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Movrich v. Lobermeier

Court of Appeals of Wisconsin, District III

November 29, 2016

Jerome Movrich and Gail Movrich, Plaintiffs-Respondents,
v.
David J. Lobermeier and Diane Lobermeier, Defendants-Appellants.

         APPEAL from a judgment of the circuit court for Price County, Cir. Ct. No. 13CV22 13CV78 PATRICK J. MADDEN, Judge. Affirmed.

          Before Curley, P. J., Kessler and Brash, JJ.

          CURLEY, P.J.

         ¶1 David J. Lobermeier and Diane Lobermeier (collectively, the Lobermeiers) appeal from a judgment entered in favor of Jerome Movrich and Gail Movrich (collectively, the Movriches), after a court trial, regarding the Movriches' right to install a dock and to access the Sailor Creek Flowage from their shoreline property. The Lobermeiers argue that the trial court erred in concluding the public trust doctrine allows the Movriches to install a dock extending from their property into the Sailor Creek Flowage and resting on the waterbed, and to access the Sailor Creek Flowage directly from their property.[1]To the contrary, the Lobermeiers argue, because they own the bed of the Sailor Creek Flowage abutting the Movriches' waterfront property, they may prohibit the Movriches from taking such actions. The Lobermeiers also request that we withdraw the trial court's order restraining and prohibiting them from coming upon the Movriches' property, as well as that we reverse the trial court's judgment that costs and fees be taxed against them and instead find that such costs and fees should be taxed against the Movriches. For the following reasons, we agree with the trial court and affirm. Background

         ¶2 This appeal concerns the respective rights of owners of waterfront and waterbed property on the Sailor Creek Flowage in Price County, Wisconsin (hereinafter, the Flowage). Due to the nature of the case, we begin with a brief review of the Flowage's history.

         ¶3 According to the Wisconsin Department of Natural Resources (DNR), the Flowage is presently "a 201 acre lake located in Price County ... [with] a maximum depth of 8 feet, " and "[v]isitors have access to the lake from a public boat landing.[2] Prior to the Flowage's existence, however, there was simply a Sailor Creek.

         ¶4 In or around 1941, the Town of Fifield, where the Flowage is located, proposed to construct, operate, and maintain a dam across Sailor Creek. A Deed of Flowage Rights executed on September 13, 1941, states that "certain lands bordering upon [Sailor Creek] and its tributaries will be overflowed by reason of such maintenance and operation of said dam, " and Margaret Hussmann, the landowner, granted and conveyed to the Town of Fifield, and its assigns and successors, "the perpetual right, privilege and easement to submerge, flood and/or raise the ground water elevation of such portion of the grantor's real estate hereinafter described as may be overflowed or affected by raising such water level, directly or indirectly, through the maintenance and operation of said dam ...." The deed does not purport to convey any interest in the land itself, and over time, the interest in the land she retained was transferred to various parties. Through a chain of title, interest in some of the land Ms. Hussmann initially retained eventually became part of the Sailor Creek Flowage Subdivision, where the Movriches' property is located, while another portion of that land was ultimately transferred to the Lobermeiers. This brings us to the course of events precipitating this appeal.

         ¶5 David Lobermeier and Gail Movrich are brother and sister. In 2006, the Movriches purchased waterfront property abutting the Flowage, and a dock extending from the property into the Flowage was present at that time. The Lobermeiers also own property on the Flowage; however, the Lobermeiers' property is an area of submerged land beneath the Flowage's waters. Although the Lobermeiers at one point also owned dry upland property, they have since sold that portion and now own, as relevant to this matter, only the submerged property.[3] The Lobermeiers own only a small portion of the Flowage waterbed, and part of their submerged property abuts the Movriches' upland waterfront property.

         ¶6 Gail Movrich testified at trial that upon acquiring their property, they made use of the Flowage in various ways, including fishing, mooring their boat to a dock, wading in the water, and kayaking, and they also allowed David Lobermeier and his friends and family to use the dock for fishing and for other purposes, such as mooring the Lobermeiers' boat. At trial, the Movriches offered excerpts of David Lobermeier's deposition testimony that confirmed the Movriches had allowed him to use their dock and that he had moored his boat there.

