DeSombre v. Boldebuck
| Decision Date | 26 November 2019 |
| Docket Number | Appeal No. 2018AP2227 |
| Citation | 389 Wis.2d 625,2020 WI App 1,937 N.W.2d 299 (Table) |
| Parties | Michael G. DESOMBRE and Jiyoung C. DeSombre, Plaintiffs-Respondents, v. James I. BOLDEBUCK and Charity A. Boldebuck, Defendants-Appellants. |
| Court | Wisconsin Court of Appeals |
¶1 This case concerns a dispute regarding the ownership of a pier and a "wet boathouse"—that is, a boathouse constructed beyond the ordinary high water mark (OHWM) of a navigable waterway.1 Michael and Jiyoung DeSombre sued their neighbors, James and Charity Boldebuck, seeking a declaration that the DeSombres own a permanent pier and wet boathouse extending into Otter Lake in Vilas County, as well as a declaration that the pier and wet boathouse do not interfere with the Boldebucks’ riparian rights. The circuit court granted summary judgment in favor of the DeSombres on both of their claims.
¶2 We conclude the circuit court erred by granting the DeSombres summary judgment because they failed to make a prima facie showing that the pier and wet boathouse are not located at least partially within the Boldebucks’ riparian zone. At the very least, there are disputed issues of material fact regarding the location of the pier and wet boathouse in relation to the parties’ respective riparian zones. We therefore reverse the court’s grant of summary judgment in favor of the DeSombres and remand for further proceedings on their claims.2
¶3 The DeSombres and the Boldebucks own neighboring properties on Otter Lake in Vilas County. The western boundary line of the DeSombres’ property is the eastern boundary line of the Boldebucks’ property. Both properties are part of Fred Morey’s Subdivision, the plat for which was recorded in 1910.
¶4 Prior to 2004, both the Boldebucks’ property—Lot 29—and the DeSombres’ property—Lot 30—were owned by Jocelyn Blair. On October 11, 2004, Blair executed a warranty deed conveying Lot 30 to Jerome and Patricia Connery. Although identified in the deed as Lot 30, the property was described using a metes and bounds legal description. Below the legal description, the deed contained the notation: "Including the right to continue to use and maintain the existing boat house and pier located near the Northwest corner of this parcel."
¶5 Just over two weeks later, on October 29, 2004, Blair executed a warranty deed conveying Lot 29 to Jay Brentlinger. Again, although the deed identified the property as Lot 29, it was described using a metes and bounds legal description. Below the legal description, the deed stated: "Subject to the right of the grantor, their heirs and assigns to continue to use and maintain the existing boat house and pier located near the Northeast corner of this parcel, said grantor owning adjoining lands to the East of this parcel."3
¶6 On November 14, 2007, the Connerys sold Lot 30 to the DeSombres. Again, the deed contained a metes and bounds legal description and included the notation: "Including the right to continue to use and maintain the existing boat house and pier located near the Northwest corner of this parcel." The Boldebucks purchased Lot 29 on June 12, 2012. Their deed included a metes and bounds legal description and did not contain any reference to the pier or wet boathouse. It is undisputed that according to the metes and bounds legal descriptions contained in the parties’ deeds, which were taken from a survey completed in 2003, the pier and wet boathouse extend into Otter Lake from the DeSombres’ property.
¶7 At some point after the Boldebucks purchased their property, they began using the pier and wet boathouse when the DeSombres were absent, without the DeSombres’ consent. On June 25, 2016, the Boldebucks wrote to the DeSombres asserting that they had a right to use the pier and wet boathouse because those structures were located "substantially within [the Boldebucks’] riparian zone." The letter conceded that the DeSombres’ deed granted them a "permissive right" to use and maintain the pier and boathouse, but it stated that right was "concurrent with [the Boldebucks’] rights of ownership and use."
¶8 The DeSombres subsequently commenced this lawsuit, which asserted two claims against the Boldebucks. First, the DeSombres asked the circuit court to declare that they were the sole owners of the pier and wet boathouse, and that the Boldebucks did not have any ownership interest in those structures. Second, they sought a declaration that the pier and boathouse did not interfere with the Boldebucks’ riparian rights.
