Riparian rights are special privileges associated with the ownership of shoreland real estate, which the owner is entitled to exercise in the water and on the bed of the abutting waterbody. Such rights fall into three broad categories: the right to use the water, the right to protect and maintain ownership of land up to the edge of the water, and the right to construct structures that aid access to navigable depths. Riparian rights are distinct from the rights in navigable waters enjoyed by the public under Wisconsin’s public trust doctrine.1 For example, although a structure placed on the bed of a lake might be considered an aid to public navigation, only a riparian owner has the right to place such a structure. Riparian rights “are incident to riparian ownership, and existing with it, and passing with the transfer of land.”2
Categories of Riparian Owners’ Rights
A riparian owner has the exclusive right to make reasonable use of the water adjacent to or passing by the owner’s land. This includes use of the water for “domestic, agricultural and recreational purposes” and water flow to the land without artificial obstruction.3 Early Wisconsin case law is replete with disputes over the use of the state’s waters, consistent with the wealth of rivers and lakes and their importance to commercial and economic development, as highways for the transport of raw materials such as timber, and as sources of hydropower.
In the second category, the right to protect riparian land includes the right to build seawalls, place riprap, and otherwise protect the shoreland or riverbank against the forces of erosion.4 A riparian owner is also deemed to own a proportional share of new land formed by the accumulation of sediments or other material beyond the original shoreline (“accretion”) or by natural or artificial lowering of the waterbody (“reliction”).5 These rights ensure the owner’s continued right of access for navigation without intervening title claims by a third party. Wisconsin law also protects a riparian owner’s exclusive right to use and to exclude others from accessing dry land between the ordinary-high-water mark (OHWM) and the waterline.6
Riparian owners also possess the right to construct and maintain piers and wharves to access navigable water depths for commercial or recreational purposes. A riparian owner is entitled to the use of an area of the close-to-shore “riparian zone” for this purpose, exclusive of neighboring riparian owners. Increasing development pressure on rivers and lakes has shifted the focus of riparian rights disputes in recent decades to competing claims over the placement of piers, wharves, and marinas for recreational use.
Limits on Riparian Rights
Unlike other interests in property, riparian rights are not absolute. They exist in tension with the rights of the public in navigable waters under Wisconsin’s public trust doctrine. Riparian rights are held to be “qualified, subordinate and subject to the paramount interest of the state and the paramount rights of the public in navigable waters.”7 The public trust doctrine dictates that a riparian owner must act reasonably in relation to the rights of the public. A riparian owner must not, for example, construct a pier that has the effect of fencing out the public from an area of navigable water. Acting as trustee under the public trust doctrine, the Wisconsin Legislature has sought to balance the rights of riparian owners against those of the public by codifying certain structures and activities in navigable water that are deemed per se reasonable (as in the case of general permits and continuing to allow piers of a certain size, configuration, and vintage) or that are subject to case-by-case review by delegation of authority to the Wisconsin Department of Natural Resources (DNR) to issue individual permits.
Wisconsin law recognizes that the rule of reason in the exercise of riparian rights applies against not only the rights of the public but also the rights of adjacent riparian owners. Disputes often arise concerning the division of the respective zones in which neighboring property owners have exclusive riparian rights. Riparian rights are thus subject to concepts of reasonable use and proportionality, where the extent of the owner’s abutting shoreland footage is a primary consideration.8
Under the common law, riparian rights were considered freely alienable and could be separated from ownership of the abutting uplands. In 1993, the statutes were amended in derogation of the common law to prohibit the conveyance of riparian rights to non-riparian property owners by easement or “similar conveyance,” including by lease for a term of more than two years.9 Up to that point, the proliferation of access easements held by non-riparian owners led to increasing pressure for more and larger piers and accompanying disputes concerning their placement. Recognizing that vested rights had accrued under the common law, the legislature made an exception for piers regularly placed under written access easements before the change in law,10 thus ensuring that disputes about pier placement will continue to arise.
