Movrich v. Lobermeier
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The Supreme Court affirmed in part and reversed in part the decision of the court of appeals affirming the circuit court’s judgment entered in favor of Plaintiffs regarding their asserted right to install a pier and to access the Sailor Creek Flowage directly from their shoreline property.
Defendants, who owned the waterbed of the Flowage where Plaintiffs’ property met the water, appealed, arguing that the presence of navigable water over their property did not affect their right to prohibit Plaintiffs from installing a pier into or over the portion of the waterbed of the Flowage that Plaintiffs owned. The Supreme Court held (1) Plaintiffs’ private property rights are not sufficient to place a pier into or over the waterbed of the Flowage without Defendants’ permission based on the rights attendant to their shoreline property; (2) the public trust doctrine conveys no private property rights, regardless of the presence of navigable water; and (3) as long as Plaintiffs 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 directly from their shoreline property.
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2018 WI 9 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP583 Jerome Movrich and Gail Movrich, Plaintiffs-Respondents, v. David J. Lobermeier and Diane Lobermeier, Defendants-Appellants-Petitioners. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis. 2d 724, 889 N.W.2d 454 PDC No: 2016 WI App 90 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 23, 2018 September 20, 2017 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Price Patrick J. Madden JUSTICES: CONCURRED: CONCURRED/DISSENTED: ABRAHAMSON, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by A.W. BRALDEY, J. and ABRAHAMSON, J. (except Part II) (opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendants-appellants-petitioners, there were briefs filed by Brian G. Formella and Anderson, O’Brien, Bertz, Skrenes & Golla, LLP, Stevens Point. There was an oral argument by Brian G. Formella. For the plaintiffs-respondents, there was a brief and oral argument by Daniel Snyder, Park Falls. An amicus curiae brief was filed on behalf of Big Cedar Lake Protection and Rehabilitation District and Wisconsin Association of Lakes, Inc. by William P. O’connor and Wheeler, Van Sickle & Anderson, S.C., Madison. There was an oral argument by William P. O'Connor. An amicus curiae brief was filed on behalf of Wisconsin REALTORS Association by Thomas D. Larson and Wisconsin REALTORS Association, Madison. 2 2018 WI 9 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP583 (L.C. Nos. 2013CV22 & 2013CV78) STATE OF WISCONSIN : IN SUPREME COURT Jerome Movrich and Gail Movrich, FILED Plaintiffs-Respondents, JAN 23, 2018 v. David J. Lobermeier and Diane Lobermeier, Diane M. Fremgen Acting Clerk of Supreme Court Defendants-Appellants-Petitioners. REVIEW of a published decision of the court of appeals. Affirmed in part; reversed in part. ¶1 PATIENCE DRAKE ROGGENSACK, C.J. David and Diane Lobermeier appeal a decision of the court of appeals, affirming the circuit court's1 judgment entered in favor of Jerome and Gail Movrich regarding their asserted right to install a pier and to access the Sailor Creek Flowage directly from their shoreline property. Lobermeiers own the waterbed of the Flowage where the Movrich property meets the water.2 Lobermeiers contend that the presence of navigable water over their property does not affect their basic property rights, including the right to prohibit 1 The Honorable Patrick J. Madden of Price County presided. 2 Lobermeiers do not own the entire waterbed. No. 2015AP583 Movriches from installing a pier into or over the portion of the waterbed further of the contend Flowage that that Lobermeiers Movriches may own. access Flowage only from a public access point. the Lobermeiers Sailor Creek Movriches respond that Lobermeiers' ownership is qualified by and subservient to their asserted riparian rights and to the Wisconsin public trust doctrine. ¶2 There are consider whether combined with overcome three issues on this appeal. Movriches their rights Lobermeiers' have under private riparian the rights, public property First, we which trust rights when doctrine, such Movriches can place a pier on or over Lobermeiers' property. that To answer this question we review property rights, riparian rights, and the public trust doctrine, detailing the origin and extent of each. ¶3 In regard to the first issue, we conclude that while Movriches' property borders the Flowage, they are not entitled to those 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. Rather, any property rights Movriches may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with Lobermeiers' property rights or the flowage easement's creation of a navigable body of water. Because the placement of a pier is inconsistent with Lobermeiers' fee simple property interest and does not arise from the flowage easement that supports only 2 No. 2015AP583 public rights in navigable waters, Movriches' private property rights are not sufficient to place a pier into or over the waterbed of the Flowage without Lobermeiers' permission based on the rights attendant to their shoreline property. ¶4 to Second, we consider the nature of the flowage waters, which all agree the public trust doctrine applies, and whether the public trust doctrine grants Movriches the right to install a pier directly from their property onto or over the portion of the waterbed that is privately owned by Lobermeiers. In answering extent the this inquiry, existence of we consider navigable whether waters over and to what Lobermeiers' privately-owned property affects Lobermeiers' rights. ¶5 On this issue, we conclude that the public trust doctrine conveys no private property rights, regardless of the presence of navigable water. at issue here, title remain with the owner. to the In a flowage easement such as is property under the flowage may While the public trust doctrine provides a right to use the flowage waters for recreational purposes, that right is held in trust equally for all. Furthermore, although the Lobermeiers' property rights are modified to the extent that the public may use the flowage waters for recreational purposes, no private property right to construct a pier arises from the public trust doctrine. ¶6 Third, we consider whether the Wisconsin public trust doctrine when combined with the shoreline location of Movriches' property allows Movriches to access and exit the flowage waters 3 No. directly from their abutting property; or, 2015AP583 whether, because Lobermeiers hold title to the flowage waterbed, Movriches must access the Flowage from the public access. On this issue, we conclude that as long as 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 directly from their shoreline property. ¶7 Accordingly, we affirm the court of appeals in part and reverse it in part. I. ¶8 This appeal BACKGROUND concerns the tension between asserted riparian rights, ownership of property underlying a flowage, and Wisconsin's public trust doctrine. owners David and Diane More specifically, property Lobermeier appeal from a judgment granting Jerome and Gail Movrich the right to place a pier into and over Lobermeiers' property and to access Sailor Flowage directly from Movriches' abutting property. Creek Movrich v. Lobermeier, 2016 WI App 90, 372 Wis. 2d 724, 889 N.W.2d 454. ¶9 The Sailor Creek Flowage is a 201 acre, man-made lake located near the Town of Fifield in Price County, Wisconsin. was created by a dam placed on Sailor Creek in 1941. time, a Deed of Flowage Rights was executed by It At that Margaret Hussmann, who granted the Town of Fifield "the perpetual rights, privilege and easement to submerge, flood and/or ground water elevation" of the underlying property. raise the Over time, the property that Hussmann subjected to the flowage easement in 4 No. 1941 was transferred to various persons. 2015AP583 Some of that property was deeded to brothers David and Robert Lobermeier in 2000, while other property eventually became the Sailor Creek Flowage Subdivision, where Movriches purchased property in 2006. ¶10 Today, Lobermeiers own a portion of the waterbed of the Flowage that is subject to the Hussmann flowage easement. Lobermeiers' portion of the waterbed abuts Movriches' property.3 David Lobermeier and Gail Movrich are brother and sister. For a number of years the families existed in harmony, each making use of a pier on the Movrich property to moor their boats, and from which they swam and fished. In about 2011 or 2012, however, the families had a falling out, at which point Lobermeiers began to assert that they have exclusive rights to the waterbed at issue. Lobermeiers concede that the Wisconsin public trust doctrine grants Movriches, and all other members of the public, access to the Flowage's waters for navigation and recreation purposes.4 ¶11 of which This case originally involved several properties, each abutted the Lobermeier waterbed property. David 3 The Movrich property is legally described as Lot One (1) of Sailor Creek Subdivision. A surveyor's description of the Sailor Creek Subdivision provides that the lots run "to the shoreline" of the Flowage and thence "along said shoreline." 