Movrich v. Lobermeier, No. 2015AP583

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: PATIENCE DRAKE ROGGENSACK, C.J.
• Citation: 905 N.W.2d 807,379 Wis.2d 269,2018 WI 9
• Parties: Jerome MOVRICH and Gail Movrich, Plaintiffs–Respondents, v. David J. LOBERMEIER and Diane Lobermeier, Defendants–Appellants–Petitioners.
• Decision Date: 23 January 2018
• Docket Number: No. 2015AP583

379 Wis.2d 269
905 N.W.2d 807
2018 WI 9

Jerome MOVRICH and Gail Movrich, Plaintiffs–Respondents,
v.
David J. LOBERMEIER and Diane Lobermeier, Defendants–Appellants–Petitioners.

No. 2015AP583

Supreme Court of Wisconsin.

Oral Argument: September 20, 2017
Opinion Filed: January 23, 2018

For the defendants-appellants-petitioners, there were briefs filed by Brian G. Formella and Anderson, O'Brien, Bertz, Skrenes & Golla, LLP, Stevens Point. There was an oral argument by Brian G. Formella.

For the plaintiffs-respondents, there was a brief and oral argument by Daniel Snyder, Park Falls.

An amicus curiae brief was filed on behalf of Big Cedar Lake Protection and Rehabilitation District and Wisconsin Association of Lakes, Inc. by William P. O'connor and Wheeler, Van Sickle & Anderson, S.C., Madison. There was an oral argument by William P. O'Connor.

An amicus curiae brief was filed on behalf of Wisconsin REALTORS Association by Thomas D. Larson and Wisconsin REALTORS Association, Madison.

PATIENCE DRAKE ROGGENSACK, C.J.

379 Wis.2d 275

905 N.W.2d 810

¶ 1 David and Diane Lobermeier appeal a decision of the

379 Wis.2d 276

court of appeals, affirming the circuit court's¹ 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.² 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.

¶ 2 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.

¶ 3 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. Rather, any property rights

379 Wis.2d 277

Movriches may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with Lobermeiers' property rights or the flowage easement's creation of a navigable body of water. Because the placement of a pier is inconsistent with Lobermeiers' fee simple property interest and does not arise from the flowage easement that supports only public rights in navigable waters, Movriches' private property rights are not sufficient to place a pier into or over the waterbed of the Flowage without Lobermeiers' permission based on the rights attendant to their shoreline property.

¶ 4 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.

¶ 5 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

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may use the flowage waters for recreational purposes, no private property right to construct a pier arises from the public trust doctrine.

379 Wis.2d 278

¶ 6 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.

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

I. BACKGROUND

¶ 8 This appeal concerns the tension between asserted riparian rights, ownership of property underlying a flowage, and Wisconsin's public trust doctrine. More specifically, property owners David and Diane Lobermeier appeal from a judgment granting Jerome and Gail Movrich the right to place a pier into and over Lobermeiers' property and to access Sailor Creek Flowage directly from Movriches' abutting property. Movrich v. Lobermeier, 2016 WI App 90, 372 Wis. 2d 724, 889 N.W.2d 454.

¶ 9 The Sailor Creek Flowage is a 201 acre, man-made lake located near the Town of Fifield in Price County, Wisconsin. It was created by a dam placed on Sailor Creek in 1941. At that time, a Deed of Flowage Rights was executed by Margaret Hussmann, who granted the Town of Fifield "the perpetual rights, privilege and easement to submerge, flood and/or raise the ground water elevation" of the underlying property.

379 Wis.2d 279

Over time, the property that Hussmann subjected to the flowage easement in 1941 was transferred to various persons. Some of that property was deeded to brothers David and Robert Lobermeier in 2000, while other property eventually became the Sailor Creek Flowage Subdivision, where Movriches purchased property in 2006.

¶ 10 Today, Lobermeiers own a portion of the waterbed of the Flowage that is subject to the Hussmann flowage easement. Lobermeiers' portion of the waterbed abuts Movriches' property.³ David Lobermeier and Gail Movrich are brother and sister. For a number of years the families existed in harmony, each making use of a pier on the Movrich property to moor their boats, and from which they swam and fished. In about 2011 or 2012, however, the families had a falling out, at which point Lobermeiers began to assert that they have exclusive rights to the waterbed at issue. Lobermeiers concede that the Wisconsin public trust doctrine grants Movriches, and all other members of the public, access to the Flowage's waters for navigation and recreation purposes.⁴

¶ 11 This case originally involved several properties, each of which abutted the Lobermeier

905 N.W.2d 812

waterbed property. David Lobermeier first brought an action

379 Wis.2d 280

against Robert D. McWilliams, who sought a declaration that Wisconsin's public trust doctrine granted to McWilliams the right to access Lobermeiers' waterbed property from McWilliams' abutting lot, as well as the right to install the pads of his pier directly on the bed of the Flowage, i.e., on the Lobermeier waterbed property.

¶ 12 Separately, Movriches filed a summons and complaint against Lobermeiers seeking a declaration of their right to install and maintain a pier extending from their land over the Flowage for boating and recreational purposes and their right to enter the Flowage directly from their shoreline property pursuant to their asserted riparian rights and for purposes commonly sanctioned by the public trust doctrine. These cases were consolidated and heard together in Price County circuit court.

¶ 13 Following a one-day trial, the circuit court granted judgment in favor of Movriches, declaring that they "have the right to enter the waters of the said Sailor Creek Flowage from their said real estate ... [and] to erect, maintain, and use a dock or pier anchored on their said real estate and extending over the waters of the said Sailor Creek Flowage ...." The circuit court enjoined Lobermeiers from coming upon Movriches' property and from interfering or hindering Movriches in the exercise of their rights of ownership. The circuit court limited its analysis to the public trust doctrine, concluding that the doctrine includes the right of an abutting...