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Judge, not jury, decides riparian boundaries

By: David Ziemer, [email protected]//August 4, 2011//

Judge, not jury, decides riparian boundaries

By: David Ziemer, [email protected]//August 4, 2011//

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Hon. Kitty Brennan

Determining riparian boundaries is a decision for the court, rather than the jury, even if the neighbors sue in tort, rather than seeking declaratory judgment.

Judge Kitty Brennan wrote for the Wisconsin Court of Appeals on Aug. 2, “While answering the question requires review of some facts to determine what is equitable, the underlying question is a legal one historically left to the court to decide.”

The Manlick and the Loppnow families own bordering lakefront property on Pewaukee Lake. Historically, both placed their piers on the north end of their respective properties.

But in 2007, the Loppnows moved their pier to the south end of their property, immediately next to the Manlicks’ pier, and south of the property line, if the property line on land were extended n a straight line out into the lake.

In 2008, the Manlicks filed suit, alleging trespass, conversion and nuisance. The Loppnows counterclaimed for nuisance and trespass.

A jury trial commenced, but the circuit court ruled that drawing the boundary between the parties’ riparian areas was for the court to decide.

After ruling in the Loppnows favor as to the location of the boundary, it dismissed the Manlicks’ claims. The jury then ruled in favor of the Loppnows on their nuisance claim, but awarded no damages.

The Manlicks appealed, but the Court of Appeals affirmed.

The court first ruled that it was proper for the judge to determine the boundaries, rather than the jury.

Wisconsin law sets forth three methods for determining riparian boundaries: (1) if the course of the shore is relatively straight, boundaries are determined by extending the onshore property line straight into the lake; (2) if the shoreline is curved, the line should be drawn in a straight line at a right angle to the shoreline without respect to the onshore boundaries (the coterminous method); (3) if the shoreline is irregular, the boundary should be drawn to divide the total navigable waterfront in proportion to the length of the actual shorelines of each owner.

The Court of Appeals held it was proper for the circuit court to decide which method was the appropriate one to use.

The court noted that there was no factual dispute as to the coordinates of the shoreline or the actual placement of the piers, but rather the fairness of using one method over another.

Because issues regarding fairness are founded in equity, and there is no right to a jury trial in equitable actions, the court held the judge should choose the method.

The court then turned to whether the circuit court properly exercised its discretion in using method two to draw the boundary line, and held that it did.

Because the shoreline is curved rather than straight or irregular, the court concluded that application of method two was proper, and affirmed.

What the Court Held

Case: Manlick v. Loppnow, No. 2010AP2034

Issue: Should the judge or the jury determine the riparian boundary line between neighboring owners?

Holding: The judge, as the question is equitable, rather than factual.

Attorneys: For Plaintiffs: Patricia A. Schober, Brookfield; For Defendants: John M. Bruce, New Berlin; Thomas J. Marola, West Allis

David Ziemer can be reached at [email protected].

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