4 The Flowage is navigable, meaning that it is capable of supporting at least light water craft at some time during the year. It is considered a public water pursuant to Wis. Stat. § 30.10 (2013-14). It is undisputed that the public trust doctrine applies to the Flowage. All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated. 5 No. 2015AP583 Lobermeier first brought an action against Robert D. McWilliams, who sought a declaration that Wisconsin's public trust doctrine granted to McWilliams the right to access Lobermeiers' waterbed property from McWilliams' abutting lot, as well as the right to install the pads of his pier directly on the bed of the Flowage, i.e., on the Lobermeier waterbed property. ¶12 against Separately, Movriches filed a summons and complaint Lobermeiers seeking a declaration of their right to install and maintain a pier extending from their land over the Flowage for boating and recreational purposes and their right to enter the pursuant Flowage to their directly asserted from their riparian shoreline rights and commonly sanctioned by the public trust doctrine. for property purposes These cases were consolidated and heard together in Price County circuit court. ¶13 Following a one-day trial, the circuit court granted judgment in favor of Movriches, declaring that they "have the right to enter the waters of the said Sailor Creek Flowage from their said real estate . . . [and] to erect, maintain, and use a dock or pier anchored on their said real estate and extending over the waters of the said Sailor Creek Flowage . . . ." The circuit court enjoined Lobermeiers from coming upon Movriches' property and from exercise of their interfering rights of or hindering ownership. Movriches The circuit in the court limited its analysis to the public trust doctrine, concluding that the doctrine includes the right of an abutting property 6 No. 2015AP583 owner to place a pier on or over privately-owned land when it is submerged beneath navigable water. The court of appeals affirmed. ¶14 court allows Lobermeiers of appeals' Movriches petitioned conclusion to access for that the review, the public Flowage challenging trust directly the doctrine from their abutting property or to install and maintain a pier over the Flowage, whether supported by posts resting on the Flowage bed or by flotation devices. We granted review and, for the reasons explained below, we now affirm in part and reverse in part. II. A. ¶15 focus Standard of Review The relevant facts are not disputed. on whether principles trust DISCUSSION of prior property doctrine. court law, These independently review. decisions riparian are Accordingly, we properly rights, questions of applied and law the the public that we Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, ¶35, 319 Wis. 2d 1, 768 N.W.2d 615; Linden v. Cascade Stone Co., Inc., 2005 WI 113, ¶5, 283 Wis. 2d 606, 699 N.W.2d 189. B. ¶16 General Principles The parties have not presented any case law discussing the interplay between basic property rights, riparian rights, and the public trust doctrine under these or similar facts, i.e., where the bed of a navigable body of water is privately owned, only in part. We address each issue in turn. 7 No. 1. ¶17 Both the 2015AP583 Private Property Rights circuit court and the court of appeals analyzed the public trust doctrine and considered the rights of alleged riparian owners without first addressing the types of common law property rights presented herein. various We agree with Lobermeiers that we must begin our analysis by addressing their private property rights and those of Movriches, respectively, because both assert private property interests, those of the waterbed-owning Lobermeiers and those of the in fee shoreline-owning Movriches. ¶18 simple. Lobermeiers own their submerged property "Authorities to prove that a fee-simple estate is the highest tenure known to the law are quite unnecessary, as the principle is elementary and needs no support." Lycoming Fire Ins. Co. of Muncy, Pa. v. Haven, 95 U.S. 242, 245 (1877). owner in fee simple is presumed to be the An "entire, unconditional, and sole owner[] of [any] buildings as well as the land . . . ." Id. This is true regardless of whether the property has positive economic or market value. See Phillips v. Wash. Legal Found., 524 U.S. 156, 170 (1998). ¶19 In Wisconsin, the breadth of rights accompanying a fee simple interest is settled law. See Walgreen Co. v. City of Madison, Wis. 2d 158, 2008 (describing possess, WI the enjoy, 80, fee ¶44, simple dispose of, 311 interest exclude, as or the the 752 N.W.2d 687 right right to use, not to exercise any of these rights); ABKA Ltd. P'ship v. DNR, 2001 WI 8 No. 2015AP583 App 223, ¶28, 247 Wis. 2d 793, 635 N.W.2d 168 ("A fee simple interest means 'an interest in land that, being the broadest interest allowed by law, endures until the current holder dies without heirs . . . .'"). These rights are equally reflected in federal law.5 ¶20 The significance of property rights is reflected in the law of damages. own property onto One who intentionally steps from his or her the property of another, irrespective of whether he or she thereby causes harm to any legally protected interest of the Monches Fish & N.W.2d 6; Wisconsin see law trespass. other, Game, also is liable 2010 WI 93, Restatement acknowledges for that trespass. ¶40, 328 (Second) actual Wis. 2d 436, of harm Grygiel Torts occurs § v. 787 158. in every Jacque v. Steenberg Homes, 209 Wis. 2d 605, 619, 563 N.W.2d 154 (1997). Although consent to entry is generally a defense to an action for trespass, consent may later be revoked. Grygiel, 328 Wis. 2d 436, ¶41; Manor Enterprises, Inc. v. Vivid, Inc., 228 Restatement Wis. 2d 382, (Second) of 394, 596 Torts § N.W.2d 828 160. (1999); However, see fee also simple interests may be subject to certain limitations when an easement 5 See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ("Property rights in a physical thing have been described as the rights 'to possess, use and dispose of it.'") ("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."). 9 No. is granted. 2015AP583 See Borek Cranberry Marsh, Inc. v. Jackson Cty., 2009 WI App 129, ¶¶9-11, 321 Wis. 2d 437, 773 N.W.2d 522. ¶21 These principles of property law are crucial to our analysis. However, despite the consideration of private property rights, the presence of navigable water makes this a more complicated case. We keep this in mind as we address alleged riparian rights and the public trust doctrine. 2. ¶22 Riparian Rights Riparian rights may include "special rights to make use of water in a waterway adjoining [an] owner's property." 93 C.J.S. Waters § 9. They are the "bundle of rights" that may be conferred upon a property owner by virtue of his contiguity to a navigable body of water. 174, 138 N.W.2d 197 Mayer v. Grueber, 29 Wis. 2d 168, (1965). Riparian rights are private property rights, subject to and limited to some extent by the public trust doctrine, discussed below. R.W. Docks & Slips v. DNR, 2001 WI 73, ¶18, 244 Wis. 2d 497, 628 N.W.2d 781. previously recognized that common law riparian We have rights 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; the right to any lands formed by accretion or reliction; the right to have water flow to the land without artificial obstruction; the limited right to intrude onto the lakebed to construct devices for protection from erosion; and the right, now conditioned by statute, to construct a pier or similar structure in aid of navigation. 10 may No. Id., ¶21 (citing Cassidy v. DNR, 132 2015AP583 Wis. 2d 153, 159, 390 N.W.2d 81 (Ct. App. 1986)). ¶23 The extent of riparian rights varies in accordance with the nature of the body of water at issue. Mayer, 29 Wis. 2d riverfront at 173. With respect to the owner of property, a riparian owner may own to the thread of the stream. Id. However, the title of a riparian owner is qualified and subject to the interests of the state. Id. The "owner of land abutting a natural lake or pond owns to the water line only." Id. The lake bottom is held in trust for the people of the state. Id. ¶24 property In Wisconsin, abutting riparian rights. a there is natural a body Id. at 174. presumption of water that confers owning certain However, Wisconsin common law also establishes that riparian rights, including rights to use the land beneath a body of water, are severable from basic property rights if the deed in question makes that severability clear. "[O]ne who acquires land abutting a stream or body of water may acquire no more than is conveyed by his deed." Id. In the case of a man-made body of water located wholly on the property of a single owner, there is no presumption in favor of riparian rights. Id. at 176.6 Rather, "all of the incidents of 6 In Mayer v. Grueber, explained in further detail below, plaintiff Mayer sought an injunction to prevent Grueber from trespassing onto the waters of a man-made lake, the bed of which was entirely owned by Mayer. Mayer v. Grueber, 29 Wis. 2d 168, 170, 138 N.W.2d 197 (1965). Grueber counter-claimed, insisting that as a "riparian owner" he was entitled to the beneficial use (continued) 11 No. 2015AP583 ownership are vested in the owner of the land" to convey as he or she expresses in conveyances. 3. ¶25 the Id. Public Trust Doctrine Under the public trust doctrine, as a general rule, State of Wisconsin "holds the beds underlying waters in trust for all of its citizens." navigable Muench v. Public Serv. Comm'n, 261 Wis. 492, 501, 53 N.W.2d 514. However, a riparian owner on the bank of a navigable stream may have a qualified title in the stream bed to its center. The public include rights protected boating, scenic beauty. under swimming, the fishing, public Id. at 502. trust hunting and doctrine preserving Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶72, 350 Wis. 2d 45, 833 N.W.2d 800. ¶26 The doctrine can be traced back to the Northwest Ordinance of 1787, which set up the machinery for the government of the Wisconsin Northwest Territory Const. IX, art. § after 1, the adopted Revolutionary by the War. Territorial Convention on February 17, 1848, adopted verbatim the words of the Northwest Ordinance with respect to navigable waters: The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants and enjoyment of the lake. Id. 12 No. 2015AP583 of the state as to the citizens of the United States, without any tax, impost or duty therefor. Muench, 261 Wis. 492 at 499-500. ¶27 Although the doctrine was originally intended to apply only to water that was navigable per se, "[t]his court has long held that the public trust in navigable waters 'should be interpreted in the broad and beneficent spirit that gave rise to it in order benefits.'" that the people may fully enjoy the intended Rock-Koshkonong Lake Dist., 350 Wis. 2d 45, ¶72, (citing Diana Shooting Club v. Husting, 156 Wis. 261, 271, 145 N.W. 816 (1914)). resulted in "Broadly interpreting the public trust has recognition navigability rights. recreational purposes of more Protection such as than now just extends boating, commercial to swimming, hunting, . . . and . . . preserv[ing] scenic beauty.'" 