Get Your Pier Off My (Under Water) Property: The Wisconsin Public Trust Doctrine and Riparian vs. Waterbed Property Ownership Rights

December 17th, 2016 by

dock-photoThe Wisconsin Court of Appeals recently added the newest decision to the voluminous body of case law interpreting the public trust doctrine. The public trust doctrine, which is enshrined in the Wisconsin Constitution and has roots back to Wisconsin’s provincial days, is meant to protect the state’s water resources for the good of all. In short, the doctrine grants the public the right to use and enjoy all “navigable waters” in the state.

A corollary of the public trust doctrine permits owners of riparian property (land abutting a body of water) to use their shoreline to access and use the water. The Wisconsin Supreme Court has said that this includes the right to build a dock or pier that extends over the water. ABKA Ltd. P’ship v. Wisconsin Dep’t of Nat. Res., 2002 WI 106, ¶ 57, 255 Wis. 2d 486, 648 N.W.2d 854.

In a recent dispute between siblings (and their spouses), the Wisconsin Court of Appeals upheld the right of riparian property owners to build piers. In Movrich v. Lobermeier, 2015-AP-583 (Nov. 29, 2016), one couple owned waterfront property along the Sailor Creek Flowage in Price County, Wisconsin, while the other couple owned adjacent submerged land underneath the Flowage. The waterfront-property couple had a dock that extended from their property out into the Flowage, above the other couple’s property. The underwater-property couple eventually sued, arguing that they had exclusive rights to the waterbed and therefore the waterfront-couple’s pier could not be anchored in their waterbed.

The court ultimately sided with the waterfront couple, and allowed them to keep their pier. In line with previous decisions of Wisconsin courts, the court here ruled that property rights in submerged waterbeds are subordinate to the public trust doctrine. As a result, the court found that by virtue of owning riparian property, the waterfront couple was allowed to maintain their pier.

If you have a question or dispute regarding your riparian or other water-related rights, contact the qualified attorneys at Halling & Cayo, S.C. by calling (414) 271-3400, or emailing [email protected].