Fishing

Two anglers ply the Chippewa Flowage on a sunny, warm Sunday, May 1.

Terrell Boettcher
TownNews.com Content Exchange

A recent Wisconsin Supreme Court ruling may restrict the rights of lakefront owners on flowages to place a dock or pier off their own property.

In the case of Movrich versus Lobermeier, Town of Fifield residents Jerome and Gail Movrich argued that despite David and Diane Lobermeier’s ownership of a piece of the lakebed under Sailor Creek Flowage, the Movriches still had a right to place a pier off their property.

Under a ruling passed Jan. 23, the Supreme Court determined the rights of the lakebed property owner supersedes the right of the shoreline property owner to place a dock in publicly owned waters.

The court states that despite the fact the water of the Sailor Creek Flowage is held in trust for the people of the state, the land beneath the water is the property of David Lobermeier, and therefore, anything placed on the water bottom without permission would be considered trespassing. It also declares that the space above the flowage bottom (the water and air above) can only be used for temporary recreational purposes. This would also prohibit the placement of a floating dock. In effect, it removes riparian rights from flowage shoreline property owners, unless use is allowed by the lakebed owner.

The case involved the complex interplay between three separate points of law: public trust doctrine, riparian rights, and basic property rights.

Wisconsin law has also long recognized the rights of lakefront property owners to access and use the water and shoreline abutting their properties — known as riparian rights.

Wisconsin’s waters fall under the public trust doctrine, which protects the public rights of everyone to access and utilize navigable waters. While piers and docks are technically an impediment to navigable waters, they have historically been an exception to the rule, provided they are installed in compliance with DNR regulation.

In Wisconsin, many of the man-made flowages have pieces of private property beneath the waters; remnants from before rivers were dammed and flowages formed. However, up until now, the riparian rights of lakefront owners have always allowed for the placement of docks off their shoreline.

This case first entered the court system in 2013, when the Lobermeiers brought action against the owner of one of the neighboring properties on the Sailor Creek Flowage, contesting their right to place a pier off their property. The Movriches (of which Gail Movrich is the sibling to David Lobermeier) then also went to court in an attempt to clarify whether they had the right to install a pier off their property. The two cases were consolidated and heard in Price County circuit court in 2015, where the court ruled in favor of the Movriches.

The case then went to the court of appeals in 2016, where the local ruling was upheld.

The court of appeals published opinion concludes with this summary: “...it is without question that riparian and property rights are subordinate to the public trust doctrine. By virtue of their riparian property ownership, the Movriches — 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 that the Movriches obtain greater benefits under the public trust doctrine than the general public, and it likewise does not transfer the Lobermeiers’ interests in the waterbed property to the Movriches. Rather, it simply means that based on present facts, the Movriches, by virtue of owning riparian property, may directly access the Flowage and may erect, maintain, and use a pier or dock extending from their property…”

Lobermeiers then appealed their case at the Wisconsin Supreme Court level, where the decision of the court of appeals was confirmed in part and changed in part.

The Supreme Court confirmed the court of appeals’ decision that the Movriches have the right to use the flowage as any member of the public, and can access and exit the flowage directly from their property (this was originally contested by the Lobermeiers, who wanted to Movriches to only access the water through the public boat landing). It reversed the court of appeals’ decision on the Movriches’ riparian rights.

According to the Supreme Court ruling, “In Wisconsin, there is a presumption that owning property abutting a natural body of water confers certain riparian rights. 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.”

The panel of justices involved in the Supreme Court ruling were Chief Justice Patience Roggensack, Shirley Abrahamson, Ann Walsh Bradley, Annette Kingsland Ziegler, Michael Gableman, Rebecca Grassl Bradley, and Daniel Kelly. Three of the justices — Walsh Bradley, Abrahamson, and Grassl Bradley — dissented in part with the decision of the majority in regards to riparian rights.

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An opinion published by Grassl Bradley states, “Such a dramatic change in the law should be the legislature’s prerogative, not that of the four justices comprising the majority.”

Grassl Bradley also noted that the ruling may be ignoring the presence of navigable water over the Lobermeiers’ property, saying, “The presence of navigable water for over three quarters of a century alters the 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.”

Grassl Bradley went on to state that Sailor Creek Flowage has been in existence for 76 years, and the land was flooded with the permission of the owners. She stated that, in essence, this Supreme Court ruling reverses 75 years of legal precedent to favor the flowage lakebed owner.

Grassl Bradley also documented concerns that this ruling may diminish the value of all flowage properties within the state.

According to information available on the DNR website, Wisconsin has an estimated 260 flowages and man-made reservoirs — 15 of which are in Price County.

In the closing paragraphs of her statement, Grassl Bradley concluded, “By eschewing decades of controlling precedent in order to elevate fee simple property rights in a waterbed, unattached to shoreline property ownership, the court effectively extinguishes the property rights of thousands of waterfront property owners along flowages, while jeopardizing the property rights of waterfront property owners on all bodies of water in Wisconsin.”

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This article originally ran on apg-wi.com.