2018 WI 9

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP583

COMPLETE TITLE: Jerome Movrich and Gail Movrich,

 Plaintiffs-Respondents,

 v.

David J. Lobermeier and Diane Lobermeier,

 Defendants-Appellants-Petitioners.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 372 Wis. 2d 724, 889 N.W.2d 454

PDC No: 2016 WI App 90 - Published

OPINION FILED: January 23, 2018

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 20, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Price

JUDGE: Patrick J. Madden

JUSTICES:

CONCURRED:

CONCURRED/DISSENTED: 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).

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:

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 
2

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.
2018 WI 9

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP583

(L.C. Nos. 2013CV22 & 2013CV78)

STATE OF WISCONSIN : IN SUPREME COURT

Jerome Movrich and Gail Movrich,

 Plaintiffs-Respondents,

 v.

David J. Lobermeier and Diane Lobermeier,

 Defendants-Appellants-Petitioners.

FILED

JAN 23, 2018

Diane M. Fremgen

Acting Clerk of Supreme 

Court

REVIEW of a published decision of the court of appeals. 

Affirmed in part; reversed in part. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. David and Diane 

Lobermeier appeal a decision of the 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 

 

1 The Honorable Patrick J. Madden of Price County presided.

2 Lobermeiers do not own the entire waterbed. 
No. 2015AP583

2

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 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 
No. 2015AP583

3

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 may use the flowage waters for 

recreational purposes, no private property right to construct a 

pier arises from the public trust doctrine. 

¶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 
No. 2015AP583

4

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. Over time, 

the property that Hussmann subjected to the flowage easement in 
No. 2015AP583

5

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 waterbed property. David 

 

3 The Movrich property is legally described as Lot One (1) 

of Sailor Creek Subdivision. A surveyor's description of the 

Sailor Creek Subdivision provides that the lots run "to the 

shoreline" of the Flowage and thence "along said shoreline."

4 The Flowage is navigable, meaning that it is capable of 

supporting at least light water craft at some time during the 

year. It is considered a public water pursuant to Wis. Stat. 

§ 30.10 (2013-14). It is undisputed that the public trust 

doctrine applies to the Flowage.

All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2015AP583

6

Lobermeier first brought an action 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 property 
No. 2015AP583

7

owner to place a pier on or over privately-owned land when it is 

submerged beneath navigable water. The court of appeals 

affirmed. 

¶14 Lobermeiers petitioned for review, challenging the 

court of appeals' conclusion that the public trust doctrine 

allows Movriches to access the Flowage directly from their 

abutting property or to install and maintain a pier over the 

Flowage, whether supported by posts resting on the Flowage bed 

or by flotation devices. We granted review and, for the reasons 

explained below, we now affirm in part and reverse in part.

II. DISCUSSION

A. Standard of Review

¶15 The relevant facts are not disputed. Accordingly, we 

focus on whether prior court decisions properly applied the 

principles of property law, riparian rights, and the public 

trust doctrine. These are questions of law that we 

independently review. Phelps v. Physicians Ins. Co. of Wis., 

Inc., 2009 WI 74, ¶35, 319 Wis. 2d 1, 768 N.W.2d 615; Linden v. 

Cascade Stone Co., Inc., 2005 WI 113, ¶5, 283 Wis. 2d 606, 699 

N.W.2d 189.

B. General Principles

¶16 The parties have not presented any case law discussing 

the interplay between basic property rights, riparian rights, 

and the public trust doctrine under these or similar facts, 

i.e., where the bed of a navigable body of water is privately 

owned, only in part. We address each issue in turn.
No. 2015AP583

8

1. Private Property Rights

¶17 Both the circuit court and the court of appeals 

analyzed the public trust doctrine and considered the rights of 

alleged riparian owners without first addressing the various 

types of common law property rights presented herein. We agree 

with Lobermeiers that we must begin our analysis by addressing 

their private property rights and those of Movriches, 

respectively, because both assert private property interests, 

those of the waterbed-owning Lobermeiers and those of the 

shoreline-owning Movriches. 

¶18 Lobermeiers own their submerged property in fee 

simple. "Authorities to prove that a fee-simple estate is the 

highest tenure known to the law are quite unnecessary, as the 

principle is elementary and needs no support." Lycoming Fire 

Ins. Co. of Muncy, Pa. v. Haven, 95 U.S. 242, 245 (1877). An 

owner in fee simple is presumed to be the "entire, 

unconditional, and sole owner[] of [any] buildings as well as 

the land . . . ." Id. This is true regardless of whether the 

property has positive economic or market value. See Phillips v. 

Wash. Legal Found., 524 U.S. 156, 170 (1998).

¶19 In Wisconsin, the breadth of rights accompanying a fee 

simple interest is settled law. See Walgreen Co. v. City of 

Madison, 2008 WI 80, ¶44, 311 Wis. 2d 158, 752 N.W.2d 687 

(describing the fee simple interest as the right to use, 

possess, enjoy, dispose of, exclude, or the right not to 

exercise any of these rights); ABKA Ltd. P'ship v. DNR, 2001 WI 
No. 2015AP583

9

App 223, ¶28, 247 Wis. 2d 793, 635 N.W.2d 168 ("A fee simple 

interest means 'an interest in land that, being the broadest 

interest allowed by law, endures until the current holder dies 

without heirs . . . .'"). These rights are equally reflected in

federal law.5 

¶20 The significance of property rights is reflected in 

the law of damages. One who intentionally steps from his or her

own property onto the property of another, irrespective of 

whether he or she thereby causes harm to any legally protected 

interest of the other, is liable for trespass. Grygiel v. 

Monches Fish & Game, 2010 WI 93, ¶40, 328 Wis. 2d 436, 787 

N.W.2d 6; see also Restatement (Second) of Torts § 158. 

Wisconsin law acknowledges that actual harm occurs in every 

trespass. Jacque v. Steenberg Homes, 209 Wis. 2d 605, 619, 563 

N.W.2d 154 (1997). Although consent to entry is generally a 

defense to an action for trespass, consent may later be revoked. 

Grygiel, 328 Wis. 2d 436, ¶41; Manor Enterprises, Inc. v. Vivid, 

Inc., 228 Wis. 2d 382, 394, 596 N.W.2d 828 (1999); see also

Restatement (Second) of Torts § 160. However, fee simple 

interests may be subject to certain limitations when an easement 

 

5 See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 

458 U.S. 419, 435 (1982) ("Property rights in a physical thing 

have been described as the rights 'to possess, use and dispose 

of it.'") ("The power to exclude has traditionally been 

considered one of the most treasured strands in an owner's 

bundle of property rights."). 
No. 2015AP583

10

is granted. See Borek Cranberry Marsh, Inc. v. Jackson Cty., 

2009 WI App 129, ¶¶9-11, 321 Wis. 2d 437, 773 N.W.2d 522. 

¶21 These principles of property law are crucial to our 

analysis. However, despite the consideration of private 

property rights, the presence of navigable water makes this a 

more complicated case. We keep this in mind as we address 

alleged riparian rights and the public trust doctrine.

2. Riparian Rights

¶22 Riparian rights may include "special rights to make 

use of water in a waterway adjoining [an] owner's property." 

93 C.J.S. Waters § 9. They are the "bundle of rights" that may 

be conferred upon a property owner by virtue of his contiguity 

to a navigable body of water. Mayer v. Grueber, 29 Wis. 2d 168, 

174, 138 N.W.2d 197 (1965). Riparian rights are private 

property rights, subject to and limited to some extent by the 

public trust doctrine, discussed below. R.W. Docks & Slips v. 