The Geography of Riparian Rights
The Wisconsin Statutes define the riparian zone to mean the area that extends from riparian land into water to the line of navigation.11 The landward boundary of the riparian zone is the OHWM, which is defined as “the point on the bank or shore up to which the presence and action of water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic.”12 The line of navigation is the boundary of the riparian zone in the water because the riparian right to construct piers and wharves only extends to the point such structures are necessary in aid of navigation.13 The line of navigation was statutorily defined (only as recently as 2015) to mean the depth of a navigable water that is the greater of three feet, as measured at summer low levels, or the depth required to operate a boat on the navigable water. Under the common law, however, the line of navigation was determined by reference to the type of watercraft customarily used on a particular waterbody. Thus, for example, the line of navigation in Lake Superior was deemed in one early case to extend to the 16-foot water depth.14
Common Disputes Regarding Riparian Zones
Between the OHWM and the line of navigation, questions often arise concerning the boundaries of the riparian zones as between adjacent owners. An unreasonable interference by one riparian owner in another’s exclusive riparian zone can subject the former to liability for nuisance.
Each riparian owner’s zone of exclusive use is measured by the shoreline, the extended property boundary lines, and the line of navigation.15 The common-law methods by which rights in the riparian zone are apportioned between adjacent shoreland owners were summarized in Nosek v. Stryker, a 1981 Wisconsin Court of Appeals case. That case presented a classic dispute between two riparian owners: Owner A alleged owner B’s pier encroached into owner A’s riparian zone, creating a private nuisance, and vice versa. The court reaffirmed that there is no set rule in Wisconsin for establishing riparian zone boundaries between contiguous owners, and that “[e]xclusive use of the apportioned riparian tract only extends so far as to reach the line of navigability.”16
Apportionment Methods. Equitable apportionment of the riparian zone ordinarily follows from the shape of the abutting shoreline and orientation of the adjacent riparian owners’ side lot lines with respect to the shore. For relatively straight shorelines where the parcel boundaries meet the shore at right angles, the method of apportionment is simply to extend the parcel boundaries out into the waterbody. Where the side lot lines are not generally perpendicular to the shore, those lines should be extended into the water at a right angle to the shoreline.
A second method, known as the “coterminous” or “Knitter” method, is used for irregular shorelines, where simply extending the lines at a right angle would not result in an equitable apportionment. This method involves drawing a line between the two points where the side boundaries of a lot meet the shoreline. Lines or “chords” mapped in this way for two adjacent lots form an angle. That angle is then bisected by a line that becomes the riparian zone boundary.
A third method allocates a proportional share of the line of navigation to each owner in relation to the extent of the owner’s shoreline frontage.
The above-described methods of apportionment give the illusion of mathematical certainty, but in many situations the characteristics of the waterbody and preexisting development do not allow such neat divisions. Structures in the water, the shape of the shoreline, sandbars, rocks, and other obstructions that alter the line of navigation can make it difficult to map lines that are equitable in practice. As such, the common law recognizes and Wisconsin law codifies the principle “that each [riparian owner] must have [his or her] due proportion of the line bounding navigability and a course of access to it from the shore exclusive of every other owner, and that all rules for apportionment or division are subject to such modification as may be necessary to accomplish … this result.”17
The Developing Law of Riparian Rights on Flowages
Case Law. Under Wisconsin common law, an owner of land abutting a navigable waterway is presumptively entitled to exercise riparian rights, including the right to place a pier.18 However, no such presumption arises in the case of “artificial” waterbodies. Rather, the grantor’s intent, as expressed in the language of the deed, is deemed to control. Thus, in Mayer v. Grueber, the court held that when a property owner created a seepage lake from an excavated quarry entirely on his own property, no presumption arose that he had conveyed the riparian right of access to the grantee of a tract along the edge of the newly made lake; rather the language of the deed (which described the boundary of the land as the “low water mark”) controlled.19
For navigable rivers and streams, title in the bed to the thread or center of stream is presumed to be vested in the owners of the streambank on either side.20 When a stream is impounded and previously dry land becomes submerged by flowage waters, title to the bed does not become vested in the public (as it does for natural lakes). Flowage lakes, created by raising dams on previously free-flowing rivers or creeks, are common throughout Wisconsin. They include Lake Koshkonong, Lake Wisconsin, and popular recreational destinations such as the Minocqua and Eagle River chains of lakes. The expanded water boundary created by the impoundment creates new riparian lands and with them the potential that shoreland owners will seek to exercise their riparian rights not on public lakebed but on submerged land owned by a private party.
