Court of Appeals Allows Riparians to Place a Pier on Privately Owned Flowage Bed
A recent case from District III of the Wisconsin Court of Appeals, Movrich v. Lobermeier, No. 2015AP583 (Ct. App. Nov. 29, 2016), addresses the right of owners of property adjacent to a flowage to access the flowage and install a pier on the flowage bed when the portion of the flowage bed abutting that owners’ property is owned by someone else. Jerome and Gail Movrich, the owners of property adjacent to a flowage, filed suit against David and Diane Lobermeier, the owners of the flowage bed adjacent to the Movriches’ property, seeking a declaration of the Movriches’ ability to access the flowage and to install a pier attached to the bed of that flowage. The trial court concluded that the Movriches could access the water from their property and install a pier on the flowage bed, and the Lobermiers appealed that decision. The court of appeals affirmed.
The flowage at issue was created around 1941 by the Town of Fifield’s damming of Sailor Creek. At that time, the owner of the land to be flowed, Margaret Hussmann, granted to the Town and its assigns and successors “the perpetual right, privilege and easement” to flood a portion of lands. Hussmann retained the interest in the submerged land as well as adjacent upland property. Overtime, Hussmann’s interest in this land was transferred to various parties. One such party was the Lobermeiers, who became owners of upland waterfront property as well as a portion of the bed underlying the flowage. The Lobermeiers eventually sold their upland property but retained their interest in the submerged land. In 2006, the Movriches purchased waterfront property abutting the flowage. A portion of the Lobermeiers’ submerged property abuts the Movriches’ upland waterfront property.
When the Movriches’ purchased their property, there was already a pier installed that extended from their property into the flowage. The Movriches used their property and the flowage in various ways, including fishing, mooring their boat to the pier, wading in the water, and kayaking, up until 2011 or 2012. At that time, the Lobermeiers began asserting their exclusive right to use the flowage bed adjacent to the Movriches’ property.
The Movriches brought suit against the Lobermeiers, seeking a declaration of their rights to access the flowage from their waterfront property and to install a pier extending into the flowage. The circuit court concluded that the public trust doctrine allows the Movriches the right to access the flowage directly from their property and to erect, maintain, and use a pier anchored to their property and to the bed of the flowage.
The court of appeals concurred with the circuit court that this case turned on the interaction between riparian rights and the public trust doctrine, which preserves for the public the right to use navigable waters for navigation and “incidents of navigation.” Before the court of appeals, the Lobermeiers conceded that the public trust doctrine applies to the flowage. However, they argued that the public trust doctrine does not grant the Movriches a right to access the flowage from the Movriches’ property, as opposed to from a public access point, nor does the public trust doctrine give the Movriches the right to place a pier on the flowage bed owned by the Lobermeiers. The court rejected the Lobermeiers’ arguments on two main grounds.
First, the court rejected the Lobermeiers’ reliance on a cases involving waterbodies located entirely within the boundaries of one owner’s property. The court distinguished those cases, wherein adjacent property owners did not obtain riparian rights, from the instant case, on the ground that the Lobermeiers did not own the entire flowage bed and neither the flowage bed nor the flowage itself were entirely within the boundaries of the Lobermeiers’ property. The court explained that such cases were not determinative on the facts in the instant case.
Second, the court opined that because the flowage was created by the damming of a navigable river, the Lobermeiers’ property interests were subordinate to the public’s right to use the flowage pursuant to the public trust doctrine. The court explained that it was required to interpret the public trust doctrine in a manner that allows the public to fully enjoy its benefits. The court further explained that because piers aid in navigation, the Movriches’ rights under the public trust doctrine include the right to access the water from their property and the right to erect a pier on the privately owned flowage bed.
The court’s authorization of access to public trust waters in this case is in keeping with well-established law. However, allowing a riparian to place a pier on a privately owned flowage bed is an extension of current law. In Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 39 N.W.2d 712 (1949), the court held that the public trust doctrine did not give members of the public the right to place structures, in that case muskrat traps, on privately owned beds because trapping was not an “incident of navigation.” Although the court in Movrich did not discuss Munninghoff, it used the “incidents of navigation” rationale to authorize the placement of a pier on a privately owned flowage bed at least by a riparian owner.