DNR, 2001 WI 73, ¶18, 244 Wis. 2d 497, 628 N.W.2d 781. We have 

previously recognized that common law riparian rights may 

include:

[t]he right to reasonable use of the waters for 

domestic, agricultural and recreational purposes; the 

right to use the shoreline and have access to the 

waters; the right to any lands formed by accretion or 

reliction; the right to have water flow to the land 

without artificial obstruction; the limited right to 

intrude onto the lakebed to construct devices for 

protection from erosion; and the right, now 

conditioned by statute, to construct a pier or similar 

structure in aid of navigation.
No. 2015AP583

11

Id., ¶21 (citing Cassidy v. DNR, 132 Wis. 2d 153, 159, 390 

N.W.2d 81 (Ct. App. 1986)).

¶23 The extent of riparian rights varies in accordance 

with the nature of the body of water at issue. Mayer, 29 

Wis. 2d at 173. With respect to the owner of riverfront 

property, a riparian owner may own to the thread of the stream. 

Id. However, the title of a riparian owner is qualified and 

subject to the interests of the state. Id. The "owner of land 

abutting a natural lake or pond owns to the water line only." 

Id. The lake bottom is held in trust for the people of the 

state. Id. 

¶24 In Wisconsin, there is a presumption that owning 

property abutting a natural body of water confers certain 

riparian rights. Id. at 174. However, Wisconsin common law 

also establishes that riparian rights, including rights to use 

the land beneath a body of water, are severable from basic 

property rights if the deed in question makes that severability 

clear. "[O]ne who acquires land abutting a stream or body of 

water may acquire no more than is conveyed by his deed." Id. 

In the case of a man-made body of water located wholly on the 

property of a single owner, there is no presumption in favor of 

riparian rights. Id. at 176.6 Rather, "all of the incidents of 

 

6 In Mayer v. Grueber, explained in further detail below, 

plaintiff Mayer sought an injunction to prevent Grueber from 

trespassing onto the waters of a man-made lake, the bed of which 

was entirely owned by Mayer. Mayer v. Grueber, 29 Wis. 2d 168, 

170, 138 N.W.2d 197 (1965). Grueber counter-claimed, insisting 

that as a "riparian owner" he was entitled to the beneficial use 

(continued)
No. 2015AP583

12

ownership are vested in the owner of the land" to convey as he 

or she expresses in conveyances. Id.

3. Public Trust Doctrine

¶25 Under the public trust doctrine, as a general rule, 

the State of Wisconsin "holds the beds underlying navigable 

waters in trust for all of its citizens." Muench v. Public 

Serv. Comm'n, 261 Wis. 492, 501, 53 N.W.2d 514. However, a 

riparian owner on the bank of a navigable stream may have a 

qualified title in the stream bed to its center. Id. at 502. 

The public rights protected under the public trust doctrine 

include boating, swimming, fishing, hunting and preserving 

scenic beauty. Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, 

¶72, 350 Wis. 2d 45, 833 N.W.2d 800.

¶26 The doctrine can be traced back to the Northwest 

Ordinance of 1787, which set up the machinery for the government 

of the Northwest Territory after the Revolutionary War. 

Wisconsin Const. art. IX, § 1, adopted by the Territorial 

Convention on February 17, 1848, adopted verbatim the words of 

the Northwest Ordinance with respect to navigable waters:

The state shall have concurrent jurisdiction on all 

rivers and lakes bordering on this state so far as 

such rivers or lakes shall form a common boundary to 

the state and any other state or territory now or 

hereafter to be formed, and bounded by the same; and 

the river Mississippi and the navigable waters leading 

into the Mississippi and St. Lawrence, and the 

carrying places between the same, shall be common 

highways and forever free, as well to the inhabitants 

 

and enjoyment of the lake. Id. 
No. 2015AP583

13

of the state as to the citizens of the United States, 

without any tax, impost or duty therefor.

Muench, 261 Wis. 492 at 499-500.

¶27 Although the doctrine was originally intended to apply 

only to water that was navigable per se, "[t]his court has long 

held that the public trust in navigable waters 'should be 

interpreted in the broad and beneficent spirit that gave rise to 

it in order that the people may fully enjoy the intended 

benefits.'" Rock-Koshkonong Lake Dist., 350 Wis. 2d 45, ¶72, 

(citing Diana Shooting Club v. Husting, 156 Wis. 261, 271, 145 

N.W. 816 (1914)). "Broadly interpreting the public trust has 

resulted in recognition of more than just commercial 

navigability rights. Protection now extends to 'purely 

recreational purposes such as boating, swimming, fishing, 

hunting, . . . and . . . preserv[ing] scenic beauty.'" Id. The 

doctrine traditionally applies to all areas within the ordinary 

high water mark of the body of water in question. R.W. Docks & 

Slips, 244 Wis. 2d 497, ¶19.

¶28 The public trust doctrine does not convey private 

property rights. Rather, for at least a century, we have 

recognized the public trust doctrine as a limit on riparian 

rights. Wisconsin common law has established that the right to 

place structures for access to navigable water is "qualified, 

subordinate, and subject to the paramount interest of the state 

and the paramount rights of the public in navigable waters." 

Id., ¶22. This is true even where the bed is privately held, as 

long as the body of water is public, navigable and created by 
No. 2015AP583

14

use of public waters. See Klingeisen v. DNR, 163 Wis. 2d 921, 

927-28, 472 N.W.2d 603 (Ct. App. 1991).

¶29 The legislature, as trustee, is empowered to adopt 

regulations to protect public rights established under the 

public trust doctrine. See Ashwaubenon v. Public Serv. Comm'n, 

22 Wis. 2d 38, 125 N.W.2d 647 (1963); State v. Bleck, 114 

Wis. 2d 454, 465, 338 N.W.2d 492 (1983). Under this authority, 

the legislature has enacted provisions regulating the placement 

of any structure on the bed of navigable waters, unless placed 

under permit or other legislative authority. See Wis. Stat. 

§§ 30.12-30.13. However, where a waterbed is privately held, 

the state has no authority to compel private property owners to 

accept pier placement. See Mayer, 29 Wis. 2d at 170. 

C. Application

1. Common Law Property Rights

¶30 The circuit court and court of appeals conducted their 

analyses based on the assumption that the public trust doctrine 

controls the outcome of this case. However, as noted above, 

neither the public trust doctrine nor riparian rights principles 

addresses private property interests between abutting property 

owners. The presence of navigable water does not cancel private 

property rights, although it may modify those rights. 

¶31 We begin by examining the ownership interests of

Lobermeiers and Movriches, respectively. Lobermeiers own a 

portion of the waterbed of the Flowage, purchased June 19, 2000. 

At the time of purchase, David Lobermeier and his brother, 
No. 2015AP583

15

Robert, were warrantied that there were no easements, 

encroachments, walkways, or driveways affecting the property, 

except those listed in the commitment, and that no claims of 

easements, encroachments, walkways, or driveways had been made 

during the previous owner's ownership. Movriches own Lot One 

(1) of the Sailor Creek Subdivision. The boundary between 

Movriches' property and Lobermeiers' property is the shoreline 

of the Flowage, as described in the surveyor's certificate 

admitted at trial.

¶32 In support of Lobermeiers' argument that they may 

prohibit an abutting lot owner from placing a pier on or over 

the Flowage, or from accessing the Flowage directly from their 

abutting property, Lobermeiers cite to numerous state and 

federal cases that lay the foundation of common law private 

property rights.7 Movriches contend that these cases are 

 

7 Loretto, 458 U.S. at 434 ("The power to exclude has 

traditionally been considered one of the most treasured strands 

in an owner's bundle of property rights."); Lycoming Fire Ins. 

Co. of Muncy, Pa. v. Haven, 95 U.S. 242, 245 (1877) (concluding 

that landowners under a fee simple title are presumed to be the 

"entire, unconditional, and sole owners of the buildings as well 

as the land . . . ."); Walgreen Co. v. City of Madison, 2008 WI 

80, ¶44, 311 Wis. 2d 158, 752 N.W.2d 687 (concluding that fee 

simple rights include the right of exclusion); Christensen v. 

