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  • WisBar News
    December 06, 2016

    Public Trust Doctrine Applies to Flowage Waters Over Partially Private Land

    Joe Forward

    Waterfront

    Dec. 6, 2016 – A state appeals court has ruled that, under the public trust doctrine, a waterfront property owner can install a dock on flowage waters even though another property owner claims title to the submerged land over which the water flows.

    David Lobermeier owns submerged land beneath flowage waters known as the Sailor Creek Flowage in Fifield. At one point, the flowage was just a creek. But in the 1940s, the city retained rights to overflow the area with a dam, resulting in the flowage area.

    The original private property was sold off in parcels over time. Lobermeier’s sister, Gail Movrich, bought waterfront property in the Sailor Creek Flowage Subdivision. Some of the waterfront parcels abutted the submerged property partially owned by Lobermeier.

    For years, the Movrich family made use of the flowage waters extending from their upland waterfront property. They installed a dock and engaged in recreational activities, such as swimming, fishing, and kayaking. Lobermeier also moored his boat there.

    At some point, though, the Movrich and Lobermeier families had a falling out. Lobermeier began to assert that he owned the flowage waterbed and demanded that Movrich and other upland waterfront property owners remove their docks.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Movrich sought a declaration of their riparian rights incident to their waterfront property ownership, and also asked for an injunction to prevent Lobermeier from interfering with their property rights.  The case was consolidated to include other property owners affected by Lobermeier’s claims, and the trial court ruled against Lobermeier.

    The Price County Circuit Court ruled that the “public trust doctrine” allowed Movrich to access the flowage waters and install a pier. An appeals court recently affirmed.

    In Movrich v. Lobermeier, 2015AP583 (Nov. 29, 2016), a three-judge panel for the District III Appeals Court concluded that the public trust doctrine permits Movrich to access the flowage and install a pier despite Lobermeier’s waterbed ownership.

    The Public Trust Doctrine

    Under the Wisconsin Constitution, the state holds navigable waters in trust for the public to freely navigate and use for recreational purposes. The panel explained that the public trust doctrine “applies to flowages created by dams placed on navigable streams.”

    The panel also explained that the public trust doctrine vests control of lake beds, land under navigable waters, in the state. But riparian owners – those owning property that abuts a body of water, have various riparian rights to access the abutting waters.

    The panel distinguished cases involving privately owned lakes in their entirety, noting that Lobermeier owned only a small portion of the flowage waterbed.

    “To conclude that the Movriches cannot access the Flowage from their waterfront property would prevent members of the public – specifically, the Movriches – from fully enjoying the rights the public trust doctrine grants, such as navigation, recreation, boating, fishing, swimming, etc., particularly given that their property abuts the Flowage’s public and navigable waters,” wrote Judge Patricia Curley.

    Judge Curley also noted that the public trust doctrine allows the public, here the Movriches, to erect and maintain docks as a “natural extension of the navigational and recreational activities the public is entitled to pursue under the public trust doctrine.”



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