'purely fishing, Id. The doctrine traditionally applies to all areas within the ordinary high water mark of the body of water in question. R.W. Docks & Slips, 244 Wis. 2d 497, ¶19. ¶28 property The public rights. trust Rather, doctrine for at does least not a convey century, private we have recognized the public trust doctrine as a limit on riparian rights. Wisconsin common law has established that the right to place structures for access to navigable water is "qualified, subordinate, and subject to the paramount interest of the state and the paramount rights of the public in navigable waters." Id., ¶22. This is true even where the bed is privately held, as long as the body of water is public, navigable and created by 13 No. use of public waters. 2015AP583 See Klingeisen v. DNR, 163 Wis. 2d 921, 927-28, 472 N.W.2d 603 (Ct. App. 1991). ¶29 The regulations legislature, to protect public trust doctrine. 22 Wis. 2d 38, 125 as trustee, public is rights empowered established to adopt under the See Ashwaubenon v. Public Serv. Comm'n, N.W.2d 647 (1963); Wis. 2d 454, 465, 338 N.W.2d 492 (1983). State v. Bleck, 114 Under this authority, the legislature has enacted provisions regulating the placement of any structure on the bed of navigable waters, unless placed under permit or other legislative authority. §§ 30.12-30.13. See Wis. Stat. However, where a waterbed is privately held, the state has no authority to compel private property owners to accept pier placement. See Mayer, 29 Wis. 2d at 170. C. 1. ¶30 Application Common Law Property Rights The circuit court and court of appeals conducted their analyses based on the assumption that the public trust doctrine controls the outcome of this case. However, as noted above, neither the public trust doctrine nor riparian rights principles addresses private property interests between abutting property owners. The presence of navigable water does not cancel private property rights, although it may modify those rights. ¶31 We Lobermeiers begin and by examining Movriches, the ownership respectively. interests Lobermeiers own of a portion of the waterbed of the Flowage, purchased June 19, 2000. At the time of purchase, David 14 Lobermeier and his brother, No. Robert, were warrantied that there were no 2015AP583 easements, encroachments, walkways, or driveways affecting the property, except those listed in the commitment, and that no claims of easements, encroachments, walkways, or driveways had been made during the previous owner's ownership. (1) of the Sailor Creek Movriches own Lot One Subdivision. The boundary between Movriches' property and Lobermeiers' property is the shoreline of the Flowage, as described in the surveyor's certificate admitted at trial. ¶32 In support of Lobermeiers' argument that they may prohibit an abutting lot owner from placing a pier on or over the Flowage, or from accessing the Flowage directly from their abutting property, federal cases property that rights.7 Lobermeiers cite to numerous state and lay the foundation of common law private Movriches contend 7 that these cases are Loretto, 458 U.S. at 434 ("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."); Lycoming Fire Ins. Co. of Muncy, Pa. v. Haven, 95 U.S. 242, 245 (1877) (concluding that landowners under a fee simple title are presumed to be the "entire, unconditional, and sole owners of the buildings as well as the land . . . ."); Walgreen Co. v. City of Madison, 2008 WI 80, ¶44, 311 Wis. 2d 158, 752 N.W.2d 687 (concluding that fee simple rights include the right of exclusion); Christensen v. Mann, 187 Wis. 567, 581, 204 N.W. 499 (1925) ("[P]roperty rights extend upwards from the surface to an unlimited extent . . . ."); Burnham v. Merch. Exch. Bank, 92 Wis. 277, 280, 66 N.W. 510 (1896) (holding that courts must protect the right of the owner to his property); Brownell v. Durkee, 79 Wis. 658, 663, 48 N.W. 241 (1891) (concluding that property rights should be "protected and secured as far as possible."); ABKA Ltd. P'ship v. DNR, 2001 WI App 223, ¶28, 247 Wis. 2d 793, 635 N.W.2d 168 (concluding that an interest in fee simple is the broadest interest allowed by law). 15 No. inapposite. shoreline While property addressing it on is a principles true that flowage, of none they property law, of all them are which, 2015AP583 addresses relevant as we in have acknowledged, must be considered. ¶33 Under both Wisconsin and federal law, a fee simple estate is "the highest tenure known to the law." Ins. Co. of Muncy, Pa., 95 U.S. at 245. Lycoming Fire Among other rights, an owner in fee simple enjoys a basic right to exclude. It is undisputed that were this contest between two upland property owners, any encroachment by one onto the property of the other would be trespass. Jacque, 209 Wis. 2d at 617-18. Lobermeiers' property interests are subject to certain protections, as are the public's interests in navigable water. at 501-02. See Muench, 261 Wis. Therefore, unless riparian rights or the public trust doctrine modify those rights, Movriches may not interfere with the property rights of Lobermeiers. We therefore turn to whether Movriches are riparian owners and what effect the public trust doctrine has on Movriches' and Lobermeiers' respective rights. 2. ¶34 shoreline" therefore Riparian Rights The Movriches allege that by virtue of owning "to the of the entitled Flowage, to all they of the are riparian "amenities of owners and waterfront property," including the right to install and maintain a pier extending from their property over the waters of the Flowage. 16 No. ¶35 2015AP583 As we set forth in Mayer v. Grueber, riparian rights vary depending on the body of water at issue. A perusal of the cited cases shows that the owner of property on a stream presumptively holds title to the middle of the watercourse. The cases, however, are in accord that the riparian rights and title to the land under the water are severable if the deed makes that limitation clear. In the case of natural lakes and bodies of water, the adjacent landowner owns only to the shore line; the lake bottom is held in trust for the people of the state. In the case of artificial bodies of water, all of the incidents of ownership are vested in the owner of the land. An artificial lake located wholly on the property of a single owner is his to use as he sees fit, provided, of course, that the use is lawful. He may if he wishes reserve to himself or his assigns the exclusive use of the lake or water rights. Mayer, 29 Wis. 2d at 176. ¶36 It is not disputed that the Flowage was created by the damming of Sailor Creek, a navigable public body of water, or that the Flowage is subject to the public trust doctrine. is unclear, however, is whether, simply by virtue of What their property abutting the Flowage, Movriches are entitled to the full "bundle of [riparian] rights" when the portion of the waterbed of the Flowage adjacent to their property is privately held. Id. at 174. ¶37 In Mayer, we considered whether defendant, Grueber, who owned property to the shoreline of an artificial lake, the bed of which was entirely owned by Mayer, was riparian rights despite the language of his deed. that he was not. entitled to We concluded First, the deed in question described the boundary of Grueber's property as "along the easterly bank." 17 No. Id. at 175. land 2015AP583 We concluded that "riparian rights and title to the under the limitation water clear." are severable Id. at if the 176. deed that Grueber Second, makes was specifically told that ownership of the tract would not entitle him or his wife to use of the lake. Id. at 172. After the Gruebers purchased the land and commenced using the lake for recreational purposes, they were Mayers and ordered off the lake. ¶38 Movriches argue accused of trespass by the Id. at 172-73. that Mayer should be limited to situations where the entire lakebed is privately owned, and that their riparian property without or waterbed arise to however, argue the why of the matters. regard out articulate Lobermeiers, express rights ownership court owning Instead, ownership they of the shoreline the of of waterbed. appeals entire assert failed portion that their of to a private property rights are no less important than Movriches' alleged riparian rights, and that the public trust doctrine cannot be used as a basis for allowing an abutting property owner to install a pier onto or over the Flowage, or to allow Movriches to access lot. Lobermeiers' property directly from their abutting Both parties have overstated their cases. ¶39 those While we agree that the facts in Mayer differ from presented herein, that difference is insufficient to extinguish Lobermeiers' fee simple interest in the waterbed that abuts Movriches' shoreline property. 18 As we have explained, the No. 2015AP583 public trust doctrine does not convey private property rights.8 Rather, it establishes rights of use of navigable waters that are held in trust for all members of the public. 