ARGUMENT: September 20, 2017
Court of Price County, L.C. Nos. 2013CV22, 2013CV78 Patrick
J. Madden Judge
OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d
724, 889 N.W.2d 454 PDC No: 2016 WI.App. 90 - Published
of a published decision of the court of appeals. Affirmed in
part; reversed in part.
the defendants-appellants-petitioners, there were briefs
filed by Brian G. Formella and Anderson, O'Brien, Bertz,
Skrenes & Golla, LLP, Stevens Point. There was an oral
argument by Brian G. Formella.
the plaintiffs-respondents, there was a brief and oral
argument by Daniel Snyder, Park Falls.
amicus curiae brief was filed on behalf of Big Cedar Lake
Protection and Rehabilitation District and Wisconsin
Association of Lakes, Inc. by William P. O'connor and
Wheeler, Van Sickle & Anderson, S.C., Madison. There was
an oral argument by William P. 0'Connor.
amicus curiae brief was filed on behalf of Wisconsin REALTORS
Association by Thomas D. Larson and Wisconsin REALTORS
PATIENCE DRAKE ROGGENSACK, C.J.
David and Diane Lobermeier appeal a decision of the court of
appeals, affirming the circuit court's judgment entered
in favor of Jerome and Gail Movrich regarding their asserted
right to install a pier and to access the Sailor Creek
Flowage directly from their shoreline property. Lobermeiers
own the waterbed of the Flowage where the Movrich property
meets the water. Lobermeiers contend that the presence of
navigable water over their property does not affect their
basic property rights, including the right to prohibit
Movriches from installing a pier into or over the portion of
the waterbed of the Flowage that Lobermeiers own. Lobermeiers
further contend that Movriches may access the Sailor Creek
Flowage only from a public access point. Movriches respond
that Lobermeiers' ownership is qualified by and
subservient to their asserted riparian rights and to the
Wisconsin public trust doctrine.
There are three issues on this appeal. First, we consider
whether Movriches have riparian rights, which when combined
with their rights under the public trust doctrine, overcome
Lobermeiers' private property rights such that Movriches
can place a pier on or over Lobermeiers' property. To
answer this question we review property rights, riparian
rights, and the public trust doctrine, detailing the origin
and extent of each.
In regard to the first issue, we conclude that while
Movriches' property borders the Flowage, they are not
entitled to those riparian rights that are incidental to
property ownership along a naturally occurring body of water
wherein the lakebed is held in trust by the state. Rather,
any property rights Movriches may enjoy in regard to the
man-made body of water created by the flowage easement must
be consistent with Lobermeiers' property rights or the
flowage easement's creation of a navigable body of water.
Because the placement of a pier is inconsistent with
Lobermeiers' fee simple property interest and does not
arise from the flowage easement that supports only public
rights in navigable waters, Movriches' private property
rights are not sufficient to place a pier into or over the
waterbed of the Flowage without Lobermeiers' permission
based on the rights attendant to their shoreline property.
Second, we consider the nature of the flowage waters, to
which all agree the public trust doctrine applies, and
whether the public trust doctrine grants Movriches the right
to install a pier directly from their property onto or over
the portion of the waterbed that is privately owned by
Lobermeiers. In answering this inquiry, we consider whether
and to what extent the existence of navigable waters over
Lobermeiers' privately-owned property affects
On this issue, we conclude that the public trust doctrine
conveys no private property rights, regardless of the
presence of navigable water. In a flowage easement such as is
at issue here, title to the property under the flowage may
remain with the owner. While the public trust doctrine
provides a right to use the flowage waters for recreational
purposes, that right is held in trust equally for all.
Furthermore, although the Lobermeiers' property rights
are modified to the extent that the public may use the
flowage waters for recreational purposes, no private property
right to construct a pier arises from the public trust
Third, we consider whether the Wisconsin public trust
doctrine when combined with the shoreline location of
Movriches' property allows Movriches to access and exit
the flowage waters directly from their abutting property; or,
whether, because Lobermeiers hold title to the flowage
waterbed, Movriches must access the Flowage from the public
access. On this issue, we conclude that as long as Movriches
are using the flowage waters for purposes consistent with the
public trust doctrine, their own property rights are
sufficient to access and exit the Flowage directly from their
Accordingly, we affirm the court of appeals in part and
reverse it in part.