Conflicting rights between the owner of the submerged lakebed and the abutting riparian owner were adjudicated in a 2018 case, Movrich v. Lobermeier,21 involving a dispute over the riparian owner’s ability to place a pier anchored on land but extending into the Sailor Creek flowage, a 201-acre impoundment in Price County. Over time, ownership of the submerged bed and the adjacent shoreland was split, and riparian lots were developed and sold, to Movrich among others. Lobermeier, the fee owner of the submerged bed of the flowage, refused to allow Movrich to place a pier. The dispute eventually made its way to the Wisconsin Supreme Court. Equating the Sailor Creek flowage with the gravel quarry lake in Mayer, the court declared that there was no presumption that Movrich had acquired any riparian rights upon the purchase of the shoreland. In the absence of language in Movrich’s deed affirmatively granting such rights, the court held that Lobermeier’s right as fee title owner to exclude anything on or above his land was dispositive.
The dissent objected to the Movrich court’s categorization of the flowage as a type of “artificial lake” and distinguished it from the quarry lake in Mayer because a navigable waterway in the form of Sailor Creek existed before the flowage.22 Earlier case law had recognized that the artificial condition of a lake created by a dam can become the natural condition.23 The dissent reasoned that Lobermeier’s fee title to the submerged bed had become qualified and subject to the rights of the public and abutting riparian owners based on the presence of water over a long period of time.24 Moreover, the majority in Movrich appeared to hold that unless a deed affirmatively granted riparian rights, no such rights were conveyed. Previewing the legislative relief that eventually followed, the dissent observed that “the court effectively extinguishes the property rights of thousands of waterfront property owners along flowages…. A change in the law of this magnitude should come from the legislature, not this court.”25
Legislative Response to Movrich. The legislature, in 2021 Wis. Act 47, created Wis. Stat. section 30.132, which establishes a presumption that an owner of land abutting a navigable waterway is entitled to exercise all rights afforded to a riparian owner. Act 47 also established real estate disclosure requirements for the sale of lands abutting navigable waterways and a process for review of a proposed structure sought to be placed on the bed of an impoundment owned by a hydroelectric company.
Dam Removal and Taking of Riparian Rights
The legislature has provided assurance that riparian rights will presumptively accompany title to lands on the shore of Wisconsin flowages. A different concern arises when a flowage – long after becoming the “natural condition” of the waterbody – reverts to its character as a stream or shallow marsh after the removal of the dam by which it was created.
As noted above, the riparian owner’s bundle of rights includes the right to a proportional share of dry land created by the permanent recession of the waters of a natural lake. Reliction adds to the title of a riparian owner from once-submerged lands formerly held in the public trust. But in the case of a flowage, a third party’s property rights might intervene between the flowage shoreline and the receding edge of the navigable water. Taking the example of the Sailor Creek flowage, if it were to revert to a creek, Lobermeier would apparently become the riparian owner and Movrich’s riparian rights would disappear.
Even in situations in which there is no intervening riparian ownership, the owners of frontage on a flowage might face the prospect of a significant loss of value – both economically and in terms of the use and enjoyment of property – when a dam is lowered or removed. A question arises whether this loss of value or the wholesale taking of riparian rights is compensable. A decision issued in 2022 by the U.S. District Court for the Eastern District of Wisconsin suggests that it is not.