3. ¶40 the Extent of Movriches' Rights Movriches claim that because their property borders on shoreline incidental to of the property Flowage ownership they have that riparian borders a rights naturally occurring body of water, such as installing and maintaining a pier for ordinary boating and recreational purposes. ¶41 First, they argue that the property law cited by Lobermeiers is inapposite and does not stand for the proposition that the owner of a flowage waterbed has the right to exclude access for pier placement. because underlying legal As explained above, we disagree, principles applicable to adjacent property owners are not extinguished and must be considered. On the contrary, the authorities cited by Movriches——namely, RockKoshkonong Lake Dist. v. DNR, Muench v. Public Serv. Comm'n, Doemel v. Jantz, and Diana Shooting Club v. Husting——do not support the proposition that Lobermeiers' fee simple title is overridden by Movriches alleged riparian rights. 8 As discussed above, the public trust doctrine has been "expansively interpreted to safeguard the public's use of navigable waters for purely recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve scenic beauty." R.W. Docks & Slips v. State of Wis., 2001 WI 73, ¶19, 244 Wis. 2d 497, 628 N.W.2d 781 (2001). 19 No. ¶42 2015AP583 In Doemel v. Jantz, we addressed whether a member of the public has a lawful right to enter and travel upon that portion of Lake Winnebago between the ordinary high and low water marks. of riparian In answering this question, we defined the scope rights and quoted, with approval, the following statement of law: Those [riparian] rights are not common to the citizens at large, but exist as incidents to the right of soil itself contiguous to and attingent on the water. In such ownership [of the shoreland], they have their origin, and not out of the ownership of the bed, and they are the same whether the riparian owner owns the soil under the water or not. Doemel, 180 Wis. at 231. ¶43 Movriches read this statement to mean that by virtue of owning to the shoreline of the Flowage, they are entitled to the full addressed range an of rights.9 riparian entirely different nature and in ownership. However, type of water, in Doemel both in we its Unlike the Flowage, Lake Winnebago is a naturally occurring lake. Although its water levels were artificially raised in 1850 and 1930, it is not man-made and, as far as we can tell, no portion of Lake Winnebago's waterbed is privately between owned. shoreline Therefore, property because and 9 a there was no privately-owned conflict waterbed, Specifically, in Doemel we held that "[t]he riparian owner also has the right to build piers, harbors, wharves, booms, and similar structures . . . incident to the ownership of the upland." Doemel v. Jantz, 180 Wis. 225, 231, 193 N.W. 393 (1923). 20 No. Doemel is not dispositive. 2015AP583 Rather, we read Doemel as addressing the range of riparian rights appurtenant to property ownership on natural, public, navigable lakes. ¶44 In Diana Shooting Club, we considered whether the right to hunt and fish on navigable waters is limited where the title to the land covered by the waters is privately held. We concluded that the public trust doctrine "should be interpreted in the broad and beneficent spirit that gave rise to it in order that the people may fully enjoy the intended benefits." Shooting Club, 156 Wis. at 271. Diana In so holding, we explained that riparian owners, although they may hold qualified title to the thread of a stream or river, may not interfere with public navigation doctrine. or other rights incident This remains good law. to the public trust However, while Diana Shooting Club spoke specifically to the Rock River, in the case at hand we are tasked with determining what rights the owners of land on which a man-made flowage now rests may assert against owners whose property ends at the shoreline. Diana Shooting Club is not helpful in deciding that question. ¶45 For similar reasons, we conclude that reliance on Rock-Koshkonong and Muench is misplaced. Movriches' In Rock- Koshkonong, we were tasked with determining, among other issues, whether the Wisconsin Department of Natural Resources (DNR) properly relied on the public trust doctrine for its authority to protect non-navigable land and non-navigable water above the ordinary high water mark. Rock-Koshkonong, 350 Wis. 2d 45, ¶11. 21 No. 2015AP583 We concluded that, in attempting to extend its public trust jurisdiction beyond navigable waters to non-navigable waters and land, the DNR moved beyond the language of the Constitution. Id., ¶77. ¶46 Movriches cite to paragraph 78 of Rock-Koshkonong, in which we wrote that riparian ownership runs to the center or thread of a stream as a "qualified title in the stream beds." Id., ¶78. However, the Movrich property stream; it borders a 201 acre flowage. does not border a Paragraph 78 provides no support for Movriches' assertion that they have the right to build a pier upon the Lobermeiers' property; it deals solely with the rights of the public under the public trust doctrine. ¶47 1130 Some may read Minehan v. Murphy, 149 Wis. 14, 134 N.W. (1912), Minehan was as an navigable waters. giving action assistance in to ejectment Id. at 14. Movriches. from the However, waterbed There, Minehan's title described her western boundary as "the center line of the creek." 14-15. of Id. at She sought to eject Murphy from encroaching on her side of the creek's center line. Id. at 15. The question on which the case turned was whether the navigable water that bordered Minehan's land was a lake or a river. Id. at 16. If it was a river, she had rights to the center line; if it was a lake, she did not. The navigable water was determined to be a river, and Minehan won. Id. at 17. with Movrich whether has However, Minehan has nothing to do the Lobermeiers' property. 22 right to place a pier on No. ¶48 Haase v. Kingston Co-operative Creamery 2015AP583 Ass'n, 212 Wis. 585, 250 N.W. 444 (1933), sets aside any misinterpretation of Minehan that would support a taking of rights due to a flowage upon private lands. was an action to recover for ice taken flowage over lands Haase owned in fee. private property Id. at 588. by Kingston Id. at 586. Haase from a Kingston claimed that due to the navigable waters over Haase's land for an extended time, title to the waterbed had passed to the state and, therefore, harvesting ice was part of the public's use of navigable waters. Id. We disagreed with Kingston's contention, and concluded that "title to the ice formed on this pond was in the plaintiff as the owner of the land beneath the same, and he is entitled defendant." ¶49 to recover the value of the ice taken by the evolution of the Id. at 589. Finally, in Muench we traced the public trust doctrine to determine whether the Public Service Commission was required to make findings proposed dam would violate the doctrine. as to whether a Again, we stated that private title to the waterbed underlying navigable waters is qualified and subject to the public's right to use and enjoy the water. Muench, 261 Wis. at 504-05. In other words, the owner of a waterbed may not use his or her property in such a way as to interfere with public rights. What we did not say was that the owner of a waterbed may not exercise his or her property rights in a way that interferes with another property owner's assertion of riparian rights. 23 No. ¶50 In others) short, establish Movriches their argue right that as these 2015AP583 (and owners, riparian cases and, independently, under the public trust doctrine, to install and maintain a pier anchored on their property and extending over or into the ignores right Lobermeiers' the to property exclude. property. rights As the of This reasoning Lobermeiers, United States completely including Supreme their Court has written: [A]n owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property . . . . [P]roperty law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. Loretto, 458 U.S. at 436-37. ¶51 Furthermore, both state and federal jurisprudence conclude that the common law property right to exclude applies both above and below a property's physical surface. See Loretto, 458 U.S. at 436 n.13 ("[A]n owner is entitled to the absolute premises, and undisturbed including the possession space of above, every as part much as of a the mine beneath."); Christensen v. Mann, 187 Wis. at 581 ("As property rights extend upwards from the surface to an unlimited extent, they also extend downwards into the soil, . . . ."). Moreover, we have consistently held that "due regard should be had to the rights which the owner has to 24 his property, and that these No. 2015AP583 rights should be protected and secured as far as possible." Brownell, 79 Wis. at 663. ¶52 Movriches also argue that they had the expectation that their property would include riparian rights, specifically the right to install a pier. First, they argue their property was marketed and sold as a "waterfront lot," and that at the time of purchase many of the properties maintained "open and obvious" piers. purchased this lot specifically on the Flowage Second, they claim they because it was a shoreline property, and for a period of years thereafter they made use of the Flowage by fishing, swimming, and kayaking. using a pier to moor their boat, These arguments may have had arguable merit if Movriches had purchased their property from Lobermeiers or if they had obtained an easement or license from Lobermeiers. However, neither of these events occurred. Furthermore, their arguments ignore Mayer's clear directive that "one who acquires land abutting a stream or body of water may acquire no more than is conveyed by his deed." ¶53 Mayer, 29 Wis. 2d at 174. The original conveyance given by Margaret Hussman to the Town of Fifield on September 13, 1941, did not convey any ownership interest in her land. Rather, it conveyed a type of easement to permit water to flow on her land. Borek Cranberry Marsh, 321 Wis. 2d 437, ¶¶9-11. ¶54 When Movriches took title to their land, the legal description on their deed made no reference to riparian rights. Meanwhile, the surveyor's certificate 25 clearly indicated that No. 2015AP583 their property extended only "to the shoreline" of the Flowage. Although they claim they purchased the lot with the intention of maintaining a pier, they did not purchase their lot from Lobermeiers, and their deed describes no legal right, title, or interest in the flowage waterbed. ¶55 We conclude that, as to the pier issue, Movriches have failed to establish that they are entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water where the lakebed is held in trust by the state or that the public trust doctrine creates an exception to Lobermeiers' property rights in the waterbed that is sufficient for placement of Movriches' pier on Lobermeiers' property. Therefore, Lobermeiers may prevent Movriches from installing a pier onto or over Lobermeiers' property without their permission. 