from a judgment of the circuit court for Price County, Cir.
Ct. No. 13CV22 13CV78 PATRICK J. MADDEN, Judge. Affirmed.
Curley, P. J., Kessler and Brash, JJ.
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.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
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
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. Prior to the Flowage's existence,
however, there was simply a Sailor Creek.
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
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. The Lobermeiers own only a small portion
of the Flowage waterbed, and part of their submerged property
abuts the Movriches' upland waterfront property.
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.
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
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,  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. The court thereafter entered judgment
against the Lobermeiers, and this appeal follows.
Additional facts will be developed below as necessary.
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.
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); 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).
General principles concerning riparian rights and the
public trust doctrine in Wisconsin.
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
A. The public trust doctrine.
"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, § 1 of the Wisconsin Constitution, which has
its roots in the Northwest Ordinance with respect to
navigable waters and incorporates its ...