Mann, 187 Wis. 567, 581, 204 N.W. 499 (1925) ("[P]roperty rights 

extend upwards from the surface to an unlimited extent

. . . ."); Burnham v. Merch. Exch. Bank, 92 Wis. 277, 280, 66 

N.W. 510 (1896) (holding that courts must protect the right of 

the owner to his property); Brownell v. Durkee, 79 Wis. 658, 

663, 48 N.W. 241 (1891) (concluding that property rights should 

be "protected and secured as far as possible."); ABKA Ltd. 

P'ship v. DNR, 2001 WI App 223, ¶28, 247 Wis. 2d 793, 635 

N.W.2d 168 (concluding that an interest in fee simple is the 

broadest interest allowed by law).
No. 2015AP583

16

inapposite. While it is true that none of them addresses 

shoreline property on a flowage, they all are relevant in 

addressing principles of property law, which, as we have 

acknowledged, must be considered.

¶33 Under both Wisconsin and federal law, a fee simple 

estate is "the highest tenure known to the law." Lycoming Fire 

Ins. Co. of Muncy, Pa., 95 U.S. at 245. Among other rights, an 

owner in fee simple enjoys a basic right to exclude. It is 

undisputed that were this contest between two upland property 

owners, any encroachment by one onto the property of the other 

would be trespass. Jacque, 209 Wis. 2d at 617-18. Lobermeiers'

property interests are subject to certain protections, as are 

the public's interests in navigable water. See Muench, 261 Wis. 

at 501-02. Therefore, unless riparian rights or the public 

trust doctrine modify those rights, Movriches may not interfere 

with the property rights of Lobermeiers. We therefore turn to 

whether Movriches are riparian owners and what effect the public 

trust doctrine has on Movriches' and Lobermeiers' respective 

rights.

2. Riparian Rights

¶34 The Movriches allege that by virtue of owning "to the 

shoreline" of the Flowage, they are riparian owners and 

therefore entitled to all of the "amenities of waterfront 

property," including the right to install and maintain a pier 

extending from their property over the waters of the Flowage. 
No. 2015AP583

17

¶35 As we set forth in Mayer v. Grueber, riparian rights 

vary depending on the body of water at issue. 

A perusal of the cited cases shows that the owner of 

property on a stream presumptively holds title to the 

middle of the watercourse. The cases, however, are in 

accord that the riparian rights and title to the land 

under the water are severable if the deed makes that 

limitation clear. In the case of natural lakes and 

bodies of water, the adjacent landowner owns only to 

the shore line; the lake bottom is held in trust for 

the people of the state. In the case of artificial 

bodies of water, all of the incidents of ownership are 

vested in the owner of the land. An artificial lake 

located wholly on the property of a single owner is 

his to use as he sees fit, provided, of course, that 

the use is lawful. He may if he wishes reserve to 

himself or his assigns the exclusive use of the lake 

or water rights.

Mayer, 29 Wis. 2d at 176.

¶36 It is not disputed that the Flowage was created by the 

damming of Sailor Creek, a navigable public body of water, or 

that the Flowage is subject to the public trust doctrine. What 

is unclear, however, is whether, simply by virtue of their 

property abutting the Flowage, Movriches are entitled to the 

full "bundle of [riparian] rights" when the portion of the 

waterbed of the Flowage adjacent to their property is privately 

held. Id. at 174. 

¶37 In Mayer, we considered whether defendant, Grueber, 

who owned property to the shoreline of an artificial lake, the 

bed of which was entirely owned by Mayer, was entitled to 

riparian rights despite the language of his deed. We concluded

that he was not. First, the deed in question described the 

boundary of Grueber's property as "along the easterly bank." 
No. 2015AP583

18

Id. at 175. We concluded that "riparian rights and title to the 

land under the water are severable if the deed makes that 

limitation clear." Id. at 176. Second, Grueber was 

specifically told that ownership of the tract would not entitle 

him or his wife to use of the lake. Id. at 172. After the 

Gruebers purchased the land and commenced using the lake for 

recreational purposes, they were accused of trespass by the 

Mayers and ordered off the lake. Id. at 172-73. 

¶38 Movriches argue that Mayer should be limited to 

situations where the entire lakebed is privately owned, and that 

their riparian rights arise out of ownership of shoreline 

property without regard to the ownership of the waterbed. 

Lobermeiers, however, argue the court of appeals failed to 

express or articulate why owning the entire portion of a 

waterbed matters. Instead, they assert that their private 

property rights are no less important than Movriches' alleged 

riparian rights, and that the public trust doctrine cannot be 

used as a basis for allowing an abutting property owner to 

install a pier onto or over the Flowage, or to allow Movriches 

to access Lobermeiers' property directly from their abutting 

lot. Both parties have overstated their cases. 

¶39 While we agree that the facts in Mayer differ from 

those presented herein, that difference is insufficient to 

extinguish Lobermeiers' fee simple interest in the waterbed that 

abuts Movriches' shoreline property. As we have explained, the 
No. 2015AP583

19

public trust doctrine does not convey private property rights.8

Rather, it establishes rights of use of navigable waters that 

are held in trust for all members of the public. 

3. Extent of Movriches' Rights

¶40 Movriches claim that because their property borders on

the shoreline of the Flowage they have riparian rights 

incidental to property ownership that borders a naturally 

occurring body of water, such as installing and maintaining a 

pier for ordinary boating and recreational purposes.

¶41 First, they argue that the property law cited by 

Lobermeiers is inapposite and does not stand for the proposition 

that the owner of a flowage waterbed has the right to exclude 

access for pier placement. As explained above, we disagree, 

because underlying legal principles applicable to adjacent 

property owners are not extinguished and must be considered. On 

the contrary, the authorities cited by Movriches——namely, RockKoshkonong Lake Dist. v. DNR, Muench v. Public Serv. Comm'n,

Doemel v. Jantz, and Diana Shooting Club v. Husting——do not 

support the proposition that Lobermeiers' fee simple title is 

overridden by Movriches alleged riparian rights.

 

8 As discussed above, the public trust doctrine has been 

"expansively interpreted to safeguard the public's use of 

navigable waters for purely recreational purposes such as 

boating, swimming, fishing, hunting, recreation, and to preserve 

scenic beauty." R.W. Docks & Slips v. State of Wis., 2001 WI 

73, ¶19, 244 Wis. 2d 497, 628 N.W.2d 781 (2001). 
No. 2015AP583

20

¶42 In Doemel v. Jantz, we addressed whether a member of 

the public has a lawful right to enter and travel upon that 

portion of Lake Winnebago between the ordinary high and low 

water marks. In answering this question, we defined the scope 

of riparian rights and quoted, with approval, the following 

statement of law:

Those [riparian] rights are not common to the citizens 

at large, but exist as incidents to the right of soil 

itself contiguous to and attingent on the water. In 

such ownership [of the shoreland], they have their 

origin, and not out of the ownership of the bed, and 

they are the same whether the riparian owner owns the 

soil under the water or not.

Doemel, 180 Wis. at 231.

¶43 Movriches read this statement to mean that by virtue 

of owning to the shoreline of the Flowage, they are entitled to 

the full range of riparian rights.9 However, in Doemel we 

addressed an entirely different type of water, both in its 

nature and in ownership. Unlike the Flowage, Lake Winnebago is 

a naturally occurring lake. Although its water levels were 

artificially raised in 1850 and 1930, it is not man-made and, as 

far as we can tell, no portion of Lake Winnebago's waterbed is 

privately owned. Therefore, because there was no conflict 

between shoreline property and a privately-owned waterbed, 

 

9 Specifically, in Doemel we held that "[t]he riparian owner 

also has the right to build piers, harbors, wharves, booms, and 

similar structures . . . incident to the ownership of the 

upland." Doemel v. Jantz, 180 Wis. 225, 231, 193 N.W. 393

(1923). 
No. 2015AP583

21

Doemel is not dispositive. Rather, we read Doemel as addressing 

the range of riparian rights appurtenant to property ownership 

on natural, public, navigable lakes.