4. ¶56 Movriches as Members of the Public Were these properties both upland, Movriches would be unable to step from their property onto Lobermeiers' property without trespassing. Jacque, 209 Wis. 2d at 617-18. however, property flowage Lobermeiers' that doctrine. public use. is This indisputably qualifies is submerged subject Lobermeiers' to beneath the rights a public in Here, public trust regard to Therefore, we agree that Movriches, as members of the public, are entitled to access and exit from the Flowage by way of their own shoreline property for purposes consistent with the public trust doctrine, e.g. swimming, fishing, and boating. 26 No. ¶57 Lobermeiers ask us to conclude that 2015AP583 this case is analogous to Mayer, where we held that because defendant Grueber had no ownership rights in the bed of the lake at issue, "he ha[d] no other rights in the waters over the bed of the lake unless he acquired possession." Mayer, those 29 rights Wis. 2d by at prescription 176. or However, adverse Mayer is distinguishable because the public trust doctrine did not apply in Mayer. Accordingly, we conclude that where the public trust doctrine applies to the body of water, an abutting property owner's rights are sufficient to access and exit the water. However, while Movriches may access and exit the Flowage from their own property for recreation purposes, Lobermeiers may not access or exit the Flowage except through the public access or with the permission of an owner of property bordering the Flowage. III. ¶58 There are three CONCLUSION issues presented in this review. First, we conclude that while Movriches' property borders the Flowage, they are not entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water where the lakebed is held in trust by the state. Rather, any rights Movriches may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with Lobermeiers' property rights or creation of a navigable body of water. the flowage easement's Because the placement of a pier is inconsistent with Lobermeiers' fee simple interest and 27 No. 2015AP583 does not arise from the flowage easement that supports only public rights in navigable waters, Movriches' private property rights are not sufficient to place a pier into or over the waterbed of the Flowage without Lobermeiers' permission based on the rights attendant to their shoreline property. ¶59 to Second, we consider the nature of the Flowage waters, which all agree the public trust doctrine applies, and whether the public trust doctrine grants Movriches the right to install a pier directly from their property onto or over the portion of the Flowage whose waterbed is privately owned by Lobermeiers. to what In answering this inquiry, we consider whether and extent Lobermeiers' the existence privately-owned of navigable property affects waters over Lobermeiers' rights. ¶60 On this issue, we conclude that the public trust doctrine conveys no private property rights, regardless of the presence of navigable water. at issue here, title remain with the owner. to the In a flowage easement such as is property under the flowage may While the public trust doctrine provides a right to use the flowage waters for recreational purposes, that right is held in trust equally for all. Furthermore, although the Lobermeiers' property rights are modified to the extent that the public may use the flowage waters for recreational purposes, no private property right to construct a pier arises from the public trust doctrine. 28 No. ¶61 when 2015AP583 Third, we consider whether the public trust doctrine, combined with the shoreline location of Movriches' property, allows Movriches to access and exit the flowage waters directly from their abutting property; or, whether, because Lobermeiers hold title to the flowage waterbed, Movriches must access the Flowage from the public access. On this issue, we conclude that as long as 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 directly from their shoreline property. ¶62 Accordingly, we affirm the court of appeals in part and reverse it in part. By the Court.—The decision affirmed in part; reversed in part. 29 of the court of appeals is No. ¶63 SHIRLEY dissenting in S. part). ABRAHAMSON, I join Justice separate writing except for Part II. 1 J. (concurring Rebecca G. 2015AP583.ssa in part, Bradley's No. ¶64 REBECCA GRASSL dissenting in part). BRADLEY, J. 2015AP583.rgb (concurring in part; Riparian rights in Wisconsin are sacred.1 For many, waterfront property in Wisconsin provides more than merely a place to live——it affords a lifestyle. The proverbial cottage "up north" offers the opportunity for fishing off the pier in the morning, waterskiing with children or grandchildren in the afternoon, and an early evening ride on the pontoon boat with friends and neighbors. riparian rights. right to build None of this is possible absent Traditionally, these rights have included "the piers, harbors, wharves, booms, and similar structures, in aid of navigation, and such right is also one which is incident to the ownership of the upland." Jantz, 180 Wis. 225, 231, 193 N.W. 393 (1923). Doemel v. The majority opinion sweeps away these cherished and longstanding property rights and extinguishes riparian rights for those with cottages or homes on Wisconsin's waters called flowages. 1 "Riparian" is defined as "relating to or living or located on the bank of watercourse (as a river or stream) or sometimes a lake." Webster's Third New International Dictionary of the English Language 1960 (3d ed. 1986). "Sacred" as used in this context, as in other riparian rights cases, is used to describe something secured against violation or infringement rather than in the religious sense. See, e.g., Chapman v. Oshkosh & M.R.R. Co., 33 Wis. 629, 637 (1873) ("And he holds every one of these [riparian] rights by as sacred a tenure as he holds the land from which they emanate."); Avery v. Fox, 2 F. Cas. 245, 247 (C.C.W.D. Mich. 1868) ("This right of private persons to the use of water as it flows by or through their lands, in any manner not inconsistent with the public easement, is as sacred as is the right of a person to his land, his house, or his personal property."). 1 No. ¶65 2015AP583.rgb The issues before this court are (1) whether Jerome and Gail Movrich may maintain a pier resting over David and Diane Lobermeiers' flowage bed property either as part of their riparian rights or under the public trust doctrine, and (2) whether the Movriches have the right to cross the Lobermeiers' flowage bed from their own property to use and enjoy the flowage waters for recreational purposes. majority reverses Lobermeiers own the the court flowage As to the first issue, the of bed appeals, in fee concluding simple the absolute, entitling them to exclude the Movriches from erecting a pier. As to the second issue, the majority affirms the court of appeals and holds that the Movriches nevertheless have the right to access and enjoy the flowage bed from their property pursuant to the public trust doctrine. ¶66 I agree with the majority's conclusion that the Movriches may access the flowage from their property; I too would affirm the court of appeals on this issue.2 I disagree, however, with the majority's conclusion that the Movriches are prohibited from erecting a pier. In defining the Lobermeiers' property rights in terms of fee absolute ownership, the majority ignores the most salient fact of this case: navigable water over the Lobermeiers' property. the presence of The presence of navigable water for over three quarters of a century alters the 2 See also deNava v. DNR, 140 Wis. 2d 213, 222, 409 N.W.2d 151 (Ct. App. 1987) ("Since the riparian owner has the exclusive right of access to and from navigable waters to his shore, the riparian owner has exclusive riparian rights."). 2 No. 2015AP583.rgb 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. Accordingly, I would affirm the court of appeals on this issue, although I would clarify that riparian rights are independent private property rights, which are not conferred under the public trust doctrine. ¶67 The majority opinion overlooks the interplay between private property rights, riparian rights and the public trust doctrine. Although separate and distinct, these competing rights intertwine and the majority opinion errs in its rigid approach toward applying Lobermeiers' property unprecedented holding submerged by water them to the The interests. that a fee cancels Movriches' majority simple riparian and adopts interest rights the in an land presumptively recognized under the common law for at least 140 years. The consequences of what 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.3 Such a dramatic change in the law should be the legislature's prerogative, not that of the four justices comprising the majority. ¶68 Ultimately, I conclude the Lobermeiers' title to a portion of the waterbed beneath the Sailor Creek Flowage is qualified by the existence of navigable water; the Movriches are entitled to erect and maintain a pier as part of the bundle of 3 See generally Wis. Dep't of Nat. Res., Wisconsin Lakes (2009), http://dnr.wi.gov/lakes/lakebook/wilakes2009bma.pdf. 3 No. rights they doctrine enjoy confers as riparian rights on owners; the public 2015AP583.rgb and the public to use the trust flowage. Accordingly, I respectfully concur in part and dissent in part. I ¶69 From its beginnings, Wisconsin access to the watercourses across the state. prioritized public This preference is richly embodied in the public trust doctrine, which finds roots in the Northwest Ordinance and materialized upon statehood through the adoption of Article IX, Section 1 of the Wisconsin Constitution.4 Under the public trust doctrine, the state holds the waters and beds of navigable lakes in trust for all of its 4 "The United States [S]upreme [C]ourt in Barney v. Keokuk (1876), 94 U.S. 324 . . . declared that the individual states have the right to determine for themselves the ownership of land under navigable waters." Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶79, 350 Wis. 2d 45, 833 N.W.2d 800 (quoting Muench v. Pub. Serv. Comm'n, 261 Wis. 501, 501, 53 N.W.2d 514, adhered to on reh'g, 261 Wis. 492, 55 N.W.2d 40 (1952)). Article IX, Section 1 states: "The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor." 4 No. citizens.5 Conversely, the public trust doctrine 2015AP583.rgb has been interpreted to "give[] riparian owners along navigable streams a qualified title in the stream beds to the center of the stream, while the state holds the navigable waters in trust for the public. In reality, the state effectively controls the land under navigable streams and rivers without actually owning it."6 Rock-Koshkonong Lake Dist. Wis. 2d 45, 833 N.W.2d 800. v. DNR, 2013 WI 74, ¶78, 350 "The rule is different with respect to the beds under streams[ ] in part because streams can change course, streams can become unnavigable over time, and navigable streams can be state ownership of impractical." very stream narrow beds and could shallow, be so problematic that and Id., ¶82 (footnote omitted). 5 The doctrine was "originally designed to protect commercial navigation," but its applicability has since "been expanded to safeguard the public's use of navigable waters for purely recreational and nonpecuniary purposes." State v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) (citing Muench, 261 Wis. 492); see also Diedrich v. N. W. U. Ry. Co., 42 Wis. 248 (1877); Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84 N.W. 855 (1901); Joseph D. Kearney & Thomas Merrill, The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central, 71 Univ. Chic. L. Rev. 799 (2004). "The legislature has the primary authority to administer the public trust for the protection of the public's rights, and to effectuate the purposes of the trust." Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19, 293 Wis. 2d 1, 717 N.W.2d 166 (citing Bleck, 114 Wis. at 465). 6 "It is said that the controlling distinction between a stream and a lake or pond is that in the one case the water has a natural motion,——a current,——while in the other the water is, in its natural state, substantially at rest, and this entirely irrespective of the size of the one or the other." Ne-Pee-Nauk Club v. Wilson, 96 Wis. 290, 295, 71 N.W. 661 (1897) (citation omitted). 5 No. ¶70 that 2015AP583.rgb The public trust doctrine applies to lakes and streams are "navigable in fact for any purpose." Wis. Stat. § 30.10 (providing that lakes and streams, if navigable in fact, are public waterways); see State v. Bleck, 114 Wis. 2d 454, 45960, 338 N.W.2d 492 (1983). declaration applying In the absence of a legislative specifically to a certain watercourse, "navigability is a question of fact." type of Klingeisen v. DNR, 163 Wis. 2d 921, 931, 472 N.W.2d 603 (Ct. App. 1991) (citing Angelo v. Railroad Comm'n, 194 Wis. 543, 552, 217 N.W. 570 (1928)) (holding that "[t]he public trust doctrine, to be effective, must also extend to public, artificial waters that are directly and inseparably connected with natural, navigable waters"). A finding of navigability in fact is a fairly low bar to meet and thousands of waterways in Wisconsin are considered navigable. Here, it Flowage is navigable. ¶71 is is not disputed that the Sailor Creek Majority op., ¶10, n.4. If a body of water is navigable in fact, then its use subject to the public trust doctrine, which permits all people to use the waters in aid of navigation and for hunting, fishing, and other recreational purposes. Diedrich v. Nw. Union Ry. Co., 42 Wis. 248, 264 (1877); Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84 N.W. 855 (1901); Diana Shooting Club v. Husting, 156 Wis. 261, 271-73, 145 N.W. 816 (1914). If a body of water is not navigable, "the public has no easement; and the riparian owner may, in general, put his estate under the water to any proper use he may please, not infringing upon the rights 6 No. 2015AP583.rgb of other riparian owners, and not violating any public law." Diedrich, 42 Wis. at 264. ¶72 The applicability of the public trust doctrine does not purport to give a riparian owner more rights than those of the public; indeed, the public trust doctrine does not confer riparian rights at all. Riparian rights exist under the common law as private property rights, independent of and subject to the public trust doctrine. the waters for purposes Indeed, the public's right to use recognized under the public trust doctrine may supersede a riparian owner's various rights of use. Bleck, 114 Wis. 2d at 467 ("[Riparian] rights, however, are still subject to the public's paramount right and interest in navigable waters."). Nevertheless, by virtue of owning property on the banks of navigable water, the public trust doctrine puts a riparian owner's exercise of otherwise public rights in a unique position. [A] riparian owner upon navigable water, whether or not he own the soil usque ad medium filum aquæ, and unless prohibited by local law, has a right to construct in shoal water, in front of his land, proper wharves or piers, in aid of navigation, and at his peril of obstructing navigation, through the water far enough to reach actually navigable water; this being held to further the public use of the water, to which the public title under the water is subordinate; and therefore to be, in the absence of prohibition, passively licensed by the public, and not a pourpresture. 7 No. 2015AP583.rgb Diedrich, 42 Wis. at 262 (1877).7 ¶73 If the Lobermeiers owned the entire waterbed beneath the flowage, the Movriches would not be able to maintain and erect a pier because they would enjoy no riparian rights under the common law. Mayer v. Grueber, 29 Wis. 2d 168, 176, 138 N.W.2d 197 (1965). Of course, the owner of land who creates an artificial body of water not originating from natural, navigable water may permit members of the public, as well as owners of land abutting the waterbody, to use the water but under those circumstances prerogative such of rights the of waterbed use arise owner solely rather riparian rights or the public trust doctrine. the common than from law See id. (citing Haase v. Kingston Coop. Creamery Ass'n, 212 Wis. 585, 588, 250 N.W. 444 (1933)). However, the Lobermeiers own only a portion of the the flowage waterbed, because navigable it waters fundamental originates of right public Sailor to place trust doctrine from the Creek, and a in pier applies the the the natural, public, to and Movriches water as have a riparian owners whose land abuts natural, navigable waters. ¶74 "Riparian owners are those who have title ownership of land on the bank of a body of water." to the ABKA Ltd. P'ship v. DNR, 2002 WI 106, ¶57, 255 Wis. 2d 486, 648 N.W.2d 854 7 "Usque ad medium filum aquæ" means "up to the middle of the stream." Usque Ad Filum Aquæ, Black's Law Dictionary (1st ed. 1891). A "pourpresture," also spelled "purpresture," is "[a]n inclsoure by a private party of a part of that which belongs to and ought to be open and free to the public at large." Purpresture, Black's Law Dictionary (1st ed. 1891). 8 No. (citing Ellingsworth v. Swiggum, 195 2015AP583.rgb Wis. 2d 142, 148, 536 N.W.2d 112 (Ct. App. 1995)) (emphasis added); see also Diedrich, 42 Wis. at 262 (1877) ("Riparian rights proper are held to rest upon title to the bank of the water, and not upon title to the soil under the water."); Doemel v. Jantz, 180 Wis. 225, 230, 193 N.W. 393 (1923); N.W.2d 197 Mayer (1965) v. Grueber, ("Riparian land 29 is Wis. 2d 168, land so 173, situated 138 with respect to a body of water that, because of such location, the possessor of the land is entitled to the benefits incident to the use of the water." (Citations omitted.)); Stoesser v. Shore Drive P'ship, 172 Wis. 2d 660, 665, 494 N.W.2d 204 (citing 78 Am. Jur. 2d Waters § 260 (1975)). (1993) Riparian rights "are not dependent upon the ownership of the soil under the water, but upon his title to the banks." Doemel, 180 Wis. at 230 (first citing Diedrich, 42 Wis. at 248; then citing Delaplaine v. C.& N.W. Ry. Co., 42 Wis. 214 (1877); then citing Green Bay, etc., Co. v. Kaukauna Water Power Co., 90 Wis. 370 (1895); then citing State ex rel. Wausau St. Ry. Co. v. Bancroft, 148 Wis. 124, 134 N.W. 330 (1912)). ¶75 A riparian owner is presumptively entitled to certain rights, including: the rights of the owner of lands upon water to maintain his adjacency to it, and to profit by this advantage, and otherwise as a right to preserve and improve the connection of his property with the water. Those rights are not common to the citizens at large, but exist as incidents to the right of soil itself contiguous to and attingent on the water. In such ownership they have their origin, and not out of the ownership of the bed, and they are the same whether the riparian owner owns the soil under the water or not. 9 No. Doemel, 180 Wis. at 230-31. right to build piers, 2015AP583.rgb "The riparian owner also has the harbors, wharves, booms, and similar structures, in aid of navigation, and such right is also one which is incident to the ownership of the upland." Id. at 231; Hicks ex rel. Askew v. Smith, 109 Wis. 532, 540, 85 N.W. 512 (1901) ("the right to erect such a pier is simply an incident of riparian ownership"). For 140 years, title to the waterbed has been entirely irrelevant to determining riparian ownership under Wisconsin law. Doemel, 180 Wis. at 230. And the law presumes that riparian owners may construct a pier in aid of navigation. ¶76 As a preliminary matter, the law presumes the Movriches are riparian owners because they own property that abuts the banks of the Sailor Creek Flowage, a navigable body of water. follow Nevertheless, as land." a matter of "[r]iparian course the rights do ownership not of necessarily the adjacent Mayer v. Grueber, 29 Wis. 2d 168, 175, 138 N.W.2d 197 (1965) (citing Allen v. Weber, 80 Wis. 531, 536, 50 N.W. 514 (1891)). "No property owner's riparian rights are absolute." Rock-Koshkonong owner may be Lake Dist., riparian in 350 Wis. 2d 45, nature, his ¶110. ability While to exercise riparian rights may be qualified by a number of factors. 