Anchor Point Condominium v. Fish Tale Pro.
| Decision Date | 03 July 2008 |
| Docket Number | No. 2007AP2378.,2007AP2378. |
| Citation | 2008 WI App 133,758 N.W.2d 144 |
| Parties | ANCHOR POINT CONDOMINIUM OWNER'S ASSOCIATION, Plaintiff-Appellant, v. FISH TALE PROPERTIES, LLC, Jiran & Sadek, LLC, Sadek & Zersen, LLC and Wayne K. Sadek, Jr., Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Raymond M. Roder, Brian K. Nowicki and Shana M. Feuling Weber of Reinhart Boerner Van Duren, S.C., Madison.
On behalf of the defendant-respondent, Fish Tale Properties, LLC, the cause was submitted on the brief of Kenneth B. Axe and Carrie M. Benedon of Lathrop & Clark LLP., Madison.
Before DYKMAN, VERGERONT and BRIDGE, JJ.
Anchor Point Condominium Owner's Association (APCA) appeals from an order granting summary judgment to Fish Tale Properties in APCA's action for a declaratory judgment and injunction to prevent Fish Tale from using APCA's piers and boat slips. APCA argues that the trial court erred in finding that the documents granting Fish Tale the right to use APCA's piers and boat slips did not transfer APCA's riparian rights to Fish Tale contrary to WIS. STAT. § 30.133(1) (2005-06).1 APCA also argues that the trial court erred in finding that even if the documents violate § 30.133(1), APCA is estopped from arguing that Fish Tale may not use its piers and boat slips. We conclude that the documents establishing Fish Tale's right to use APCA's piers and boat slips are transfers of riparian rights in violation of § 30.133(1), and that equitable estoppel may not be invoked to prevent APCA from seeking an injunction. Accordingly, we reverse.
¶ 2 The following facts are undisputed and are taken from the parties' submissions on summary judgment.2 In 2002, Jiran & Sadek, LLC, owned two adjacent lots in Columbia County, one of which abutted Lake Wisconsin. A restaurant was located on Lot One, the non-lake property. Lot Two, the lake property, was the future location of Anchor Point Condominiums.
¶ 3 On June 21, 2002, Jiran & Sadek executed a document entitled "Declaration of Driveway, Walkway and Parking Easement and Agreement" (the Declaration). The Declaration creates an easement for shared driveways and parking lots between the properties. It also grants to the restaurant property an eight-foot easement for ingress and egress on the condominium property. Finally, it grants to the restaurant property the right to use some of the condominium's piers, boat slips and docks. The Declaration provides that the rights created therein are perpetual and run with the land. In January 2003, the successor owner of the restaurant property, Sadek & Sadek, LLC, assigned similar rights to Fish Tale in connection with Fish Tale's purchase of the restaurant property.
¶ 4 APCA brought this action in January 2007 for a declaratory judgment and injunction to prevent Fish Tale from using APCA's piers and boat slips. Both parties moved for summary judgment. The trial court granted summary judgment to Fish Tale, and APCA appeals.
¶ 5 "We review summary judgment decisions using the same methodology as the trial court." Apple Valley Gardens Ass'n, Inc. v. MacHutta, 2007 WI App 270, ¶ 10, 306 Wis.2d 780, 743 N.W.2d 483, review granted, 2008 WI 40, 308 Wis.2d 609-, 749 N.W.2d 661. Summary judgment is warranted where there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Id. Because the facts in this case are undisputed, we address only issues of law in determining whether summary judgment is appropriate. See id.
¶ 6 This case requires that we interpret Wis. Stat. § 30.133. Statutory interpretation is a question of law that we review de novo. World Wide Prosthetic Supply, Inc. v. Mikulsky, 2002 WI 26, ¶ 8, 251 Wis.2d 45, 640 N.W.2d 764. Further, Milas v. Labor Ass'n of Wisconsin, Inc., 214 Wis.2d 1, 8, 571 N.W.2d 656 (1997).
