Waterfront Property Buyers Beware: Buying the Land Doesn’t Guarantee Rights to the Water

In a previous post, we discussed the Court of Appeals’ decision on Movrich v. Lobermeier. As noted, that decision was appealed and heard before the Wisconsin Supreme Court, which recently overturned many of the holdings of the court of appeals. This new opinion is instructive and should cause shoreline property owners and prospective shoreline property owners to pause because of the impact on their rights.

The Movriches purchased a lot from the Lobermeiers but it only described the lot and not the riverbed. The Lobermeiers retained title to the submerged lands. Prior to a personal dispute between the parties, the Lobermeiers allowed the Movriches to install a dock and use the area above the riverbed for recreational use. After the personal dispute, the Lobermeiers no longer wanted to allow the Movriches to install a dock or use the submerged area, the Movriches sued seeking a declaration of their rights to install a dock that started on their land but then would be installed over the Lobermeiers’ submerged lands. They also sought a declaration that they were permitted to enter the waterway directly from their property.

When weighing three paramount issues of property rights: riparian rights, public trust doctrine, and private property rights, the Court engaged in an expansive discussion on the history of the three principles and how they applied to the instant case. Riparian rights are rights conferred on landowners who own property abutting a waterway that allow an owner to use the water, including the right to construct a dock or pier. The public trust doctrine provides that the State of Wisconsin holds ownership of all navigable waterways in trust for the benefit of its citizens to use for navigation and recreation. Private property rights are the rights of an owner to use the property how he or she sees fit and the right to exclude others from using his or her land.

The Court examined the interrelation of these three concepts by identifying three distinct issues. The first is whether the Movriches’ riparian rights, when viewed in connection with the public trust doctrine, overcome the Lobermeiers’ private property rights. The Court found that it did not. The Court clarified that although there is a qualified ownership in riparian rights for landowners adjacent to a waterway, this interest can be separated. The Court stated that there is no presumption of riparian rights when a waterway is man-made. Furthermore, the public trust doctrine does not confer special rights to adjacent landowners. The Court affirmed that owning property in fee simple is “the highest tenure known to the law.” Although the public trust doctrine and riparian rights are important, they do not cancel private ownership rights, and the Lobermeiers had the right to exclude the Movriches from constructing a pier on their private property. The Movriches would be trespassing if they constructed and maintained a pier on the waterbed without the Lobermeiers’ permission.

The second issue the Court addressed is whether the public trust doctrine includes the right to install a pier over privately owned submerged lands. The Court held that it did not. The public trust doctrine does not confer any special private property rights to adjacent landowners, including the right to construct a pier. Under the public trust doctrine, all members of the public are equal and have equal rights to navigation and recreational use to the waterways.

Third, the Court addressed whether the Movriches, who own the land adjacent to the waterway, have a right of access from their land over the Lobermeiers’ private property. The Court states that the Movriches have the right to access the waters from their property, as long as it is consistent with the public trust doctrine. The Movriches do not need to go to a public access point to use the water for recreational purposes, like swimming, fishing, or boating.

Before deciding to purchase waterfront property, potential buyers should do their research and consider whether the waterway was man-made or naturally occurring. Second, working with a lawyer to ensure that the title work is done correctly and the legal description of the property on the deed includes riparian rights and submerged lands could help ensure all the rights really do transfer to the buyer.

If you have any questions regarding this article, please contact an attorney at Mallery & Zimmerman.