This appeal concerns the tension between asserted riparian
rights, ownership of property underlying a flowage, and
Wisconsin's public trust doctrine. More specifically,
property owners David and Diane Lobermeier appeal from a
judgment granting Jerome and Gail Movrich the right to place
a pier into and over Lobermeiers' property and to access
Sailor Creek Flowage directly from Movriches' abutting
property. Movrich v. Lobermeier, 2016 WI.App. 90,
372 Wis.2d 724, 889 N.W.2d 454.
The Sailor Creek Flowage is a 201 acre, man-made lake located
near the Town of Fifield in Price County, Wisconsin. It was
created by a dam placed on Sailor Creek in 1941. At that
time, a Deed of Flowage Rights was executed by Margaret
Hussmann, who granted the Town of Fifield "the perpetual
rights, privilege and easement to submerge, flood and/or
raise the ground water elevation" of the underlying
property. Over time, the property that Hussmann subjected to
the flowage easement in 1941 was transferred to various
persons. Some of that property was deeded to brothers David
and Robert Lobermeier in 2000, while other property
eventually became the Sailor Creek Flowage Subdivision, where
Movriches purchased property in 2006.
Today, Lobermeiers own a portion of the waterbed of the
Flowage that is subject to the Hussmann flowage easement.
Lobermeiers' portion of the waterbed abuts Movriches'
property.David Lobermeier and Gail Movrich are
brother and sister. For a number of years the families
existed in harmony, each making use of a pier on the Movrich
property to moor their boats, and from which they swam and
fished. In about 2011 or 2012, however, the families had a
falling out, at which point Lobermeiers began to assert that
they have exclusive rights to the waterbed at issue.
Lobermeiers concede that the Wisconsin public trust doctrine
grants Movriches, and all other members of the public, access
to the Flowage's waters for navigation and recreation
This case originally involved several properties, each of
which abutted the Lobermeier waterbed property. David
Lobermeier first brought an action against Robert D.
McWilliams, who sought a declaration that Wisconsin's
public trust doctrine granted to McWilliams the right to
access Lobermeiers' waterbed property from
McWilliams' abutting lot, as well as the right to install
the pads of his pier directly on the bed of the Flowage,
i.e., on the Lobermeier waterbed property.
Separately, Movriches filed a summons and complaint against
Lobermeiers seeking a declaration of their right to install
and maintain a pier extending from their land over the
Flowage for boating and recreational purposes and their right
to enter the Flowage directly from their shoreline property
pursuant to their asserted riparian rights and for purposes
commonly sanctioned by the public trust doctrine. These cases
were consolidated and heard together in Price County circuit
Following a one-day trial, the circuit court granted judgment
in favor of Movriches, declaring that they "have the
right to enter the waters of the said Sailor Creek Flowage
from their said real estate . . . [and] to erect, maintain,
and use a dock or pier anchored on their said real estate and
extending over the waters of the said Sailor Creek Flowage .
. . ." The circuit court enjoined Lobermeiers from
coming upon Movriches' property and from interfering or
hindering Movriches in the exercise of their rights of
ownership. The circuit court limited its analysis to the
public trust doctrine, concluding that the doctrine includes
the right of an abutting property owner to place a pier on or
over privately-owned land when it is submerged beneath
navigable water. The court of appeals affirmed.
Lobermeiers petitioned for review, challenging the court of
appeals' conclusion that the public trust doctrine allows
Movriches to access the Flowage directly from their abutting
property or to install and maintain a pier over the Flowage,
whether supported by posts resting on the Flowage bed or by
flotation devices. We granted review and, for the reasons
explained below, we now affirm in part and reverse in part.
Standard of Review
The relevant facts are not disputed. Accordingly, we focus on
whether prior court decisions properly applied the principles
of property law, riparian rights, and the public trust
doctrine. These are questions of law that we independently
review. Phelps v. Physicians Ins. Co. of Wis., Inc.,
2009 WI 74, ¶35, 319 Wis.2d 1, 768 N.W.2d 615;
Linden v. Cascade Stone Co., Inc., 2005 WI 113,
¶5, 283 Wis.2d 606, 699 N.W.2d 189. B. General
The parties have not presented any case law discussing the
interplay between basic property rights, riparian rights, and
the public trust doctrine under these or similar facts, i.e.,
where the bed of a navigable body of water is privately
owned, only in part. We address each issue in turn.