¶ 7 APCA argues that the Declaration and assignment are invalid because they purport to transfer riparian rights to non-riparian owners and thus violate WIS. STAT. § 30.133(1), which prohibits a riparian owner from transferring any riparian right to another "except for the right to cross the land in order to have access to the navigable water." Fish Tale responds that the right to use APCA's piers and boat slips is not a riparian right, and thus not subject to the restriction prohibiting the transfer of riparian rights under § 30.133(1). Fish Tale then argues that even if use of a pier is a riparian right, it is encompassed within the exception to § 30.133(1), allowing the transfer of the riparian right to cross the land in order to have access to the navigable water. We agree with APCA.3
¶ 8 The first dispute between the parties is whether the right to pier use conveyed in the Declaration constitutes a riparian right, and is thus subject to the restriction prohibiting the transfer of riparian rights under WIS. STAT. § 30.133(1). The third paragraph of the Declaration, entitled "Lakeside Piers, Boat Slips and Docks," states:
As shown on the Plat of Condominium of Anchor Point Condominium, there are presently located or plan to be located lakeside piers, boat slips, and docks located on and adjacent to the lakeshore. These piers, slips, and docks, are planned to be constructed and maintained by Condominium. Restaurant Owner, its customers, guests, and invitees, shall be permitted to use the outside (lake side) areas of said piers and docks, and Condominium shall take all reasonable steps to reserve said piers, slips and docks for use by Restaurant Owner, its guests, invitees, and customers. In addition to the outside (lake side) areas of said piers and docks, there shall also be reserved for Restaurant Owner additional pier and dock space for six (6) boats on the inside (shore side) of said piers, slips and docks. The inside (shore side) area of said piers, slips, and docks, shall be reserved for use by Condominium, its unit owners, guests and invitees, except the six (6) boat spaces reserved to Restaurant Owner herein set forth. There shall be reserved for Restaurant Owner, its guests and invitees, pier and dock space for not less than six (6) boats at any one time. It is recognized in this agreement that Lot One presently has operated thereon a restaurant generally open to members of the public. When determining space necessary for boats pursuant to this paragraph, thirty (30) running feet of pier or dock length shall be deemed sufficient per boat.
¶ 9 Thus, the Declaration purports to convey use of pier and boat slip space by the riparian owners of the condominium property to the non-riparian owners of the restaurant property.4 The question, then, is whether use of pier and boat slip space is a riparian right.5 We conclude that it is.
¶ 10 "Riparian owners are those who have title to the ownership of land on the bank of a body of water." ABKA Ltd. P'ship v. DNR, 2002 WI 106, ¶ 57, 255 Wis.2d 486, 648 N.W.2d 854. Riparian owners enjoy specific property rights based on owning land abutting water, "includ[ing] the right to use the shoreline and have access to the waters, the right to reasonable use of the waters for domestic, agricultural and recreational purposes, and the right to construct a pier or similar structure in aid of navigation." Id. A riparian owner's rights also include exclusive possession as necessary to access and use the water. Id.
¶ 11 Fish Tale argues that Wisconsin courts have never recognized use of a pier as a riparian right, and thus pier use, like boat use, is merely a valid public use of private property in the water.6 Fish Tale cites R.W. Docks & Slips v. State, 2001 WI 73, ¶ 19, 244 Wis.2d 497, 628 N.W.2d 781, for the proposition that use of the water for "boating, swimming, fishing, hunting, [and] recreation" is open to the public pursuant to the public trust doctrine. While we agree that the Wisconsin navigable waters belong to the state, we do not agree that this translates into a non-riparian owner's right to use a riparian owner's pier.7
¶ 12 Contrary to Fish Tale's argument, a pier is not analogous to a boat. A boat is mobile and retains its identity as a boat in and out of the water; piers, by definition, are placed on and over a lake or river bed:
"Pier" means any structure extending into navigable waters from the shore with water on both sides, built or maintained for the purpose of providing a berth for watercraft or for loading or unloading cargo or passengers onto or from watercraft. Such a structure may include a boat shelter which is removed seasonally. Such a structure may include a boat hoist or boat lift, and the hoist or lift may be permanent or may be removed seasonally.
WIS. STAT. § 30.01(5). Because a pier is only a pier when it is placed in the water, riparian rights are necessarily implicated through placement and use of a pier.
¶ 13 Fish Tale argues that only pier placement, and not pier use, has been recognized as a riparian right. See Attorney General ex rel. Askew v. Smith, 109 Wis. 532, 540, 85 N.W. 512 (1901). Thus, Fish Tale urges us to draw a distinction between the two. While we recognize that placing a pier and using a pier are distinct acts, it does not follow that only pier placement is a riparian right. We have said that "[r]egulation of private riparian uses is essential if the state is to fulfill its role of protecting state waters." ABKA Ltd. P'ship v. DNR, 2001 WI App 223, ¶ 40, 247 Wis.2d 793, 635 N.W.2d 168, aff'd on other grounds, 2002 WI 106, 255 Wis.2d 486, 648 N.W.2d 854. We fail to see how placement of a pier could be deemed a riparian right and thus subject to statutory...
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