In Kreuziger v. Milwaukee County, the plaintiff filed claims for a taking and for inverse condemnation under the U.S. and Wisconsin Constitutions based on the removal of the Estabrook Dam, which was formerly located on the Milwaukee River north of the city of Milwaukee. Defendant Milwaukee County owned and operated the dam on a seasonal basis to create higher surface-water levels between spring and fall. The central question in this case was whether Kreuziger had a property right in the area between the seasonal high-water mark and the lower water level when the dam was removed and the impoundment receded to the level of the flowing river. The district court, quoting U.S. Supreme Court precedent, held:
“Whatever rights may be as between equals such as riparian owners, they are not the measure of riparian rights on a navigable stream relative to the function of the Government in improving navigation. Where these interests conflict, they are not to be reconciled as between equals, but the private interest must give way to the superior right, or perhaps it would be more accurate to say that as against the Government such private interest is not a right at all.”26
Since Kreuziger, it remains an open question whether a riparian owner on a flowage has any claim against a private dam owner who elects to lower or remove a dam, potentially extinguishing the riparian owner’s rights. An early Wisconsin case, Smith v. Youmans,27 held that the raising of the water level of Lake Beulah by a mill dam constructed in the mid-19th century and the resulting development of summer homes and resorts around the lake over the next several decades created prescriptive easement rights for riparian owners who had relied on the established water level. The Youmans court affirmed an injunction issued to require the dam owner to continue to maintain the accustomed water levels of the lake.
While there was no governmental ownership or action involved in Youmans, dams are now comprehensively regulated by the DNR, and permits are required both for altering the water level controlled by the dam and for dam removal.28 In either situation, the DNR is required to apply a public-interest standard in approving such applications. It is not clear that the consequential damage or taking of riparian rights resulting from lowering or removal of a privately owned dam would be attributed to the dam owner or to the DNR as the authorizing agency. In such cases, the state’s regulatory determination under its navigable waters jurisdiction would seem to be the intervening cause of any taking of riparian rights, leaving the owners of property surrounding the flowage without a remedy short of acquiring ownership of the dam and accepting financial responsibility for its repair and maintenance.
Conclusion
Water is a finite and increasingly valuable asset. Thus, real estate lawyers can anticipate that waterfront property disputes will be a perennial source of new case law and legislation. The number and diversity of waterbodies in Wisconsin ensure an almost limitless variety of factual circumstances involving the ownership of the bank, the ownership of the bed as between private parties and the public, the nature of the ownership interest as between fee title and easement, and the language of individual deeds that might limit or extinguish riparian rights.
Notwithstanding the legislatively established presumption of riparian rights on the part of shoreland owners, the prohibition on transfer of such rights to non-riparian owners, and codification of bright-line rules for reasonable riparian use, there will never be a shortage of novel and complex questions arising from the interplay between public and private rights in navigable waters and between competing claims by adjacent riparian owners.
Future disputes in this area of law will also almost certainly involve the property effects arising from climate-induced changes – flooding or drought – to the water level of lakes and rivers. It is hoped that Wisconsin’s well-developed law of riparian rights will provide both flexibility and certainty to address those new challenges.
Endnotes
1 See Larry A. Konopacki, The Public Trust Doctrine: Managing Navigable Waters in the Public Interest, 95 Wis. Law. 26 (Sept. 2022).
2 Priewev. Wisconsin State Land Improvement Co., 93 Wis. 534, 550, 67 N.W. 918 (1896) (quoting Illinois Cent. R. Co. v. Illinois, 146 U.S. 387 (1892)).
3 State v. Bleck, 114 Wis. 2d 454, 466, 338 N.W.2d 492 (1983); Doemel v. Jantz, 180 Wis. 225, 231, 193 N.W. 393 (1923); see alsoMunninghoff v. Wisconsin Conservation Comm’n, 255 Wis. 252, 38 N.W.2d 712 (Wis. 1949); Delaplaine v. Chicago & Nw. Ry. Co., 42 Wis. 214, 230 (1877).
4 See Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248, 265 (1877) (recognizing “construction of works necessary to protect [riparian] land against the action of the water” as riparian right founded on “the necessities of self preservation.”).