¶44 In Diana Shooting Club, we considered whether the 

right to hunt and fish on navigable waters is limited where the 

title to the land covered by the waters is privately held. We 

concluded that the public trust doctrine "should be interpreted 

in the broad and beneficent spirit that gave rise to it in order 

that the people may fully enjoy the intended benefits." Diana 

Shooting Club, 156 Wis. at 271. In so holding, we explained 

that riparian owners, although they may hold qualified title to 

the thread of a stream or river, may not interfere with public 

navigation or other rights incident to the public trust 

doctrine. This remains good law. However, while Diana Shooting 

Club spoke specifically to the Rock River, in the case at hand 

we are tasked with determining what rights the owners of land on 

which a man-made flowage now rests may assert against owners 

whose property ends at the shoreline. Diana Shooting Club is 

not helpful in deciding that question. 

¶45 For similar reasons, we conclude that Movriches' 

reliance on Rock-Koshkonong and Muench is misplaced. In RockKoshkonong, we were tasked with determining, among other issues, 

whether the Wisconsin Department of Natural Resources (DNR) 

properly relied on the public trust doctrine for its authority 

to protect non-navigable land and non-navigable water above the 

ordinary high water mark. Rock-Koshkonong, 350 Wis. 2d 45, ¶11. 
No. 2015AP583

22

We concluded that, in attempting to extend its public trust 

jurisdiction beyond navigable waters to non-navigable waters and 

land, the DNR moved beyond the language of the Constitution. 

Id., ¶77. 

¶46 Movriches cite to paragraph 78 of Rock-Koshkonong, in 

which we wrote that riparian ownership runs to the center or 

thread of a stream as a "qualified title in the stream beds." 

Id., ¶78. However, the Movrich property does not border a 

stream; it borders a 201 acre flowage. Paragraph 78 provides no 

support for Movriches' assertion that they have the right to 

build a pier upon the Lobermeiers' property; it deals solely 

with the rights of the public under the public trust doctrine. 

¶47 Some may read Minehan v. Murphy, 149 Wis. 14, 134 N.W. 

1130 (1912), as giving assistance to Movriches. However, 

Minehan was an action in ejectment from the waterbed of 

navigable waters. Id. at 14. There, Minehan's title described 

her western boundary as "the center line of the creek." Id. at 

14-15. She sought to eject Murphy from encroaching on her side 

of the creek's center line. Id. at 15. The question on which 

the case turned was whether the navigable water that bordered 

Minehan's land was a lake or a river. Id. at 16. If it was a 

river, she had rights to the center line; if it was a lake, she 

did not. The navigable water was determined to be a river, and 

Minehan won. Id. at 17. However, Minehan has nothing to do 

with whether Movrich has the right to place a pier on 

Lobermeiers' property. 
No. 2015AP583

23

¶48 Haase v. Kingston Co-operative Creamery Ass'n, 212 

Wis. 585, 250 N.W. 444 (1933), sets aside any misinterpretation 

of Minehan that would support a taking of private property 

rights due to a flowage upon private lands. Id. at 588. Haase

was an action to recover for ice taken by Kingston from a 

flowage over lands Haase owned in fee. Id. at 586. Kingston 

claimed that due to the navigable waters over Haase's land for 

an extended time, title to the waterbed had passed to the state 

and, therefore, harvesting ice was part of the public's use of 

navigable waters. Id. We disagreed with Kingston's contention, 

and concluded that "title to the ice formed on this pond was in 

the plaintiff as the owner of the land beneath the same, and he 

is entitled to recover the value of the ice taken by the 

defendant." Id. at 589.

¶49 Finally, in Muench we traced the evolution of the 

public trust doctrine to determine whether the Public Service 

Commission was required to make findings as to whether a 

proposed dam would violate the doctrine. Again, we stated that 

private title to the waterbed underlying navigable waters is 

qualified and subject to the public's right to use and enjoy the 

water. Muench, 261 Wis. at 504-05. In other words, the owner 

of a waterbed may not use his or her property in such a way as 

to interfere with public rights. What we did not say was that 

the owner of a waterbed may not exercise his or her property 

rights in a way that interferes with another property owner's 

assertion of riparian rights.
No. 2015AP583

24

¶50 In short, Movriches argue that these cases (and 

others) establish their right as riparian owners, and, 

independently, under the public trust doctrine, to install and 

maintain a pier anchored on their property and extending over or 

into the Lobermeiers' property. This reasoning completely 

ignores the property rights of Lobermeiers, including their 

right to exclude. As the United States Supreme Court has 

written:

[A]n owner suffers a special kind of injury when a 

stranger directly invades and occupies the owner's 

property . . . . [P]roperty law has long protected an 

owner's expectation that he will be relatively 

undisturbed at least in the possession of his 

property. To require, as well, that the owner permit 

another to exercise complete dominion literally adds 

insult to injury.

Loretto, 458 U.S. at 436-37. 

¶51 Furthermore, both state and federal jurisprudence 

conclude that the common law property right to exclude applies 

both above and below a property's physical surface. See

Loretto, 458 U.S. at 436 n.13 ("[A]n owner is entitled to the 

absolute and undisturbed possession of every part of the 

premises, including the space above, as much as a mine 

beneath."); Christensen v. Mann, 187 Wis. at 581 ("As property 

rights extend upwards from the surface to an unlimited extent, 

they also extend downwards into the soil, . . . ."). Moreover, 

we have consistently held that "due regard should be had to the 

rights which the owner has to his property, and that these 
No. 2015AP583

25

rights should be protected and secured as far as possible."

Brownell, 79 Wis. at 663. 

¶52 Movriches also argue that they had the expectation 

that their property would include riparian rights, specifically 

the right to install a pier. First, they argue their property 

was marketed and sold as a "waterfront lot," and that at the 

time of purchase many of the properties on the Flowage 

maintained "open and obvious" piers. Second, they claim they 

purchased this lot specifically because it was a shoreline 

property, and for a period of years thereafter they made use of 

the Flowage by fishing, using a pier to moor their boat, 

swimming, and kayaking. These arguments may have had arguable 

merit if Movriches had purchased their property from Lobermeiers 

or if they had obtained an easement or license from Lobermeiers. 

However, neither of these events occurred. Furthermore, their 

arguments ignore Mayer's clear directive that "one who acquires 

land abutting a stream or body of water may acquire no more than 

is conveyed by his deed." Mayer, 29 Wis. 2d at 174. 

¶53 The original conveyance given by Margaret Hussman to 

the Town of Fifield on September 13, 1941, did not convey any 

ownership interest in her land. Rather, it conveyed a type of 

easement to permit water to flow on her land. Borek Cranberry 

Marsh, 321 Wis. 2d 437, ¶¶9-11. 

¶54 When Movriches took title to their land, the legal 

description on their deed made no reference to riparian rights. 

Meanwhile, the surveyor's certificate clearly indicated that 
No. 2015AP583

26

their property extended only "to the shoreline" of the Flowage. 

Although they claim they purchased the lot with the intention of 

maintaining a pier, they did not purchase their lot from 

Lobermeiers, and their deed describes no legal right, title, or 

interest in the flowage waterbed. 

¶55 We conclude that, as to the pier issue, Movriches have 

failed to establish that they are entitled to those riparian 

rights that are incidental to property ownership along a 

naturally occurring body of water where the lakebed is held in 

trust by the state or that the public trust doctrine creates an 

exception to Lobermeiers' property rights in the waterbed that 

is sufficient for placement of Movriches' pier on Lobermeiers' 

property. Therefore, Lobermeiers may prevent Movriches from 

installing a pier onto or over Lobermeiers' property without 

their permission. 

