Wisconsin Supreme Court Prepares to Weigh Private Rights, Riparian Rights, and the Public Trust Doctrine

On September 20th, the Wisconsin Supreme Court will hear oral arguments in Movrich v. Lobermeier, 372 Wis. 2d 724, 889, N.W.2d 454, 2016 WI App 90 (2016). This case puts at odds two revered values: the public trust doctrine and the right of alienation by private property owners. The Wisconsin Court of Appeals found that the public trust doctrine prevailed over the private property owner’s rights.

Movrich and Lobermeier are siblings. The Lobermeiers owned land on the Sailor Creek Flowage. The property was adjacent to the waterway and it had a dock that was used for recreational purposes. The Lobermeiers later decided to sell the unsubmerged land to the Movriches, but retained title to the riverbed. The two families shared the recreational use of the dock until 2011 or 2012, when an unrelated family dispute arose. The Lobermeiers asserted the Movriches, and the other landowners whose unsubmerged lands were adjacent to the Lobermeiers’ submerged land, did not have the right to place a dock over the submerged land owned by the Lobermeiers. They demanded the Movriches and the other property owners cease use of the docks and the water for recreational purposes.

After this demand, the Movriches sought a declaratory judgment for their right to install a dock, under the public trust doctrine, and also sought an injunction against the Lobermeiers from entering their property and interfering with their property rights.

Wisconsin’s Constitution creates the public trust doctrine in the state of Wisconsin. The doctrine declares that all naturally created waterways are public resources owned by Wisconsin citizens. While private title owners exist, the State of Wisconsin owns the land under lakes; however, different rules apply for rivers. In Wisconsin, the adjacent property owner has ownership to the land under the river, to the center of the waterway. In the event the river changes course, the adjacent landowner has title to the highwater mark. However, the water, the river, and the riverbed is held in trust for the public use.

Those who own property next to rivers acquire rights, known as riparian rights, to use the shoreline and have reasonable use of the water, by nature of owning property next to a navigable waterway. Part of the reasonable use includes recreational use of the water and the ability to construct a small dock that does not interfere with the public’s use of a navigable waterway. The Lobermeiers argued that by owning the riverbed, they had the power to alienate the adjacent property owners from constructing docks and using the riverbed. The Wisconsin Court of Appeals rejected this argument citing case law that says riparian rights are not based ownership of the riverbeds, but on the ownership of the riverbanks.

On at least one occasion, the courts have treated man-made waterways differently than naturally occurring waterways. Mayer v. Gruber, 29 Wis.2d 168, 138 N.W.2d 197 (1965). In Mayer, one entity owned the entire lakebed. The Wisconsin Court of Appeals said the instant case is distinguishable from Mayer because multiple people shared ownership of the riverbed. The Court of Appeals also held the Lobermeiers’ interest in the property is subordinate to the State’s interest in the public’s right and use of the water pursuant to the public trust doctrine.

The Lobermeiers petitioned for review of the Wisconsin Court of Appeals’ decision and the Wisconsin Supreme Court granted it. The Wisconsin Supreme Court will review whether the public trust doctrine overrides a private owner’s right to restrict access other landowners’ right to use and access the water, and if it does, whether the public trust doctrine permits the right of an installation of a dock over the portion of the riverbed that is privately owned.

Owners with waterfront property should take note to see how the Wisconsin Supreme Court rules on this case.

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