Environmental Law Section Blog: ‘Flowing’ Water Rights: The Wisconsin Supreme Court’s decision in Movrich v. Lobermeier:

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  • Environmental Law Section Blog
    May
    14
    2018

    ‘Flowing’ Water Rights: The Wisconsin Supreme Court’s decision in Movrich v. Lobermeier

    Gabe Johnson-Karp

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    The Wisconsin Supreme Court recently issued a decision involving property owners with competing water-related private rights. The decision, says Gabe Johnson-Karp, has the potential to affect the property rights of thousands of property owners along Wisconsin’s flowages.

    In January 2018, the Wisconsin Supreme Court issued its decision in Movrich v. Lobermeier, holding that owners of a property abutting a “flowage” did not have a right to place a pier from their property into the navigable waterway.

    In doing so, the court relied on the fact that the water underlying the flowage was owned by another private party, and that the “artificial” nature of the waterbody meant that the shoreline-abutting property owners did not hold such traditional “riparian” rights as the ability to place a pier.

    Gabe Johnson-Karp com gabe.johnsonkarp gmail Gabe Johnson-Karp, Marquette 2011, is an assistant attorney general with the Wisconsin Department of Justice, where he represents state agencies and officials in trial and appellate matters.

    All statements in this post are the author’s alone, and do not represent the views of the Department of Justice, the attorney general, or any other individual or entity.

    The decision has the potential to impact the rights of both “riparian” owners along flowages, as well as those owners who hold title to the lands underlying those waterways.

    Before turning to the court’s holding and the issues it raises, a few definitions are in order.

    Flowage and ‘Natural’ versus ‘Artificial’

    First, what is a flowage? A flowage generally refers to an area that is “flowed,” or flooded, by the damming of a waterway.1

    The flowage at issue in this case is the Sailor Creek Flowage, which was formed by damming Sailor Creek (a navigable waterway) in 1941.2 For current purposes, then, the flowage at issue is a 201-acre, historically lake-like body of water behind a dam.

    As will be discussed below, the character of the waterbody as “natural” versus “artificial” was highly relevant here, and could be an issue in future cases.

    Riparian Rights

    Second, what are “riparian rights”? Traditionally, these have been the bundle of rights that pertain to properties abutting most waterways.

    They 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, … ” and the right, now conditioned by statute, to construct a pier or similar structure in aid of navigation.3

    In Wisconsin, owners of property along navigable waterways typically have been presumed to hold such riparian rights by virtue of owning the land abutting the water, without regard to the ownership of the land underlying the water.4

    A central issue in the Movrich case was whether a parcel of land immediately adjacent to the flowage was a “riparian” parcel, such that the owners could enjoy the traditional riparian right of placing a pier into the water off their property.

    The Dispute

    The dispute in the Movrich case arose between two related families of owners, each of which owned property on the Sailor Creek Flowage.5

    One family, the Lobermeiers, held title to certain submerged land underlying the flowage. The other family, the Movriches, owned the upland property immediately adjacent to the Lobermeier’s submerged land.6

    After a falling out, the two families disputed whether the Movriches could place a pier from their shoreline on top of the Lobermeier’s submerged land; indeed, the families even disputed whether the Movriches could access the water at all from their property, or whether they were instead required to use the flowage’s public access point to enter the water.

    The Court’s Holdings

    In grappling with these questions, the court drew on principles from three interconnected areas of law: “basic property rights, riparian rights, and the public trust doctrine.”7 After discussing background principles in each of these areas, the court’s holdings proceeded in three parts.

    First, the court examined the private property interests of the two sets of owners, concluding that the Lobermeiers’ “fee simple” interest in their submerged land included the “basic right to exclude.”8 In light of this determination, the court stated that “unless riparian rights or the public trust doctrine modify those rights, Movriches may not interfere with the property rights of Lobermeiers.”9

    Second, the court held that although the Movriches’ property abuts the flowage – as would typically entitle them to riparian rights – they are not entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water.”10 Rather, the court concluded that the artificial nature of the flowage was of a different kind from “naturally occurring” lakes or streams.11 This distinction, combined with the lack of any showing that the Movriches’ deed included riparian rights, supported the court’s conclusion that the Lobermeiers’ right to “prevent Movriches from installing a pier onto or over Lobermeiers’ property without their permission.”12