4. Movriches as Members of the Public

¶56 Were these properties both upland, Movriches would be 

unable to step from their property onto Lobermeiers' property 

without trespassing. Jacque, 209 Wis. 2d at 617-18. Here, 

however, Lobermeiers' property is submerged beneath a public 

flowage that is indisputably subject to the public trust 

doctrine. This qualifies Lobermeiers' rights in regard to 

public use. Therefore, we agree that Movriches, as members of 

the public, are entitled to access and exit from the Flowage by 

way of their own shoreline property for purposes consistent with 

the public trust doctrine, e.g. swimming, fishing, and boating. 
No. 2015AP583

27

¶57 Lobermeiers ask us to conclude that this case is 

analogous to Mayer, where we held that because defendant Grueber 

had no ownership rights in the bed of the lake at issue, "he 

ha[d] no other rights in the waters over the bed of the lake 

unless he acquired those rights by prescription or adverse 

possession." Mayer, 29 Wis. 2d at 176. However, Mayer is 

distinguishable because the public trust doctrine did not apply 

in Mayer. Accordingly, we conclude that where the public trust 

doctrine applies to the body of water, an abutting property 

owner's rights are sufficient to access and exit the water. 

However, while Movriches may access and exit the Flowage from 

their own property for recreation purposes, Lobermeiers may not 

access or exit the Flowage except through the public access or 

with the permission of an owner of property bordering the 

Flowage.

III. CONCLUSION

¶58 There are three issues presented in this review. 

First, 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 where the lakebed is held in trust by the state. 

Rather, any rights 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 interest and 
No. 2015AP583

28

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. 

¶59 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 Flowage whose waterbed 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. 

¶60 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. 
No. 2015AP583

29

¶61 Third, we consider whether the 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. 

¶62 Accordingly, we affirm the court of appeals in part 

and reverse it in part.

By the Court.—The decision of the court of appeals is 

affirmed in part; reversed in part.
No. 2015AP583.ssa

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¶63 SHIRLEY S. ABRAHAMSON, J. (concurring in part, 

dissenting in part). I join Justice Rebecca G. Bradley's 

separate writing except for Part II. 
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1

¶64 REBECCA GRASSL BRADLEY, J. (concurring in part; 

dissenting in part). Riparian rights in Wisconsin are sacred.1 

For many, waterfront property in Wisconsin provides more than

merely a place to live——it affords a lifestyle. The proverbial 

cottage "up north" offers the opportunity for fishing off the 

pier in the morning, waterskiing with children or grandchildren 

in the afternoon, and an early evening ride on the pontoon boat 

with friends and neighbors. None of this is possible absent 

riparian rights. Traditionally, these rights have included "the 

right to build piers, harbors, wharves, booms, and similar 

structures, in aid of navigation, and such right is also one 

which is incident to the ownership of the upland." Doemel v. 

Jantz, 180 Wis. 225, 231, 193 N.W. 393 (1923). The majority 

opinion sweeps away these cherished and longstanding property 

rights and extinguishes riparian rights for those with cottages 

or homes on Wisconsin's waters called flowages.

 

1 "Riparian" is defined as "relating to or living or located 

on the bank of watercourse (as a river or stream) or sometimes a 

lake." Webster's Third New International Dictionary of the 

English Language 1960 (3d ed. 1986). "Sacred" as used in this 

context, as in other riparian rights cases, is used to describe 

something secured against violation or infringement rather than 

in the religious sense. See, e.g., Chapman v. Oshkosh & M.R.R. 

Co., 33 Wis. 629, 637 (1873) ("And he holds every one of these 

[riparian] rights by as sacred a tenure as he holds the land 

from which they emanate."); Avery v. Fox, 2 F. Cas. 245, 247 

(C.C.W.D. Mich. 1868) ("This right of private persons to the use 

of water as it flows by or through their lands, in any manner 

not inconsistent with the public easement, is as sacred as is 

the right of a person to his land, his house, or his personal 

property.").
No. 2015AP583.rgb

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¶65 The issues before this court are (1) whether Jerome 

and Gail Movrich may maintain a pier resting over David and 

Diane Lobermeiers' flowage bed property either as part of their 

riparian rights or under the public trust doctrine, and (2) 

whether the Movriches have the right to cross the Lobermeiers' 

flowage bed from their own property to use and enjoy the flowage 

waters for recreational purposes. As to the first issue, the 

majority reverses the court of appeals, concluding the 

Lobermeiers own the flowage bed in fee simple absolute, 

entitling them to exclude the Movriches from erecting a pier. 

As to the second issue, the majority affirms the court of 

appeals and holds that the Movriches nevertheless have the right 

to access and enjoy the flowage bed from their property pursuant 

to the public trust doctrine.

¶66 I agree with the majority's conclusion that the 

Movriches may access the flowage from their property; I too 

would affirm the court of appeals on this issue.2 I disagree, 

however, with the majority's conclusion that the Movriches are 

prohibited from erecting a pier. In defining the Lobermeiers' 

property rights in terms of fee absolute ownership, the majority 

ignores the most salient fact of this case: the presence of 

navigable water over the Lobermeiers' property. The presence of 

navigable water for over three quarters of a century alters the 

 

2 See also deNava v. DNR, 140 Wis. 2d 213, 222, 409 

N.W.2d 151 (Ct. App. 1987) ("Since the riparian owner has the 

exclusive right of access to and from navigable waters to his 

shore, the riparian owner has exclusive riparian rights.").
No. 2015AP583.rgb

3

Lobermeiers' property rights in the waterbed, subordinating them 

to the riparian rights of the Movriches and the rights of the 

public under the public trust doctrine. Accordingly, I would 

affirm the court of appeals on this issue, although I would 

clarify that riparian rights are independent private property 

rights, which are not conferred under the public trust doctrine. 

¶67 The majority opinion overlooks the interplay between 

private property rights, riparian rights and the public trust 

doctrine. Although separate and distinct, these competing 

rights intertwine and the majority opinion errs in its rigid 

approach toward applying them to the Movriches' and the 

Lobermeiers' property interests. The majority adopts an 

unprecedented holding that a fee simple interest in land 

submerged by water cancels riparian rights presumptively 

recognized under the common law for at least 140 years. The 

consequences of what began as a family squabble are not confined 

to the parties before us but fundamentally transform property 

rights for thousands of Wisconsin property owners along hundreds 

of flowages.3 Such a dramatic change in the law should be the 

legislature's prerogative, not that of the four justices 

comprising the majority.

¶68 Ultimately, I conclude the Lobermeiers' title to a 

portion of the waterbed beneath the Sailor Creek Flowage is 

qualified by the existence of navigable water; the Movriches are 

entitled to erect and maintain a pier as part of the bundle of 

 

3 See generally Wis. Dep't of Nat. Res., Wisconsin Lakes

(2009), http://dnr.wi.gov/lakes/lakebook/wilakes2009bma.pdf.
No. 2015AP583.rgb

4

rights they enjoy as riparian owners; and the public trust 

doctrine confers rights on the public to use the flowage. 

Accordingly, I respectfully concur in part and dissent in part.

I

¶69 From its beginnings, Wisconsin prioritized public 

access to the watercourses across the state. This preference is 

richly embodied in the public trust doctrine, which finds roots 

in the Northwest Ordinance and materialized upon statehood 

through the adoption of Article IX, Section 1 of the Wisconsin 

Constitution.4 Under the public trust doctrine, the state holds 

the waters and beds of navigable lakes in trust for all of its 

 

4 "The United States [S]upreme [C]ourt in Barney v. Keokuk

(1876), 94 U.S. 324 . . . declared that the individual states 

have the right to determine for themselves the ownership of land 

under navigable waters." Rock-Koshkonong Lake Dist. v. DNR, 

2013 WI 74, ¶79, 350 Wis. 2d 45, 833 N.W.2d 800 (quoting Muench 

v. Pub. Serv. Comm'n, 261 Wis. 501, 501, 53 N.W.2d 514, adhered 

to on reh'g, 261 Wis. 492, 55 N.W.2d 40 (1952)). Article IX, 

Section 1 states: "The state shall have concurrent jurisdiction 

on all rivers and lakes bordering on this state so far as such 

rivers or lakes shall form a common boundary to the state and 

any other state or territory now or hereafter to be formed, and 

bounded by the same; and the river Mississippi and the navigable 

waters leading into the Mississippi and St. Lawrence, and the 

carrying places between the same, shall be common highways and 

forever free, as well to the inhabitants of the state as to the 

citizens of the United States, without any tax, impost or duty 

therefor."
No. 2015AP583.rgb

5

citizens.5 Conversely, the public trust doctrine has been 

interpreted to "give[] riparian owners along navigable streams a 

qualified title in the stream beds to the center of the stream, 

while the state holds the navigable waters in trust for the 

public. In reality, the state effectively controls the land 

under navigable streams and rivers without actually owning it."6 

Rock-Koshkonong Lake Dist. v. DNR, 2013 WI 74, ¶78, 350 

Wis. 2d 45, 833 N.W.2d 800. "The rule is different with respect 

to the beds under streams[ ] in part because streams can change 

course, streams can become unnavigable over time, and navigable 

streams can be very narrow and shallow, so that 

state ownership of stream beds could be problematic and 

impractical." Id., ¶82 (footnote omitted).

