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  • WisBar News
    January
    30
    2018

    Supreme Court Says Pier Prohibited on Flowage Waters Over Private Submerged Land

    Joe Forward

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    Waterfront

    Jan. 30, 2018 – In a property dispute between brother and sister, the Wisconsin Supreme Court has ruled (4-3) that the public trust doctrine does not allow the sister to erect and maintain a pier on flowage waters over submerged land the brother owns.

    Under the public trust doctrine, the state holds navigable waters in trust for the public to freely navigate and use for recreational purposes. The doctrine applies to navigable flowages created by dams. In this case, a dam created the flowage area at issue.

    The appeals court previously ruled that Jerome and Gail Movrich could maintain the pier over her brother’s submerged land as a “natural extension of the navigational and recreational activities the public is entitled to pursue under the public trust doctrine.”

    But David and Diane Lobermeier (Lobermeier) challenged the conclusion that Movrich could maintain a pier over submerged land Lobermeier owned in fee simple.

    In Movrich v. Lobermeier, 2018 WI 9 (Jan. 23, 2018), a majority (4-3) reversed the appeals court on this point, concluding that Movrich could not erect or maintain the pier.

    “In a flowage easement such is at issue here, title to the property under the flowage may remain with the owner,” wrote Chief Justice Patience Roggensack, noting that the public trust doctrine does not extend to a allow a pier over submerged private land.

    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.

    In other words, the majority said the public trust doctrine modifies Lobermeier’s property rights to the extent that the public may use the flowage waters for recreational purposes but “no private property right to construct a pier arises from the public trust doctrine.”

    However, the court unanimously concluded that the Movriches may directly access the flowage water from their abutting property, affirming the appeals court on this point.

    Lobermeier argued that Movrich needed permission to access the water from their abutting land and without it, Movrich was required to find a public access point.

    “On this issue, we conclude that as long as the 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 from their shoreline property,” the chief justice wrote.

    The ruling distinguished 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.”

    “[A]ny property rights the Movriches may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with the Lobermeiers’ property rights or the flowage easement’s creation of a navigable body of water,” Roggensack wrote.

    Concurrence/Dissent

    Justice Rebecca Bradley, joined by Justices Shirley Abrahamson and Ann Walsh Bradley, concurred in part and dissented in part through a separate writing.

    Like the majority, Justice R. Bradley agreed that the Movriches had access and exit rights from their own waterfront property and Lobermeier could not prohibit access.

    But contrary to the majority, Justice R. Bradley’s dissent concluded that Movrich had a right to erect and maintain the pier. “Riparian rights in Wisconsin are sacred,” she wrote.

    “The majority opinion sweeps away these cherished and longstanding property rights for those with cottages or homes on Wisconsin’s waters called flowages.”

    R. Bradley said the presence of a navigable waterway for more than 75 years “alters the 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.”

    “The majority adopts an unprecedented holding that a fee simple interest in land submerged by water cancels riparian rights presumptively recognized by the common law for at least 140 years,” Justice R. Bradley wrote.

    R. Bradley said the consequences will be far-reaching: “[W]hat 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.”

    Finally, in a second part to Justice R. Bradley’s separate writing that Justice Abrahamson did not join (but Justice A.W. Bradley did), she dissented “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.”