movriches are not entitled to riparian rights to place a pier on/over the portion of the waterbed privately owned by Lobermeiers. |
| 2. Does the public trust doctrine create a private right to construct a pier on privately owned flowage bed? | Public trust and navigability permit public and abutting owners to place structures needed for access. | Public trust grants public use but does not create private property rights on another’s submerged land. | Public trust conveys public use rights but does not create a private right to place a pier on another’s submerged fee land. |
| 3. May Movriches access and exit the Flowage directly from their shoreline lot for recreational/public-trust purposes? | As members of the public and abutting owners, they may enter/exit from their shore for trust-consistent purposes. | Access should be limited to public access points because bed title belongs to Lobermeiers. | Yes: Movriches may access and exit the Flowage from their shoreline property for purposes consistent with the public trust (swimming, boating, fishing). |
| 4. Overall balancing—how do private fee rights, riparian rights, and the public trust interact here? | Navigable flowage and long-standing recreational use qualify/limit fee ownership; riparian and public rights should prevail for pier placement. | Fee simple rights are fundamental and may be enforced unless a clear easement or permit permits otherwise. | Fee ownership remains enforceable against private pier placement; public trust grants use but not a private right to occupy another’s submerged bed. |
Key Cases Cited
- Mayer v. Grueber, 29 Wis. 2d 168 (Wis. 1965) (riparian rights vary by nature of waterbody; owner of an artificial lake wholly on one owner’s land may not confer riparian rights to adjacent purchasers absent conveyance)
- Muench v. Public Serv. Comm'n, 261 Wis. 492 (Wis. 1952) (state holds beds of navigable waters in trust; public rights subject private title)
- Doemel v. Jantz, 180 Wis. 225 (Wis. 1923) (riparian ownership confers rights to build piers incident to upland ownership)
- R.W. Docks & Slips v. DNR, 244 Wis. 2d 497 (Wis. 2001) (riparian rights are private property rights but subordinate to public trust)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (U.S. 1982) (the right to exclude is a core strand of property ownership)
- Minehan v. Murphy, 149 Wis. 14 (Wis. 1912) (navigabilization of previously nonnavigable water can qualify former private title to the bed)
- Haase v. Kingston Cooperative Creamery Ass'n, 212 Wis. 585 (Wis. 1933) (artificially raised waters may lead to public and riparian rights over time)
- Rock-Koshkonong Lake Dist. v. DNR, 350 Wis. 2d 45 (Wis. 2013) (public trust protects recreational uses and limits riparian rights)
- Jacque v. Steenberg Homes, 209 Wis. 2d 605 (Wis. 1997) (trespass is actionable and property owner’s right to exclude is strongly protected)