Private Property Rights
Both the circuit court and the court of appeals analyzed the
public trust doctrine and considered the rights of alleged
riparian owners without first addressing the various types of
common law property rights presented herein. We agree with
Lobermeiers that we must begin our analysis by addressing
their private property rights and those of Movriches,
respectively, because both assert private property interests,
those of the waterbed-owning Lobermeiers and those of the
Lobermeiers own their submerged property in fee simple.
"Authorities to prove that a fee-simple estate is the
highest tenure known to the law are quite unnecessary, as the
principle is elementary and needs no support."
Lycoming Fire Ins. Co. of Muncy, Pa. v. Haven, 95
U.S. 242, 245 (1877) . An owner in fee simple is presumed to
be the "entire, unconditional, and sole owner [ ] of
[any] buildings as well as the land . . . . "
Id. This is true regardless of whether the property
has positive economic or market value. See Phillips v.
Wash. Legal Found., 524 U.S. 156, 170 (1998).
In Wisconsin, the breadth of rights accompanying a fee simple
interest is settled law. See Walgreen Co. v. City of
Madison, 2008 WI 80, ¶44, 311 Wis.2d 158, 752
N.W.2d 687 (describing the fee simple interest as the right
to use, possess, enjoy, dispose of, exclude, or the right not
to exercise any of these rights); ABKA Ltd. P'ship v.
DNR, 2001 WI.App. 223, ¶28, 247 Wis.2d 793, 635
N.W.2d 168 ("A fee simple interest means 'an
interest in land that, being the broadest interest allowed by
law, endures until the current holder dies without heirs . .
. .'") . These rights are equally reflected in
The significance of property rights is reflected in the law
of damages. One who intentionally steps from his or her own
property onto the property of another, irrespective of
whether he or she thereby causes harm to any legally
protected interest of the other, is liable for trespass.
Grygiel v. Monches Fish & Game, 2010 WI 93,
¶40, 328 Wis.2d 436, 787 N.W.2d 6; see also
Restatement (Second) of Torts § 158. Wisconsin law
acknowledges that actual harm occurs in every trespass.
Jacque v. Steenberg Homes, 209 Wis.2d 605, 619, 563
N.W.2d 154 (1997). Although consent to entry is generally a
defense to an action for trespass, consent may later be
revoked. Grygiel, 328 Wis.2d 436, ¶41;
Manor Enterprises, Inc. v. Vivid, Inc., 228 Wis.2d
382, 394, 596 N.W.2d 828 (1999); see also
Restatement (Second) of Torts § 160. However, fee simple
interests may be subject to certain limitations when an
easement is granted. See Borek Cranberry Marsh, Inc. v.
Jackson Cty., 2009 WI.App. 129, ¶¶9-11, 321
Wis.2d 437, 773 N.W.2d 522.
These principles of property law are crucial to our analysis.
However, despite the consideration of private property
rights, the presence of navigable water makes this a more
complicated case. We keep this in mind as we address alleged
riparian rights and the public trust doctrine.
Riparian rights may include "special rights to make use
of water in a waterway adjoining [an] owner's
property." 93 C.J.S. Waters § 9. They are the
"bundle of rights" that may be conferred upon a
property owner by virtue of his contiguity to a navigable
body of water. Mayer v. Grueber, 29 Wis.2d 168, 174,
138 N.W.2d 197');">138 N.W.2d 197 (1965) . Riparian rights are private property
rights, subject to and limited to some extent by the public
trust doctrine, discussed below. R.W. Docks & Slips
v. DNR, 2001 WI 73, ¶18, 244 Wis.2d 497, 628 N.W.2d
781. We have previously recognized that common law riparian
rights may include:
[t]he right to reasonable use of the waters for domestic,
agricultural and recreational purposes; the right to use the
shoreline and have access to the waters; the right to any
lands formed by accretion or reliction; the right to have
water flow to the land without artificial obstruction; the
limited right to intrude onto the lakebed to construct
devices for protection from erosion; and the right, now
conditioned by statute, to construct a pier or similar
structure in aid of navigation.
Id., ¶21 (citing Cassidy v. DNR, 132
Wis.2d 153, 159, 390 N.W.2d 81 (Ct. App. 1986)).
