Can I Put My Pier in the Water?

January 16, 2017

A recent case decided November 29, 2016, by the Court of Appeals answers some questions regarding the Public Trust Doctrine in Wisconsin.

This particular case concerns the respective rights of owners of waterfront and waterbed property on the Sailor Creek Flowage in Price County, WI. This is a flowage which was created by a dam in Sailor Creek. The litigating parties are siblings, and they got along well until something happened in approximately 2011 or 2012. The Movrichs own waterfront property on the flowage, and the Lobermeiers own part of the submerged land that forms the lakebed. While the parties got along, the Movrichs had a pier and the Lobermeiers utilized the pier for access to the lake. However, when the dispute arose, the Lobermeiers argued that because they owned the submerged land under the flowage, the Movrichs were trespassing and could not use their pier without the Lobermeiers’ permission.

Ultimately the Movrichs filed a lawsuit against the Lobermeiers seeking a declaration of their riparian rights incident to their property ownership and their ability to access the flowage and to install a pier or dock, as well as an injunction against the Lobermeiers to prevent them from coming onto the Movrichs’ property and interfering with the Movrichs’ rights.

A little history of ownership rights. The Public Trust Doctrine in Wisconsin extends to purely recreational purposes such as boating, swimming, fishing, hunting, and preservation of scenic beauty. The Public Trust Doctrine vests the ownership of land under “lakes” (i.e., lakebeds) in the State. By contrast, along a river the property owner owns to the thread of the stream. In a flowage, an individual may have title to the submerged land which is subject to the Public Trust Doctrine. The title to the submerged land is subject to the riparian rights based upon the ownership of the shorefront property. The rights of the riparian owner are not dependent on the ownership of the soil under the water, but upon the title to the banks.

The Court had to balance the riparian ownership rights with the Public Trust Doctrine. In this case the Court concluded that the Movrichs may access the flowage from their property and that they may likewise erect, maintain, or use a dock or pier extending from property into the flowage and anchored by posts at the bottom of the water bed or secured by flotation devices.

This conclusion was reached based on the interplay between the Public Trust Doctrine, property rights, and riparian rights. Because the flowage is subject to the Public Trust Doctrine and the private property rights and riparian rights are subordinate to that doctrine, the Court focused on the Public Trust Doctrine’s advocation for a pier on a flowage.

The Court concluded that it is without question that riparian property rights are subordinate to the Public Trust Doctrine. By virtue of the Movrichs’ riparian property ownership, the Movrichs – members of the public – simply have more immediate access to the flowage under the Public Trust Doctrine than does the general public. This does not mean the Movrichs obtain greater benefit under the Public Trust Doctrine than the general public, and it likewise does not transfer the Lobermeiers’ interest in the water bed property to the Movrichs. Rather, it simply means that based on the facts in front of the Court, the Movrichs, by virtue of owning riparian property, may directly access the flowage and erect, maintain, and use a pier or dock extending from their property as set forth in the trial courts. The Decision allows the Movrichs to fully enjoy the flowage as the Public Trust Doctrine mandates even though someone else may own the lakebed.

For more information about "Can I Put My Pier in the Water?," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743 or Micheal D. Hahn at mhahn@axley.com or 608.260.2483.