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Property – Public Trust

By: Derek Hawkins//February 1, 2018//

Property – Public Trust

By: Derek Hawkins//February 1, 2018//

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WI Supreme Court

Case Name: Jerome Movrich, et al.

Case No.: 2018 WI 9

Focus: Property – Public Trust

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.

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. 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.

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.

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

Affirmed

Concur: ABRAHAMSON, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by A.W. BRALDEY, J. and ABRAHAMSON, J. (except Part II) (opinion filed).

Dissent: ABRAHAMSON, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by A.W. BRALDEY, J. and ABRAHAMSON, J. (except Part II) (opinion filed).

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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