The extent of riparian rights varies in accordance with the
nature of the body of water at issue. Mayer, 29
Wis.2d at 173. With respect to the owner of riverfront
property, a riparian owner may own to the thread of the
stream. Id. However, the title of a riparian owner
is qualified and subject to the interests of the state.
Id. The "owner of land abutting a natural lake
or pond owns to the water line only." Id. The
lake bottom is held in trust for the people of the state.
In Wisconsin, there is a presumption that owning property
abutting a natural body of water confers certain riparian
rights. Id. at 174. 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. "[O]ne who acquires land abutting a
stream or body of water may acquire no more than is conveyed
by his deed." Id. In the case of a man-made
body of water located wholly on the property of a single
owner, there is no presumption in favor of riparian rights.
Id. at 176. Rather, "all of the incidents of
ownership are vested in the owner of the land" to convey
as he or she expresses in conveyances. Id.
Public Trust Doctrine
Under the public trust doctrine, as a general rule, the State
of Wisconsin "holds the beds underlying navigable waters
in trust for all of its citizens." Muench v. Public
Serv. Comm'n, 261 Wis. 492, 501, 53 N.W.2d 514');">53 N.W.2d 514.
However, a riparian owner on the bank of a navigable stream
may have a qualified title in the stream bed to its center.
Id. at 502. The public rights protected under the
public trust doctrine include boating, swimming, fishing,
hunting and preserving scenic beauty. Rock-Koshkonong
Lake Dist. v. DNR, 2013 WI 74, ¶72, 350 Wis.2d 45,
833 N.W.2d 800');">833 N.W.2d 800.
The doctrine can be traced back to the Northwest Ordinance of
1787, which set up the machinery for the government of the
Northwest Territory after the Revolutionary War. Wisconsin
Const. art. IX, § 1, adopted by the Territorial
Convention on February 17, 1848, adopted verbatim the words
of the Northwest Ordinance with respect to navigable waters:
The state shall have concurrent jurisdiction on all rivers
and lakes bordering on this state so far as such rivers or
lakes shall form a common boundary to the state and any other
state or territory now or hereafter to be formed, and bounded
by the same; and the river Mississippi and the navigable
waters leading into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common highways
and forever free, as well to the inhabitants of the state as
to the citizens of the United States, without any tax, impost
or duty therefor.
Muench, 261 Wis. 492 at 499-500.
Although the doctrine was originally intended to apply only
to water that was navigable per se, "[t]his court has
long held that the public trust in navigable waters
'should be interpreted in the broad and beneficent spirit
that gave rise to it in order that the people may fully enjoy
the intended benefits.'" Rock-Koshkonong Lake
Dist., 350 Wis.2d 45, ¶72, (citing Diana
Shooting Club v. Husting, 156 Wis. 261, 271, 145 N.W.
816 (1914)). "Broadly interpreting the public trust has
resulted in recognition of more than just commercial
navigability rights. Protection now extends to 'purely
recreational purposes such as boating, swimming, fishing,
hunting, . . . and . . . preserv[ing] scenic
beauty.'" Id. The doctrine traditionally
applies to all areas within the ordinary high water mark of
the body of water in question. R.W. Docks &
Slips, 244 Wis.2d 497, ¶19.
The public trust doctrine does not convey private property
rights. Rather, for at least a century, we have recognized
the public trust doctrine as a limit on riparian rights.
Wisconsin common law has established that the right to place
structures for access to navigable water is "qualified,
subordinate, and subject to the paramount interest of the
state and the paramount rights of the public in navigable
waters." Id., ¶22. This is true even where
the bed is privately held, as long as the body of water is
public, navigable and created by use of public waters.
See Klingeisen v. DNR, 163 Wis.2d 921, 927-28, 472
N.W.2d 603 (Ct. App. 1991) .
The legislature, as trustee, is empowered to adopt
regulations to protect public rights established under the
public trust doctrine. See Ashwaubenon v. Public Serv.
Comm'n, 22 Wis.2d 38, 125 N.W.2d 647 (1963);
State v. Bleck, 114 Wis.2d 454, 465, 338 N.W.2d 492');">338 N.W.2d 492
(1983). Under this authority, the legislature has enacted
provisions regulating the placement of any structure on the
bed of navigable waters, unless placed under permit or other
legislative authority. See Wis.Stat. §§
30.12-30.13. However, ...