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Movrich v. Lobermeier

Supreme Court of Wisconsin

January 23, 2018

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

          ORAL ARGUMENT: September 20, 2017

         Circuit Court of Price County, L.C. Nos. 2013CV22, 2013CV78 Patrick J. Madden Judge

         REVIEW 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

         REVIEW of a published decision of the court of appeals. Affirmed in part; reversed in part.

          For 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.

          For the plaintiffs-respondents, there was a brief and oral argument by Daniel Snyder, Park Falls.

          An 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.

          An amicus curiae brief was filed on behalf of Wisconsin REALTORS Association by Thomas D. Larson and Wisconsin REALTORS Association, Madison.


         ¶1 David and Diane Lobermeier appeal a decision of the court of appeals, affirming the circuit court's[1] 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.[2] 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.

         ¶2 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.

         ¶3 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.

         ¶4 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 Lobermeiers' rights.

         ¶5 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 doctrine.

         ¶6 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 shoreline property.

         ¶7 Accordingly, we affirm the court of appeals in part and reverse it in part.

         I. BACKGROUND

         ¶8 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.

         ¶9 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.

         ¶10 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.[3]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 purposes.[4]

         ¶11 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.

         ¶12 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 court.

         ¶13 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.

         ¶14 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.


         A. Standard of Review

         ¶15 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 Principles

         ¶16 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.

         1. Private Property Rights

         ¶17 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 shoreline-owning Movriches.

         ¶18 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).

         ¶19 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 federal law.[5]

         ¶20 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.

         ¶21 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.

         2. Riparian Rights

         ¶22 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)).

         ¶23 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. Id.

         ¶24 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.[6] 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.

         3. Public Trust Doctrine

         ¶25 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.

         ¶26 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.

         ¶27 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.

         ¶28 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) .

         ¶29 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. ยงยง 30.12-30.13. However, ...

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