Up a Creek With a Paddle and No Pier

January 25, 2018

Following a case recently issued by the Supreme Court of Wisconsin, a riparian owner on a flowage may now be stuck up a creek with just a paddle for a canoe, and no right to place a pier off their property.

On Tuesday, the Wisconsin Supreme Court issued a ruling in the case Movrich v. Lobermeier, which may affect those who own property on a flowage in Wisconsin.  In the case, the Court changed the understanding of the law on how those property owners may be able to use the flowage in years to come.

For those who don’t know what a flowage is, it is essentially a waterbody created by a dam (some lakes are also created by dams, but are not considered flowages).  In this case, the Movriches and the Lobermeiers both owned property on a flowage, and the Movriches wanted to install a pier extending from their shoreline.  The Lobermeiers (who happened to be related to the Movriches!) objected based on the apparently unchallenged fact that they owned legal title to the land under the water (i.e., the waterbed).  Based on its analysis of the law, the Court decided in favor of the Lobermeiers, and ruled that in the case of a flowage, the bundle of rights held by the owner of property along a navigable body of water (known as riparian rights) does not include the right to place a pier on a waterbed that is owned by another party.  The result is that the Movriches lost their right to place a pier extending out from their property onto the Lobermeiers’ waterbed property.

Prior to the Court’s decision, an owner of property along a navigable body of water (i.e., a “riparian owner”) was thought to have the right to place a pier into the water as long as it did not impede the public’s use and enjoyment of the water under Wisconsin’s Public Trust Doctrine. The Public Trust Doctrine provides that the State holds title to the bed of the water for the use and enjoyment by the public of the water, but the State does not inherently own title to the waterbed itself.  In Wisconsin, each riparian owner is entitled to have reasonable access to and from the shore to reach navigable water that is exclusive of every other owner.  Although there was no Wisconsin case law directly on point, other states and most people familiar with the concept of “riparian rights” or water law issues, believed that those rights extended to installing piers on all navigable bodies of water, including flowages.

In Movrich, the Court grappled with the issue of whose rights control when a private party owns title to the waterbed adjacent to a riparian property owned by another party.  The issue is unique to flowages because, unlike lakes, streams, and rivers, the underlying land was owned by individual owners prior to the creation of the flowage by installing a dam.  For this reason, the Court decided that the Lobermeiers’ title to the waterbed of the flowage, took precedence and allowed them to prevent the Movriches from placing a pier on the waterbed, even though the Movriches own the water-front property.  In other words, while the Public Trust Doctrine allows riparian owners to enjoy the use of the water, those rights can be trumped by the fee simple ownership of the party having title to the underlying waterbed for property on a flowage.  To understand how unique this decision is, as the dissent in the case notes, there are no other reported cases in U.S. courts that restrict placement of a pier on navigable waters in deference to the rights of a fee owner of the underlying land.

The largest concern following the Movrich decision is that it is unlikely that owners of property on flowages know whether they or another party own fee title to the waterbed adjacent to their property. The good news is that ownership of the waterbed likely won’t become an issue unless there are other disputes between property owners, or unless the property is about to be purchased or sold.  Still, there is an additional concern for prospective buyers of properties having frontage on a flowage.   Prospective buyers will need to check if someone besides the seller owns title to the waterbed which abuts the property to ensure that what they purchase includes the right to place a pier in the waterway and on the waterbed.  The Court’s decision means that absent receiving a deed which includes the waterbed adjacent to a riparian property owner’s property, a purchaser can’t be certain she can place a pier in the waterbed adjacent to the property.

The takeaway? Unless an owner of property on a flowage knows she owns the fee simple title to the waterbed adjacent to her property, it might be worth obtaining a title report to see who does. Without that information, any apparent riparian right to install a pier on the waterbed may be dead in the water.

If you are wondering whether you currently live on a flowage (or are considering buying property which may be on a flowage), and have concerns about your riparian rights, contact the water law lawyers at Axley as we have experience in the area and can offer practical solutions and advice.

For more information about "Up a Creek With a Paddle and No Pier," contact Tracy J. Murn at tmurn@axley.com or 262.409.2294 or Richard E. Petershack at rpetershack@axley.com or 608.283.6726 or Micheal D. Hahn at mhahn@axley.com or 608.260.2483.