         ¶7 For a number of years, the Movriches and Lobermeiers got along well and there was no dispute concerning the Movriches' dock or access to the Flowage from their property. However, in approximately 2011 or 2012, the Movriches and Lobermeiers had a falling out-the parties do not provide any details other than to indicate it was unrelated to the Flowage-and at that time, the Lobermeiers began asserting that they, and they alone, have exclusive rights to the waterbed at issue. Thereafter, they demanded that the Movriches and other neighboring property owners remove their docks and cease use of the waterbed.[4]

         ¶8 Ultimately, the Movriches filed a lawsuit against the Lobermeiers seeking a declaration of their riparian rights incident to their property ownership and their ability to access the Flowage and to install a pier or dock, as well as an injunction against the Lobermeiers preventing them from coming upon the Movriches' property and from interfering with the Movriches' rights. The trial court consolidated the Movriches' action with the previously pending lawsuit David Lobermeier had filed against other Flowage upland property owners, [5] and after a court trial, the trial court issued a decision and order explaining that the public trust doctrine allows the Movriches to access the Flowage and to install a pier or dock.[6] The court thereafter entered judgment against the Lobermeiers, and this appeal follows.

         ¶9 Additional facts will be developed below as necessary.

         Analysis

         ¶10 On appeal, the Lobermeiers primarily challenge the trial court's conclusion that the public trust doctrine allows the Movriches to access the Flowage directly from their property and to erect, maintain, and use a dock or pier anchored on their real estate and that extends over the Flowage's waters and is supported either by flotation devices or posts resting on the Flowage bed. For the following reasons, we agree that the public trust doctrine permits the Movriches to access the Flowage from their property and to erect, maintain, and use a dock as set forth in the trial court's order.[7]

         ¶11 Our review requires a combination of discretionary and de novo review because we review both the trial court's factual findings and the trial court's application of law. We will not set aside a trial court's factual findings unless the findings are clearly erroneous. See WIS. STAT. § 805.17(2) (2013-14);[8] see also M.Q. v. Z.Q., 152 Wis.2d 701, 708, 449 N.W.2d 75. When reviewing the trial court's factual findings, we will "search the record for evidence to support findings reached by the trial court, not for evidence to support findings the trial court could have reached but did not." See Noble v. Noble, 2005 WI.App. 227, ¶15, 287 Wis.2d 699, 706 N.W.2d 166. We assume the trial court made the findings of fact necessary to support its decision, and we accept any such implicit findings if supported by the record. See Town of Avon v. Oliver, 2002 WI.App. 97, ¶23, 253 Wis.2d 647, 644 N.W.2d 260. Although we review the trial court's application of law de novo, we benefit from its analysis. See City of Muskego v. Godec, 167 Wis.2d 536, 545, 482 N.W.2d 79 (1992).

         I. General principles concerning riparian rights and the public trust doctrine in Wisconsin.

         ¶12 After a court trial, the trial court concluded that the public trust doctrine allows the Movriches to access the Flowage from their waterfront property and to erect, maintain, and use a pier anchored on their property and extending into the Flowage. In concluding the public trust doctrine controls, the trial court did not explicitly discuss the apparent tension between the Movriches' asserted riparian rights and the Lobermeiers' property rights and how these rights are subordinate to the public trust doctrine. At trial, and again on appeal, the parties devote a significant portion of their respective briefs to this asserted tension. Having reviewed the applicable law, it is clear these concepts cannot be viewed in a vacuum. We therefore begin by setting forth the basic principles relevant to the public trust doctrine and riparian rights, followed by an explanation of our agreement with the trial court.

A. The public trust doctrine.

         ¶13 "Wisconsin has a long tradition of 'protecting] our valuable water resources.'" Rock-Koshkonong Lake Dist. v. DNR,2013 WI 74, ¶70, 350 Wis.2d 45, 833 N.W.2d 800 (citation omitted; bracketing in original). Article IX, ยง 1 of the Wisconsin Constitution, which has its roots in the Northwest Ordinance with respect to navigable waters and incorporates its ...


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