¶9 The DeSombres ultimately moved for summary judgment, which the circuit court granted. The court summarized its reasoning as follows:
The boathouse and pier are attached to the DeSombre Parcel according to the legal descriptions and surveys under which both parties took title. The DeSombres were marketed a property containing a boathouse, specifically contracted for it, and took title based on verification by survey and legal description that the boathouse was theirs. They have insured the boathouse for casualty and liability as part of their homeowner’s policy since purchase, they have been assessed and have paid taxes on the structure as part of the improvements to their parcel since purchase. They have spent money and been responsible for maintenance of the pier and boathouse since purchase. Real or personal, and however situated, the boathouse and pier are the exclusive property of the DeSombres. The Boldebucks have no basis to claim ownership of the boathouse and pier, and no right to use based on any theory they have advanced. Any encroachment of the structure into the Boldebuck riparian zone under the facts of this case does not constitute an actionable violation of riparian rights. The situation was open and obvious to the Boldebucks at the time of their purchase, a purchase they elected to make despite the existence of the boathouse and the pier, and without any basis to believe at the date of purchase that they had any legal or equitable claim to its ownership or use.
The Boldebucks now appeal the court’s summary judgment ruling.
¶10 We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle , 2007 WI App 264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. "Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented." Preloznik v. City of Madison , 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If so, we then examine the moving party’s submissions to determine whether they establish a prima facie case for summary judgment. Id. If the moving party has made a prima facie showing, we examine the opposing party’s affidavits to determine whether a genuine issue exists as to any material fact. Id.
¶11 Ultimately, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2). "Summary judgment is a drastic remedy; therefore, the moving party must clearly be entitled to judgment as a matter of law." CED Props., LLC v. City of Oshkosh , 2018 WI 24, ¶19, 380 Wis. 2d 399, 909 N.W.2d 136 (citation omitted). Accordingly, when reviewing a grant of summary judgment, we view the facts in the light most favorable to the nonmoving party, and we resolve any doubts as to the existence of a genuine issue of material fact against the moving party. Id.
¶12 The DeSombres moved for summary judgment on their claims for a declaration that: (1) they own the pier and wet boathouse; and (2) the pier and wet boathouse do not interfere with the Boldebucks’ riparian rights. It is undisputed that both the DeSombres and the Boldebucks are riparian owners of property on Otter Lake. "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. A riparian owner is accorded certain rights based upon his or her ownership of shoreline property. Id. As relevant to this case, those rights include the right to "construct a pier or similar structure in aid of navigation." Id. In addition, a riparian owner has the exclusive right to use any such pier and may therefore "eject others" who attempt to use it. See Anchor Point Condo. Owner’s Ass'n v. Fish Tale Props., LLC , 2008 WI App 133, ¶¶13-14, 313 Wis. 2d 592, 758 N.W.2d 144.
¶13 A property owner’s riparian zone is comprised of "the area that extends from riparian land waterward to the line of navigation as determined by a method that establishes riparian zone lines between adjacent riparian owners in a manner that equitably apportions access to the line of navigation." WIS. STAT. § 30.01(5r). The line of navigation, in turn, means "the depth of a navigable water that is the greater of ... [t]hree feet, as measured at summer low levels" or "[t]he depth required to operate a boat on the navigable water." Sec. 30.01(3c).
¶14 Wisconsin case law sets forth three general methods for determining the boundaries between neighboring property owners’ riparian zones. Nosek v. Stryker , 103 Wis. 2d 633, 635, 309 N.W.2d 868 (Ct. App. 1981). First, "where the course of the shore approximates a straight line and the onshore property division lines are at right angles with the shore, the boundaries are determined by simply extending the onshore property division lines into the lake." Id. This method is typically referred to as the "extended lot line method." See Borsellino v. Kole , 168 Wis. 2d 611, 614, 484 N.W.2d 564 (Ct. App. 1992). Second, if "the boundary lines on land are not at right angles with the shore but approach the shore at obtuse or acute angles ... the division lines should be drawn...
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