29 Wis. 2d at 175 (citing Allen, 80 an Mayer, Wis. at 536). As determinative here, these factors include the classification of the waterbody contiguous with which coupled with the Movriches' the private upland property ownership of is that waterbody's bed, as well as the language in the Movriches' deed. 10 No. ¶77 The Movriches are unquestionably 2015AP583.rgb riparian owners because their property lies on the banks of the flowage. The legal description of their property extends "to the shoreline" of the flowage. Yet, the majority holds that the Movriches are not contrary riparians, to every definition of riparian ownership existing in this state's pertinent precedent, dating back to 1877. See supra ¶10. Relying on Mayer, the majority points out that "when Movriches took title to their land, the legal description on their deed made no reference to riparian rights." silence Majority op., ¶53. on riparian riparian ownership rights or The majority equates the deed's to riparian the nonexistence rights. This of either conclusion is patently incorrect. ¶78 It is true "that one who acquires land abutting a stream or body of water may acquire no more than is conveyed by his deed." Mayer, 29 Wis. 2d at 174. It is also true, however, that an owner of waterfront property possesses certain riparian rights under the common law and the common law provides that "a transfer of the property without any reference whatsoever to [riparian] rights automatically conveys and includes them." Doemel v. Jantz, 180 Wis. 225, 230, 193 N.W. 393 (1923) (citing Illinois Cent. Stoesser v. R. Shore Co. v. Drive Illinois, P'ship, 172 146 U.S. 387 Wis. 2d 660, (1892)); 667, 494 N.W.2d 204 (1993) (citations omitted); Mayer, 29 Wis. 2d at 175. The only way to eliminate riparian rights tied to the property under the common law is "by the clear language in the deed." Mayer, 29 Wis. 2d at 174. In 11 other words, unless the deed No. expressly disavows navigable water riparian retains rights, property presumptive 2015AP583.rgb adjacent riparian to rights, notwithstanding the conveyance documents' silence on this issue. ¶79 mention The majority acknowledges the Movriches' deed does not rights.8 riparian Therefore, the riparian rights attached to the property were conveyed to the Movriches under common law when they purchased their waterfront property. The deed does not need to expressly mention the status of riparian ownership because the presumption of riparian rights exists by operation of law unless the deed expressly excludes riparian rights. ¶80 the Wisconsin qualifies a riparian owner's rights based on classification of the property is contiguous. waterbody to which the riparian In the case of a natural body of water, "one who acquires land abutting a stream or body of water may acquire no more than is conveyed by his deed," which, as already discussed, means that a deed that expressly severs riparian rights will unequivocally strip the owner of those rights. at 174. case in Id. In the case of an artificial body of water, as was the Mayer, ownership of existence of riparian rights. the waterbed may qualify the Id. 8 The majority suggests the possibility of a different outcome if the "Movriches had purchased their property from Lobermeiers." Majority op., ¶52. However, even if the Movriches had acquired their property from the Lobermeiers, if the deed were silent on riparian rights, as it actually is in this case, riparian rights are nevertheless conveyed under the common law. 12 No. ¶81 In Mayer, we held that "the purchaser 2015AP583.rgb of property abutting an artificial lake acquires no rights as a riparian owner by virtue of the land acquisition alone." Id. at 179. Rather, "[u]nless the vendor conveys the right to use the lake, the purchaser is precluded from either the right of access or use." Id. ¶82 The majority's characterization of the flowage as a "man-made" body of water similar to the property in Mayer is incorrect.9 The flowage was an artificial condition created by a dam, which over time became a natural condition. Regardless, "man-made" lakes and streams are by law artificial waterbodies. Under Wis. Stat. § 30.19(1b)(a), an artificial waterbody is "a body of water that does not have a history of being a lake or stream or of being part of a lake or stream." In Mayer, gravel the artificial excavations." 29 lake was "formed Wis. 2d at 170. (Emphasis added.) as the Thus, result it had of no history of being a lake before seepage filled up the excavation site and created a lake. Id. In contrast, a flowage arises 9 "The artificial condition originally created by the dam became by lapse of time a natural condition." Haase v. Kingston Coop. Creamery Ass'n, 212 Wis. 585, 250 N.W. 444 (1933) (citing Johnson v. Eimerman, 140 Wis. 327, 330, 122 N.W. 775 (1909)); see also Alvin E. Evans, Riparian Rights in Artificial Lakes and Streams, 16 Mo. L. Rev. 93, 108 n.63 (1951) (citing Minehan v. Murphy, 149 Wis. 14, 134 N.W. 1130 (1912)). 13 No. from the damming of a stream already in existence.10 2015AP583.rgb Here, the Sailor Creek Flowage was created and is currently maintained by the damming of Sailor Creek, a natural, navigable stream, by the Town of Fifield in 1941 (a fact both parties and the majority concede). Majority op., ¶9. As the flowage has a history of being part of Sailor Creek, it is not an artificial waterbody and Mayer does not apply. ¶83 In a case where a dam overflowed previously dry lands owned in fee, this court held that "the public and the riparian owners enjoy the same rights in and upon such artificial waters," regardless of the fact that the particular body of water on which artificially those created rights by the are dam. subsequently Haase v. exercised Kingston were Coop. Creamery Ass'n., 212 Wis. 585, 587, 250 N.W 444 (1933) (emphasis added). This recognized concept, over 100 now years discarded ago in by Johnson the majority, was v. Eimerman, 140 Wis. 327, 330, 122 N.W. 775 (1909) ("The artificial condition originally created by the dam became by lapse of time a natural condition.") reiterated: More recently, the "well settled" principle was "If the volume or expanse of navigable waters is increased artificially, the public right to use the water is increased correspondingly." Klingeisen v. DNR, 163 Wis. 2d 921, 10 A "flowage" is defined as "[t]he natural movement of water from a dominant estate to a servient estate." Flowage, Black's Law Dictionary (10th ed. 2014); see also Flowage Easement, Black's Law Dictionary (10th ed. 2014) ("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"). 14 No. 927, 472 N.W.2d 603 (Ct. App. 1991). 2015AP583.rgb In that case, the court also recognized that title to the waterbed underlying navigable waters "is entirely subordinated to and consistent with the rights of the state to secure and preserve to the people the full enjoyment of navigability and the rights incident thereto." Id. at 928 (citing Diana Shooting Club v. Husting, 156 Wis. 269, 271, 145 N.W. 816 (1914)). ¶84 Subject to the public trust doctrine, "Wisconsin has . . . recognized the existence of certain common law rights that are incidents of riparian ownership of property adjacent to a body of water." R.W. Docks & Slips v. DNR, 244 Wis. 2d 497, 511, 628 N.W.2d 781 (2001) (citing Bleck, 114 Wis. 2d at 466). Such rights include "the right, now conditioned by statute, to construct a pier or similar structure in aid of navigation." Id. (citing Cassidy v. DNR, 132 Wis. 2d 153, 159, 390 N.W.2d 81 (Ct. App. 1986). "nothing in waterbody, Subject to a few exceptions not relevant here, [Wis. as hydrologically Stat. ch. defined in connected to 30] s. a applies to 30.19(1b)(a), natural navigable an artificial that is waterway not and that does not discharge into a natural navigable waterway except as a result of storm events." Sailor Creek Flowage is Wis. Stat. § 30.053. hydrologically Creek, it is not an artificial waterbody. connected to As the Sailor While Wis. Stat. ch. 30 was enacted after the creation of the flowage, "[t]he statute did not claim to alter the common law" and "[i]t is fundamental that a statute should be construed in harmony with the common law . . . unless a different construction is plainly expressed." 