    Finally, the court held that despite the limits on the Movriches’ private right to place a pier, they nonetheless retained all of the rights that any member of the public could exercise by virtue of the flowage being a navigable waterway subject to the public trust doctrine.13

    Thus, like every member of the public, the Movriches may stand on the Lobermeiers’ submerged property, and may swim, fish, and boat over that property.14 Perhaps most important for the Movriches, the court concluded that “as members of the public, [they] are entitled to access and exit from the Flowage by way of their own shoreline property,” rather than having to use the flowage’s public access point.”15

    Concurrence and Dissent

    Three justices concurred in part and dissented in part.

    While agreeing that the Movriches are entitled to access the flowage from their property, the dissenters concluded that the court’s opinion “diminishes not only the value of the Movriches’ property, but also potentially guts the values of all properties abutting flowages throughout Wisconsin.”16

    The dissent also disagreed with the court’s conclusion that the flowage is an “artificial” waterbody, instead concluding that the flowage’s longstanding history, combined with its natural source of Sailor Creek, supported the conclusion that the flowage should be treated like other natural, navigable waters for purposes of ascertaining riparian rights.17

    The dissent concluded that the court’s decision has the potential to “call[ ] into question the terms of deeds to such waterfront properties, the validity of prior conveyances, and the extent of ownership interests” along all of Wisconsin’s flowages.18

    Potential Impacts for Years to Come

    Given the court’s holding regarding riparian rights along flowages, the decision has the potential to impact conveyances of property along flowages – and any ensuing litigation – for years to come. Three issues from the Movrich decision may be worth considering in future cases.

    Showing a Body of Water as ‘Artificial’
    First, as noted previously, throughout its decision, the court referred to the flowage as a “man-made” or “artificial” waterbody.19 Putting aside whether this characterization of the Sailor Creek Flowage is correct,20 one point to consider in future cases will be whether there is evidence that would support a showing that the waterbody is either “artificial” or “natural” in character, depending on their client’s property interest at issue.

    For landowners whose property abuts the flowage and who seek to assert a right to, for example, place a pier, counsel might consider distinguishing the “artificial” waterbody at issue here, to demonstrate that their clients’ rights are akin to traditional riparian rights along “natural” waterbodies. And for those whose clients wish to assert property rights in the submerged property, counsel might conversely seek to show that the waterbody at issue is analogous to the flowage held to be an “artificial” waterbody in Movrich.

    A Right to Exclude?
    Second, the court’s treatment of the Lobermeier’s “right to exclude” the Movriches’ pier leaves room for evidence or argument in a future case regarding whether the flowage easement at issue there might further curtail the “bundle of rights” pertinent to the submerged land.

    In Movrich, the court highlighted the Lobermeiers’ right to exclude, but did not explain how that right was affected by the flowage easement that burdened their submerged property. That easement provided that the easement holder (the municipality that maintained the dam) was given “‘the perpetual right, privilege and easement to submerge, flood and/or raise the ground water elevation of such portion of the grantor’s real estate hereinafter described as may be overflowed or affected by raising such water level, directly or indirectly, through the maintenance and operation of said dam.’”21

    Thus, by nature of the flowage easement, the Lobermeiers did not in fact have an absolute right to exclude. Indeed, the court explicitly stated that the submerged property is “indisputably subject to the public trust doctrine,” and that the public, as well as the Movriches, may therefore use the property “for purposes consistent with the public trust doctrine.”22 Thus, as long as either the public or the Movriches “keep their feet wet” while engaging in traditional water-based activities, the court’s decision recognized their right to encroach on the Lobermeiers’ submerged property.

    In future cases, then, counsel might consider what rights or interests the flowage easement actually conveyed and, conversely, what rights and interests the owners of the submerged lands actually retained.

    Whereas in Movrich, the parties and the court approached the question with a presumption that the Lobermeiers’ “right to exclude” continued unaltered by the easement, the terms of easements in future cases might afford more room for argument that the owners of submerged lands would not retain such right.

    A Reference to Riparian Rights?
    Third, and relatedly, the nature of the conveyance of the “upland” property will very likely affect the outcome in future cases.