 

5 The doctrine was "originally designed to protect 

commercial navigation," but its applicability has since "been 

expanded to safeguard the public's use of navigable waters for 

purely recreational and nonpecuniary purposes." State v. Bleck, 

114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983) (citing Muench, 261 

Wis. 492); see also Diedrich v. N. W. U. Ry. Co., 42 Wis. 248 

(1877); Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84 

N.W. 855 (1901); Joseph D. Kearney & Thomas Merrill, The Origins 

of the American Public Trust Doctrine: What Really Happened in 

Illinois Central, 71 Univ. Chic. L. Rev. 799 (2004). "The 

legislature has the primary authority to administer the public 

trust for the protection of the public's rights, and to 

effectuate the purposes of the trust." Hilton ex rel. Pages 

Homeowners' Ass'n v. DNR, 2006 WI 84, ¶19, 293 Wis. 2d 1, 717

N.W.2d 166 (citing Bleck, 114 Wis. at 465).

6 "It is said that the controlling distinction between a 

stream and a lake or pond is that in the one case the water has 

a natural motion,——a current,——while in the other the water is, 

in its natural state, substantially at rest, and this entirely 

irrespective of the size of the one or the other." Ne-Pee-Nauk 

Club v. Wilson, 96 Wis. 290, 295, 71 N.W. 661 (1897) (citation 

omitted).
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6

¶70 The public trust doctrine applies to lakes and streams 

that are "navigable in fact for any purpose." Wis. Stat. 

§ 30.10 (providing that lakes and streams, if navigable in fact, 

are public waterways); see State v. Bleck, 114 Wis. 2d 454, 459-

60, 338 N.W.2d 492 (1983). In the absence of a legislative 

declaration applying specifically to a certain type of 

watercourse, "navigability is a question of fact." Klingeisen 

v. DNR, 163 Wis. 2d 921, 931, 472 N.W.2d 603 (Ct. App. 1991) 

(citing Angelo v. Railroad Comm'n, 194 Wis. 543, 552, 217 

N.W. 570 (1928)) (holding that "[t]he public trust doctrine, to 

be effective, must also extend to public, artificial waters that 

are directly and inseparably connected with natural, navigable 

waters"). A finding of navigability in fact is a fairly low bar 

to meet and thousands of waterways in Wisconsin are considered 

navigable. Here, it is not disputed that the Sailor Creek 

Flowage is navigable. Majority op., ¶10, n.4.

¶71 If a body of water is navigable in fact, then its use 

is subject to the public trust doctrine, which permits all 

people to use the waters in aid of navigation and for hunting, 

fishing, and other recreational purposes. Diedrich v. Nw. Union 

Ry. Co., 42 Wis. 248, 264 (1877); Illinois Steel Co. v. Bilot, 

109 Wis. 418, 425, 84 N.W. 855 (1901); Diana Shooting Club v. 

Husting, 156 Wis. 261, 271-73, 145 N.W. 816 (1914). If a body 

of water is not navigable, "the public has no easement; and the 

riparian owner may, in general, put his estate under the water 

to any proper use he may please, not infringing upon the rights 
No. 2015AP583.rgb

7

of other riparian owners, and not violating any public law." 

Diedrich, 42 Wis. at 264.

¶72 The applicability of the public trust doctrine does 

not purport to give a riparian owner more rights than those of 

the public; indeed, the public trust doctrine does not confer 

riparian rights at all. Riparian rights exist under the common 

law as private property rights, independent of and subject to 

the public trust doctrine. Indeed, the public's right to use 

the waters for purposes recognized under the public trust 

doctrine may supersede a riparian owner's various rights of use. 

Bleck, 114 Wis. 2d at 467 ("[Riparian] rights, however, are 

still subject to the public's paramount right and interest in 

navigable waters."). Nevertheless, by virtue of owning property 

on the banks of navigable water, the public trust doctrine puts 

a riparian owner's exercise of otherwise public rights in a 

unique position.

[A] riparian owner upon navigable water, whether or 

not he own the soil usque ad medium filum aquæ, and 

unless prohibited by local law, has a right to 

construct in shoal water, in front of his land, proper 

wharves or piers, in aid of navigation, and at his 

peril of obstructing navigation, through the water far 

enough to reach actually navigable water; this being 

held to further the public use of the water, to which 

the public title under the water is subordinate; and 

therefore to be, in the absence of prohibition, 

passively licensed by the public, and not a 

pourpresture.
No. 2015AP583.rgb

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Diedrich, 42 Wis. at 262 (1877).

7

¶73 If the Lobermeiers owned the entire waterbed beneath 

the flowage, the Movriches would not be able to maintain and 

erect a pier because they would enjoy no riparian rights under 

the common law. Mayer v. Grueber, 29 Wis. 2d 168, 176, 138 

N.W.2d 197 (1965). Of course, the owner of land who creates an 

artificial body of water not originating from natural, navigable 

water may permit members of the public, as well as owners of 

land abutting the waterbody, to use the water but under those 

circumstances such rights of use arise solely from the 

prerogative of the waterbed owner rather than common law 

riparian rights or the public trust doctrine. See id. (citing 

Haase v. Kingston Coop. Creamery Ass'n, 212 Wis. 585, 588, 250 

N.W. 444 (1933)). However, the Lobermeiers own only a portion 

of the waterbed, the public trust doctrine applies to the 

flowage because it originates from the public, natural, and 

navigable waters of Sailor Creek, and the Movriches have a 

fundamental right to place a pier in the water as riparian 

owners whose land abuts natural, navigable waters.

¶74 "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 

 

7 "Usque ad medium filum aquæ" means "up to the middle of 

the stream." Usque Ad Filum Aquæ, Black's Law Dictionary (1st 

ed. 1891). A "pourpresture," also spelled "purpresture," is 

"[a]n inclsoure by a private party of a part of that which 

belongs to and ought to be open and free to the public at 

large." Purpresture, Black's Law Dictionary (1st ed. 1891).
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(citing Ellingsworth v. Swiggum, 195 Wis. 2d 142, 148, 536 

N.W.2d 112 (Ct. App. 1995)) (emphasis added); see also Diedrich, 

42 Wis. at 262 (1877) ("Riparian rights proper are held to rest 

upon title to the bank of the water, and not upon title to the 

soil under the water."); Doemel v. Jantz, 180 Wis. 225, 230, 193 

N.W. 393 (1923); Mayer v. Grueber, 29 Wis. 2d 168, 173, 138 

N.W.2d 197 (1965) ("Riparian land is land so situated with 

respect to a body of water that, because of such location, the 

possessor of the land is entitled to the benefits incident to 

the use of the water." (Citations omitted.)); Stoesser v. Shore 

Drive P'ship, 172 Wis. 2d 660, 665, 494 N.W.2d 204 (1993) 

(citing 78 Am. Jur. 2d Waters § 260 (1975)). Riparian rights

"are not dependent upon the ownership of the soil under the 

water, but upon his title to the banks." Doemel, 180 

Wis. at 230 (first citing Diedrich, 42 Wis. at 248; then citing 

Delaplaine v. C.& N.W. Ry. Co., 42 Wis. 214 (1877); then citing 

Green Bay, etc., Co. v. Kaukauna Water Power Co., 90 Wis. 370 

(1895); then citing State ex rel. Wausau St. Ry. Co. v. 