5 De Simone v. Kramer, 77 Wis. 2d 188, 197, 252 N.W.2d 653 (1977); Rondesvedt v. Running, 19 Wis. 2d 614, 620, 121 N.W.2d 1 (1963).
6 See Doemel, 180 Wis. 225.
7 R.W. Docks & Slips v. State, 2001 WI 73, ¶ 22, 244 Wis. 2d 497, 628 N.W.2d 781.
8 See, e.g., Hilton v. DNR, 2006 WI 84, 717 N.W.2d 166 (noting statutory presumption of reasonableness under Wis. Stat. sec. 30.12(1g)(f) is two boat slips for the first 50 feet of a riparian owner’s shoreline and no more than one additional boat slip for each additional 50 feet).
9 See Wis. Stat. § 30.133; Wis. Admin Code § NR 326.03(11).
10 See Wis. Stat. § 30.131.
11 Wis. Stat. § 30.01(5r).
12 Wis. Admin. Code § NR 320.03(12).
13 See Northern Pine-Land Co. v. Bigelow, 84 Wis. 157, 54 N.W. 496, 498 (1893) (quoting Cohn v. Wausau Boom Co. 47 Wis. 314, 2 N.W. 546 (1879) (“[I]t is settled in this state that a riparian owner on navigable water may construct … proper wharves, piers, and booms in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water.”).) That said, the statutes authorize municipalities to establish pierhead lines that might be beyond the point of navigability for smaller watercraft. See Wis. Stat. § 30.13(3).
14 See id.
15 Lopardo v. Fleming Cos. 97 F.3d 921, 929 (7th Cir. 1996) (citing Nosek v. Stryker, 103 Wis. 2d 633, 309 N.W.2d 868 (Ct. App. 1981)).
16 Nosek, 103 Wis. 2d at 640 (quoting Cohn v. Wausau Boom Co., 47 Wis. 314, 322, 2 N.W. 546 (1879)).
17 Rondesvedt v. Running, 19 Wis. 2d 614, 621, 121 N.W.2d 1 (1963); Wis. Admin Code § NR 326.07(1); see also Borsellino v. Kole, 168 Wis. 2d 611, 616, 484 N.W.2d 564 (Ct. App. 1992) (“There is no set rule in Wisconsin for establishing the extension of boundaries into a lake between contiguous shoreline properties.”).
18 Doemel, 180 Wis. at 230-31.
19 Mayer v. Grueber, 29 Wis. 2d 168, 175, 138 N.W.2d 197 (1965).
20 Id. at 174
21 Movrich v. Lobermeier, 2018 WI 9, 379 Wis. 2d 269, 905 N.W.2d 807.
22 Id. ¶ 82 (R. Bradley, J., dissenting) (citing definition of an “artificial waterbody” in Wis. Stat. section 30.19(1b)(a) as one “that does not have a history of being a lake or stream or of being part of a lake or stream”).
23 Id. ¶ 83 (R. Bradley, J., dissenting) (citing Johnson v. Eimerman, 140 Wis. 327, 330, 122 N.W. 775 (1909), and Haase v. Kingston Coop. Creamery Ass’n, 212 Wis. 585, 588, 250 N.W. 444 (1933)).
24 See Smith v. Youmans, 96 Wis. 103, 70 N.W. 115 (1897); Haase v. Kingston Coop. Creamery Ass’n, 212 Wis. at 588.
25 Movrich, 2018 WI 9, ¶ 94, 379 Wis. 2d 269.
26 Kreuziger v. Milwaukee Cnty., No. 19-CV-1747-JPS, 2022 WL 3017431, at *5 (E.D. Wis. July 29, 2022) (appeal filed) (quoting United States v. Willow RiverPower Co., 324 U.S. 499, 510 (1945)).
27 Smith, 96 Wis. 103.
28 See Wis. Stat. § 31.02 (“The department, in the interest of public rights in navigable waters, to promote safety, and to protect life, health, property, property values, and economic values may regulate and control the level and flow of water in all navigable waters…”).
» Cite this article: 95 Wis. Law. 28-33 (November 2022).
