494 N.W.2d 204 (Wis. 1993), 91-0903, Stoesser v. Shore Drive Partnership
|Citation:||494 N.W.2d 204, 172 Wis.2d 660|
|Opinion Judge:||The opinion of the court was delivered by: Wilcox|
|Party Name:||Martin John STOESSER, Max Berger, Howard Kegel, Daniel Brede, Roger Pitcel, Marion Strasser, and Gregory Spencer, Plaintiffs-Appellants, v. SHORE DRIVE PARTNERSHIP, John Theisen, Chester Bojanowski, and James Erickson, Defendants-Respondents.|
|Attorney:||For the plaintiffs-appellants there were briefs (in the court of appeals) by Patrick J. Hudec, Gabrielle Boehm and Hudec Law Offices, S.c., East Troy.|
|Case Date:||January 19, 1993|
|Court:||Supreme Court of Wisconsin|
Submitted on Briefs Oct. 8, 1992.
[Copyrighted Material Omitted]
[172 Wis.2d 663] For the plaintiffs-appellants there were briefs (in the court of appeals) by Patrick J. Hudec, Gabrielle Boehm and Hudec Law Offices, S.C., East Troy.
For the defendants-respondents there was a brief (in the court of appeals) by Chris J. Trebatoski and Michael, Best & Friedrich, Milwaukee.
Amicus Curiae was filed by Richard J. Rakita, Felicia S. Miller and Hiller & Frank, S.C., Milwaukee for Chicago Title Ins. Co.
This case comes to the court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats. The issue is whether riparian rights can be conveyed to non-riparian landowners by easement. We conclude that an easement can convey riparian rights to non-riparian landowners.
The facts are not in dispute. The plaintiffs-appellants (hereinafter "subdivision owners") are non-riparian landowners in the O-Tan-Kah Subdivision. The defendants-respondents (hereinafter "partnership") are riparian landowners along Lake Beulah having purchased its riparian land on September 15, 1989. The partnership operates a bar and restaurant known as the "Dockside." The subdivision owners claim the right to use the partnership's lakeshore to exercise riparian rights that were reserved in a 1939 warranty deed from [172 Wis.2d 664] their predecessors in title to the partnership's predecessor in title. The relevant portion of the deed states:
the parties of the first part reserve for themselves, their heirs and assigns and the owners in O-Ton-Kah Subdivision and any owners along the channel, the use of the channel as a means of ingress and egress, and also reserving to themselves and such owners, the right in common with the parties of the second part for themselves and guests to use the lake shore for bathing, boating or kindred purposes....
Each year after the 1939 deed was executed the partnership and its predecessors in interest installed a pier on the lakeshore frontage. In the spring of 1989, the subdivision owners, for the first time since the execution of the 1939 deed, exercised the riparian rights they claimed by erecting a pier abutting the shore of the partnership's property. On April 7, 1990 the subdivision owners again erected their pier on the partnership's lakeshore. That same day the partnership removed the subdivision owners' pier claiming the subdivision owners had no right to erect a pier on its property.
The subdivision owners commenced this action on May 25, 1990, alleging that they had "lake rights ... to swim, dock boats, and erect a pier along the shores of Lake Beulah." They no longer claim the right to maintain a pier. The subdivision owners sought declaratory relief setting forth their rights in the lake frontage of Lake Beulah and an injunction to prevent the partnership from placing a pier or other structure which would interfere with the subdivision owners' rights to use the lakeshore. The subdivision owners also requested compensatory and punitive damages.
The partnership moved for summary judgment arguing that riparian rights cannot be conveyed by easement. [172 Wis.2d 665] The circuit court granted the partnership's motion for summary judgment. The circuit court stated, "the case law has made it clear that a non-riparian owner has no rights, no riparian rights." The circuit court went on to rule that to the extent the deeds purported to convey riparian rights to non-riparian owners they were null...
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