Bancroft, 148 Wis. 124, 134 N.W. 330 (1912)).

¶75 A riparian owner is presumptively entitled to certain 

rights, including: 

the rights of the owner of lands upon water to 

maintain his adjacency to it, and to profit by this 

advantage, and otherwise as a right to preserve and 

improve the connection of his property with the water. 

Those rights are not common to the citizens at large, 

but exist as incidents to the right of soil itself 

contiguous to and attingent on the water. In such 

ownership they have their origin, and not out of the 

ownership of the bed, and they are the same whether 

the riparian owner owns the soil under the water or 

not.
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Doemel, 180 Wis. at 230-31. "The riparian owner also has the 

right to build piers, harbors, wharves, booms, and similar 

structures, in aid of navigation, and such right is also one 

which is incident to the ownership of the upland." Id. at 231; 

Hicks ex rel. Askew v. Smith, 109 Wis. 532, 540, 85 N.W. 512 

(1901) ("the right to erect such a pier is simply an incident of 

riparian ownership"). For 140 years, title to the waterbed has 

been entirely irrelevant to determining riparian ownership under 

Wisconsin law. Doemel, 180 Wis. at 230. And the law presumes 

that riparian owners may construct a pier in aid of navigation.

¶76 As a preliminary matter, the law presumes the 

Movriches are riparian owners because they own property that 

abuts the banks of the Sailor Creek Flowage, a navigable body of 

water. Nevertheless, "[r]iparian rights do not necessarily 

follow as a matter of course the ownership of the adjacent 

land." Mayer v. Grueber, 29 Wis. 2d 168, 175, 138 N.W.2d 197 

(1965) (citing Allen v. Weber, 80 Wis. 531, 536, 50 N.W. 514 

(1891)). "No property owner's riparian rights are absolute."

Rock-Koshkonong Lake Dist., 350 Wis. 2d 45, ¶110. While an 

owner may be riparian in nature, his ability to exercise 

riparian rights may be qualified by a number of factors. Mayer, 

29 Wis. 2d at 175 (citing Allen, 80 Wis. at 536). As 

determinative here, these factors include the classification of 

the waterbody with which the Movriches' upland property is 

contiguous coupled with the private ownership of that 

waterbody's bed, as well as the language in the Movriches' deed.
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¶77 The Movriches are unquestionably riparian owners 

because their property lies on the banks of the flowage. The 

legal description of their property extends "to the shoreline" 

of the flowage. Yet, the majority holds that the Movriches are 

not riparians, contrary to every definition of riparian 

ownership existing in this state's pertinent precedent, dating 

back to 1877. See supra ¶10. Relying on Mayer, the majority 

points out that "when Movriches took title to their land, the 

legal description on their deed made no reference to riparian 

rights." Majority op., ¶53. The majority equates the deed's 

silence on riparian rights to the nonexistence of either

riparian ownership or riparian rights. This conclusion is 

patently incorrect.

¶78 It is true "that one who acquires land abutting a 

stream or body of water may acquire no more than is conveyed by 

his deed." Mayer, 29 Wis. 2d at 174. It is also true, however, 

that an owner of waterfront property possesses certain riparian 

rights under the common law and the common law provides that "a 

transfer of the property without any reference whatsoever to 

[riparian] rights automatically conveys and includes them." 

Doemel v. Jantz, 180 Wis. 225, 230, 193 N.W. 393 (1923) (citing 

Illinois Cent. R. Co. v. Illinois, 146 U.S. 387 (1892)); 

Stoesser v. Shore Drive P'ship, 172 Wis. 2d 660, 667, 494 

N.W.2d 204 (1993) (citations omitted); Mayer, 29 Wis. 2d at 175. 

The only way to eliminate riparian rights tied to the property 

under the common law is "by the clear language in the deed." 

Mayer, 29 Wis. 2d at 174. In other words, unless the deed 
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expressly disavows riparian rights, property adjacent to 

navigable water retains presumptive riparian rights, 

notwithstanding the conveyance documents' silence on this issue.

¶79 The majority acknowledges the Movriches' deed does not 

mention riparian rights.8 Therefore, the riparian rights 

attached to the property were conveyed to the Movriches under 

common law when they purchased their waterfront property. The 

deed does not need to expressly mention the status of riparian 

ownership because the presumption of riparian rights exists by 

operation of law unless the deed expressly excludes riparian 

rights.

¶80 Wisconsin qualifies a riparian owner's rights based on 

the classification of the waterbody to which the riparian 

property is contiguous. In the case of a natural body of water, 

"one who acquires land abutting a stream or body of water may 

acquire no more than is conveyed by his deed," which, as already 

discussed, means that a deed that expressly severs riparian 

rights will unequivocally strip the owner of those rights. Id.

at 174. In the case of an artificial body of water, as was the 

case in Mayer, ownership of the waterbed may qualify the 

existence of riparian rights. Id.

 

8 The majority suggests the possibility of a different 

outcome if the "Movriches had purchased their property from 

Lobermeiers." Majority op., ¶52. However, even if the 

Movriches had acquired their property from the Lobermeiers, if 

the deed were silent on riparian rights, as it actually is in 

this case, riparian rights are nevertheless conveyed under the 

common law. 
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¶81 In Mayer, we held that "the purchaser of property 

abutting an artificial lake acquires no rights as a riparian 

owner by virtue of the land acquisition alone." Id. at 179. 

Rather, "[u]nless the vendor conveys the right to use the lake, 

the purchaser is precluded from either the right of access or 

use." Id.

¶82 The majority's characterization of the flowage as a 

"man-made" body of water similar to the property in Mayer is 

incorrect.9 The flowage was an artificial condition created by a 

dam, which over time became a natural condition. Regardless,

"man-made" lakes and streams are by law artificial waterbodies. 

Under Wis. Stat. § 30.19(1b)(a), an artificial waterbody is "a 

body of water that does not have a history of being a lake or 

stream or of being part of a lake or stream." (Emphasis added.) 

In Mayer, the artificial lake was "formed as the result of 

gravel excavations." 29 Wis. 2d at 170. Thus, it had no 

history of being a lake before seepage filled up the excavation 

site and created a lake. Id. In contrast, a flowage arises 

 

9 "The artificial condition originally created by the dam 

became by lapse of time a natural condition." Haase v. Kingston 

Coop. Creamery Ass'n, 212 Wis. 585, 250 N.W. 444 (1933) (citing 

Johnson v. Eimerman, 140 Wis. 327, 330, 122 N.W. 775 (1909));

see also Alvin E. Evans, Riparian Rights in Artificial Lakes and 

Streams, 16 Mo. L. Rev. 93, 108 n.63 (1951) (citing Minehan v. 

Murphy, 149 Wis. 14, 134 N.W. 1130 (1912)).
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from the damming of a stream already in existence.10 Here, the 

Sailor Creek Flowage was created and is currently maintained by 

the damming of Sailor Creek, a natural, navigable stream, by the 

Town of Fifield in 1941 (a fact both parties and the majority 

concede). Majority op., ¶9. As the flowage has a history of 

being part of Sailor Creek, it is not an artificial waterbody 

and Mayer does not apply.

¶83 In a case where a dam overflowed previously dry lands 

owned in fee, this court held that "the public and the riparian 

owners enjoy the same rights in and upon such artificial 

waters," regardless of the fact that the particular body of 

water on which those rights are subsequently exercised were 

artificially created by the dam. Haase v. Kingston Coop.