    In Movrich, the court emphasized that when “[t]he Movriches took title to their land, the legal description on their deed made no reference to riparian rights.”23 Similarly, the court noted that the Movriches’ expectations of maintaining a pier were irrelevant as to the Lobermeiers, since “they did not purchase their lot from Lobermeiers.”24

    This consideration will likely be relevant not only in future litigation, but (perhaps even more so) in drafting or reviewing conveyances for properties along flowages.

    These Issues Likely to Arise Again

    The Movrich case illustrates how different types of private property rights can interact on navigable waters, both between themselves and in relation to public rights in the waters.

    In light of Wisconsin’s abundance of waterbodies and riparian properties, the issues presented in Movrich are likely to arise again, and attorneys handling water-related matters will therefore do well to familiarize themselves with the decision.

    Endnotes

    1 See "Easement," Black’s Law Dictionary (10th ed. 2014) (defining “flowage easement” as 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”); see also "Flowage," Black’s Law Dictionary (10th ed. 2014) (“The natural movement of water from a dominant estate to a servient estate.”).

    2 See Movrich v. Lobermeier, 2018 WI 9, ¶ 9, 379 Wis. 2d 269, 905 N.W.2d 807.

    3 See R.W. Docks & Slips v. DNR, 2001 WI 73, ¶ 21, 244 Wis. 2d 497, 628 N.W.2d 781.

    4 See, e.g., Doemel v. Jantz, 180 Wis. 225, 230, 193 N.W. 393 (1923) (noting that riparian rights “are not dependent upon the ownership of the soil under the water, but upon his title to the banks”); see also Movrich, 379 Wis. 2d 269, ¶¶ 78, 82 (R. Bradley, J., concurring in part, dissenting in part).

    5 David Lobermeier and Gail Movrich are brother and sister. See Movrich v. Lobermeier, 2018 WI 9, ¶ 10, 379 Wis. 2d 269, 905 N.W.2d 807.

    6 As noted previously, one of the disputed issues in the case was whether the Movriches were “riparian” owners, or whether the nature of the waterbody and the competing property rights at issue altered their status as riparian owners. Consistent with the court’s ultimate holding on this point, I refer to their property as “upland” rather than “riparian.”

    7 Movrich v. Lobermeier, 2018 WI 9, ¶ 16, 379 Wis. 2d 269, 905 N.W.2d 807.

    8 Id. ¶33.

    9 Id.

    10 Id. ¶ 3 (emphasis added); see also id. ¶ 55.

    11 See id. ¶¶ 43–50.

    12 Id. ¶ 55.

    13 See ¶¶ 56–57.

    14 See id. ¶ 56.

    15 Id. ¶¶ 56–57, 61.

    16 Id. ¶ 93 (R. Bradley, J., concurring in part, dissenting in part); see generally id. ¶¶ 64–94.

    17 See id. ¶¶ 82–85.

    18 Id. ¶ 93.

    19 See, e.g., ¶¶ 3, 9, 58.

    20 As noted, the dissent stated plainly that it believed the court was “incorrect” in labeling the flowage “man-made.” Movrich, 379 Wis. 2d 269, ¶¶ 82 (R. Bradley, J., dissenting in part). Indeed, as the court described it, the Sailor Creek Flowage was created by damming a natural, navigable stream, Movrich, 379 Wis. 2d 269, ¶¶ 9, 36, and “a natural stream does not become an artificial body of water . . . by damming the stream to create a flowage,” Paul Kent, Wisconsin Water Law in the 21st Century: Understanding Water Rights and Regulations 7 (2013). It remains to be seen whether the court’s treatment of the flowage as a “man-made” or “artificial” waterbody will apply to all flowages, or whether there might be some showing that could establish the “natural” character of another flowage.

    21 Movrich v. Lobermeier, 2016 WI App 90, ¶ 4, 372 Wis. 2d 724, 889 N.W.2d 454, aff’d in part, rev’d in part, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807. The court of appeals’ opinion included a more complete statement of the terms of the easement than did the supreme court’s opinion.

    22 Movrich, 379 Wis. 2d 269, ¶ 56.

    23 Id. ¶ 54.

    24 Id.





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