15 No. 2015AP583.rgb Klingeisen v. DNR, 163 Wis. 2d 921, 930, 472 N.W.2d 603 (Ct. App. 1991). ¶85 In attempting to distinguish the flowage from other natural waterbodies subject to Wis. Stat. ch. 30, the majority mistakenly limits the holding in Doemel v. Jantz to waterbodies that are public, navigable, and natural. Assuming that "[Lake Winnebago] is not man-made" and that "as far as we can tell, no portion of Lake Winnebago's waterbed is privately owned," the majority holds op., ¶43. that Doemel is not dispositive. Majority Setting aside the fact that Doemel is silent on the nature of Lake Winnebago's hydrological makeup or the ownership of Lake Winnebago's lakebed, Doemel controls the outcome here because the flowage in this case is entirely analogous to Lake Winnebago for the purpose of determining whether the Movriches should be able to install a pier. Like Lake Winnebago, Sailor Creek Flowage is navigable under the public trust doctrine and therefore it is public. And while its existence depended upon human intervention, it is hydrologically connected to a natural navigable waterway (i.e., Sailor Creek) and therefore it is not an artificial waterbody under Wis. Stat. § 30.19(1b)(a). therefore, does not extinguish the Movriches' Mayer, common law riparian rights. ¶86 The next question is whether the Lobermeiers' private property rights in the waterbed trump the Movriches' riparian rights, preventing the Movriches from maintaining a pier anchored in the waterbed adjacent to the Movriches' shoreline 16 No. property. 2015AP583.rgb The right of a riparian to maintain a pier is subject to the following statutory limitations: 1. "A wharf or pier which interferes with public rights in navigable waters constitutes an unlawful obstruction of navigable waters unless the wharf or pier is authorized under a permit issued under s. 30.12 or unless other authorization provided." for the wharf or pier is expressly Wis. Stat. 30.13(4)(a) (emphasis added). 2. "A wharf or pier which interferes with rights of other riparian owners constitutes an unlawful obstruction of navigable waters unless the wharf or pier is authorized under a permit issued under s. 30.12 or unless other authorization provided." for the wharf or pier is expressly Wis. Stat. 30.13(4)(b) (emphasis added). Notably, the right to maintain a pier is in no way statutorily limited by the rights of non-riparian owners.11 ¶87 The nature of the flowage bed's title is also distinguishable from that of the private lakebed in Mayer, which was entirely owned by a single owner. In Mayer, this court recognized that in the case of an artificial waterbody, like the artificial lake in Mayer, "the title to the land remains in the owner and does not become vested in the state." 176 (citing Haase v. Kingston 11 Coop. Creamery 29 Wis. 2d at Ass'n, 212 Wisconsin Stat. § 30.13 provides limited means by which non-riparian owners may maintain a pier. This section mainly considers the rights of easement holders and is not relevant here. 17 No. Wis. 585, 588, 250 N.W. 444 (1933)). 2015AP583.rgb Mayer's holding is limited to "[a]n artificial lake located wholly on the property of a single owner." flowage bed Id. remains Here, although title to a portion of the with the Lobermeiers, their title is qualified because of the presence of navigable water over the bed. ¶88 This principle arises from Minehan v. Murphy, 149 Wis. 14, 134 N.W. 1130 (1912), where the plaintiff brought an action for ejectment when the defendant adversely occupied the bed of an artificially enhanced stream by crossing over from his side of the stream's thread and onto the plaintiff's submerged property.12 The stream in question had previously been non- navigable, but upon damming of the mouth and flooding of the privately-owned former navigable, that such uplands "the the former stream private was title rendered had become changed to the same character of qualified title as that of riparian general." proprietors to the beds of Id. at 16 (emphasis added). navigable rivers in Likewise, damming a stream and creating a flowage, which in character and shape may resemble a lake, does not transfer ownership of the bed to be held in trust to the state. Rather, like that of a streambed, the title of the flowage bed is privately-held, but qualified by the presence of navigable waters. See e.g., Ne-Pee-Nauk Club v. Wilson, 96 Wis. 290, 295, 71 N.W. 661 (1897); Rock-Koshkonong Lake Dist., 350 Wis. 2d 45, ¶78. 12 The court does not elucidate the exact details of the defendant's impermissible occupancy. 18 No. ¶89 2015AP583.rgb The plaintiff's action for ejectment was ultimately successful in Minehan, based in part upon her status as a riparian whose title to the bed of the navigable water bounding the banks of her land was "incidental to her title to the bank." Minehan, 149 Wis. at 14. The court's articulation of the rule that title to private property submerged by navigable waters becomes qualified in the same sense as the qualified title of riparians to the instructive here. beds of navigable waters, is particularly Private title enjoys no heightened status vis-à-vis riparian title; rather, "the former private title had become changed to the same character of qualified title as that of riparian general." proprietors Id. at 16. to the beds of navigable rivers in Unlike the riparian plaintiff in Minehan, who not only owned the waterbed, but also had title to the upland property along the banks, the Lobermeiers merely own the flowage bed. The crux of the issue is whether the Lobermeiers may exclude the Movriches from erecting and maintaining a pier by virtue of owning only a portion of the flowage bed. ¶90 Because the Lobermeiers do not own property on the bank of a waterbody, they are not riparian owners. And while they retain ownership of a portion of the flowage bed in fee simple, that title is qualified by the presence of navigable waters. The majority wholly relies upon the Lobermeiers' ownership of the flowage bed in fee simple absolute to reach its conclusion that the Movriches are not entitled to erect and maintain a pier. Majority op., ¶¶17-21, 32 n.9. The majority cites a string of cases that do not contemplate the presence of 19 No. navigable water over the land. or in any reasoning other or Id. jurisdiction otherwise 2015AP583.rgb No authority in Wisconsin has restricted adopted the placement of majority's a pier on navigable waters by a riparian owner in favor of non-riparian, fee simple ownership of the waterbed. waters qualifies the Lobermeiers' The presence of navigable title to the flowage bed subject to the public trust doctrine and the rights of riparian owners along the banks of the flowage. As riparian owners, the Movriches are entitled to exercise riparian rights to access the surface waters and to have their pier rest on the flowage bed. ¶91 "well Over one hundred years ago, this court expounded the settled" principle that "if the volume or expanse of navigable waters be increased artificially, the public right is correspondingly increased." Village of Pewaukee v. Savoy, 103 Wis. 271, 277, 79 N.W. 436 (1899). Specifically, the court in Savoy expanded the state's ownership rights in natural waterbeds to artificially submerged lands maintained for more than 20 years at an artificially high water level, concluding that "an artificial condition, by lapse of time . . . becomes the natural condition." Id. at 275. Three decades later, the court determined it was unnecessary to vest title to the artificially submerged land in the state in order to protect the public's rights under the public trust doctrine. Haase, 212 Wis. at 587. Nevertheless, the court in Haase reiterated the rule of law the majority should have applied here: "It is true that, where the waters of a natural, navigable lake are artificially raised, the 20 No. 2015AP583.rgb public and the riparian owners enjoy the same rights in and upon such artificial waters." ¶92 Id. The Sailor Creek Flowage was created 76 years ago and has been maintained for more than 50 years beyond the 20-year timeframe deemed sufficient to qualify the fee simple rights enjoyed by the owners of the underlying lakebed. created artificially by construction of a The flowage, dam, submerged privately owned land with the permission of the owner. time, during the three quarters of a century this land Over has remained submerged, both riparian rights as well as public trust rights extended to this artificial expansion of Sailor Creek. While the creation of the flowage did not transfer any property rights from the Lobermeiers to either the state or the Movriches, it subordinated the Lobermeiers' property rights to riparian rights under the common law as well as public rights under the public trust doctrine. three distinct rights perhaps While this reconciliation of leaves the Lobermeiers with property of limited value, this construction of the law takes nothing from the Lobermeiers and preserves what has always been, as reflected in the $400 assessed value of the flowage bed owned by the Lobermeiers. In contrast, the majority strips the Movriches of their riparian rights and reallocates them to the Lobermeiers. ¶93 Unfortunately, the majority's opinion diminishes not only the value of the Movriches' property, but also potentially guts the values of all properties abutting flowages throughout Wisconsin. The breadth of the majority's opinion calls into 21 No. 2015AP583.rgb question the terms of deeds to such waterfront properties, the validity of prior interests. conveyances, and the extent of ownership The majority's transfiguration of the common law governing riparian rights disturbs the reliance on access that induced purchases of waterfront property in Wisconsin for over a century. II ¶94 order By to eschewing elevate fee decades simple unattached to shoreline effectively extinguishes controlling property property the waterfront property owners of property rights precedent in a ownership, rights of in waterbed, the court thousands of along flowages, while jeopardizing the property rights of waterfront property owners on all bodies of water in Wisconsin. A change in the law of this magnitude should come from the legislature, not this court. Accordingly, I respectfully dissent 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 and concur only in that part of the majority opinion that preserves the public's right to access the flowage waters. ¶95 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion. ¶96 I am also authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this opinion except for Part II. 22 No. 1 2015AP583.rgb
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