Creamery Ass'n., 212 Wis. 585, 587, 250 N.W 444 (1933) (emphasis 

added). This concept, now discarded by the majority, was 

recognized over 100 years ago in Johnson v. Eimerman, 140 

Wis. 327, 330, 122 N.W. 775 (1909) ("The artificial condition 

originally created by the dam became by lapse of time a natural 

condition.") More recently, the "well settled" principle was 

reiterated: "If the volume or expanse of navigable waters is 

increased artificially, the public right to use the water is 

increased correspondingly." Klingeisen v. DNR, 163 Wis. 2d 921, 

 

10 A "flowage" is defined as "[t]he natural movement of 

water from a dominant estate to a servient estate." Flowage, 

Black's Law Dictionary (10th ed. 2014); see also Flowage 

Easement, Black's Law Dictionary (10th ed. 2014) ("A common-law 

easement that gives the dominant-estate owner the right to flood 

a servient estate, as when land near a dam is flooded to 

maintain the dam or to control the water level in a reservoir").
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927, 472 N.W.2d 603 (Ct. App. 1991). In that case, the court 

also recognized that title to the waterbed underlying navigable 

waters "is entirely subordinated to and consistent with the 

rights of the state to secure and preserve to the people the 

full enjoyment of navigability and the rights incident thereto." 

Id. at 928 (citing Diana Shooting Club v. Husting, 156 Wis. 269,

271, 145 N.W. 816 (1914)).

¶84 Subject to the public trust doctrine, "Wisconsin 

has . . . recognized the existence of certain common law rights 

that are incidents of riparian ownership of property adjacent to 

a body of water." R.W. Docks & Slips v. DNR, 244 Wis. 2d 497, 

511, 628 N.W.2d 781 (2001) (citing Bleck, 114 Wis. 2d at 466). 

Such rights include "the right, now conditioned by statute, to 

construct a pier or similar structure in aid of navigation." 

Id. (citing Cassidy v. DNR, 132 Wis. 2d 153, 159, 390 N.W.2d 81 

(Ct. App. 1986). Subject to a few exceptions not relevant here, 

"nothing in [Wis. Stat. ch. 30] applies to an artificial

waterbody, as defined in s. 30.19(1b)(a), that is not 

hydrologically connected to a natural navigable waterway and 

that does not discharge into a natural navigable waterway except 

as a result of storm events." Wis. Stat. § 30.053. As the 

Sailor Creek Flowage is hydrologically connected to Sailor 

Creek, it is not an artificial waterbody. While Wis. Stat. ch. 

30 was enacted after the creation of the flowage, "[t]he statute 

did not claim to alter the common law" and "[i]t is fundamental 

that a statute should be construed in harmony with the common 

law . . . unless a different construction is plainly expressed." 
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Klingeisen v. DNR, 163 Wis. 2d 921, 930, 472 N.W.2d 603 (Ct. 

App. 1991).

¶85 In attempting to distinguish the flowage from other 

natural waterbodies subject to Wis. Stat. ch. 30, the majority 

mistakenly limits the holding in Doemel v. Jantz to waterbodies 

that are public, navigable, and natural. Assuming that "[Lake 

Winnebago] is not man-made" and that "as far as we can tell, no 

portion of Lake Winnebago's waterbed is privately owned," the 

majority holds that Doemel is not dispositive. Majority 

op., ¶43. Setting aside the fact that Doemel is silent on the 

nature of Lake Winnebago's hydrological makeup or the ownership 

of Lake Winnebago's lakebed, Doemel controls the outcome here

because the flowage in this case is entirely analogous to Lake 

Winnebago for the purpose of determining whether the Movriches 

should be able to install a pier. Like Lake Winnebago, Sailor 

Creek Flowage is navigable under the public trust doctrine and 

therefore it is public. And while its existence depended upon 

human intervention, it is hydrologically connected to a natural 

navigable waterway (i.e., Sailor Creek) and therefore it is not 

an artificial waterbody under Wis. Stat. § 30.19(1b)(a). Mayer, 

therefore, does not extinguish the Movriches' common law 

riparian rights.

¶86 The next question is whether the Lobermeiers' private 

property rights in the waterbed trump the Movriches' riparian 

rights, preventing the Movriches from maintaining a pier 

anchored in the waterbed adjacent to the Movriches' shoreline 
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property. The right of a riparian to maintain a pier is subject 

to the following statutory limitations:

1. "A wharf or pier which interferes with public rights in 

navigable waters constitutes an unlawful obstruction of 

navigable waters unless the wharf or pier is authorized 

under a permit issued under s. 30.12 or unless other 

authorization for the wharf or pier is expressly 

provided." Wis. Stat. 30.13(4)(a) (emphasis added).

2. "A wharf or pier which interferes with rights of other 

riparian owners constitutes an unlawful obstruction of 

navigable waters unless the wharf or pier is authorized 

under a permit issued under s. 30.12 or unless other 

authorization for the wharf or pier is expressly 

provided." Wis. Stat. 30.13(4)(b) (emphasis added).

Notably, the right to maintain a pier is in no way statutorily 

limited by the rights of non-riparian owners.11

¶87 The nature of the flowage bed's title is also 

distinguishable from that of the private lakebed in Mayer, which 

was entirely owned by a single owner. In Mayer, this court 

recognized that in the case of an artificial waterbody, like the 

artificial lake in Mayer, "the title to the land remains in the 

owner and does not become vested in the state." 29 Wis. 2d at 

176 (citing Haase v. Kingston Coop. Creamery Ass'n, 212 

 

11 Wisconsin Stat. § 30.13 provides limited means by which 

non-riparian owners may maintain a pier. This section mainly 

considers the rights of easement holders and is not relevant 

here.
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Wis. 585, 588, 250 N.W. 444 (1933)). Mayer's holding is limited 

to "[a]n artificial lake located wholly on the property of a 

single owner." Id. Here, although title to a portion of the 

flowage bed remains with the Lobermeiers, their title is 

qualified because of the presence of navigable water over the 

bed.

¶88 This principle arises from Minehan v. Murphy, 149 

Wis. 14, 134 N.W. 1130 (1912), where the plaintiff brought an 

action for ejectment when the defendant adversely occupied the 

bed of an artificially enhanced stream by crossing over from his 

side of the stream's thread and onto the plaintiff's submerged 

property.12 The stream in question had previously been nonnavigable, but upon damming of the mouth and flooding of the 

privately-owned former uplands the stream was rendered 

navigable, such that "the former private title had become 

changed to the same character of qualified title as that of 

riparian proprietors to the beds of navigable rivers in 

general." Id. at 16 (emphasis added). Likewise, damming a 

stream and creating a flowage, which in character and shape may 

resemble a lake, does not transfer ownership of the bed to be 

held in trust to the state. Rather, like that of a streambed, 

the title of the flowage bed is privately-held, but qualified by 

the presence of navigable waters. See e.g., Ne-Pee-Nauk Club v. 

Wilson, 96 Wis. 290, 295, 71 N.W. 661 (1897); Rock-Koshkonong 

Lake Dist., 350 Wis. 2d 45, ¶78.

 

12 The court does not elucidate the exact details of the 

defendant's impermissible occupancy.
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¶89 The plaintiff's action for ejectment was ultimately 

successful in Minehan, based in part upon her status as a 

riparian whose title to the bed of the navigable water bounding 

the banks of her land was "incidental to her title to the bank." 

Minehan, 149 Wis. at 14. The court's articulation of the rule 

that title to private property submerged by navigable waters 

becomes qualified in the same sense as the qualified title of 

riparians to the beds of navigable waters, is particularly 

instructive here. Private title enjoys no heightened status 

vis-à-vis riparian title; rather, "the former private title had 

become changed to the same character of qualified title as that 

of riparian proprietors to the beds of navigable rivers in 

general." Id. at 16. Unlike the riparian plaintiff in Minehan, 

who not only owned the waterbed, but also had title to the 

upland property along the banks, the Lobermeiers merely own the 

flowage bed. The crux of the issue is whether the Lobermeiers 

may exclude the Movriches from erecting and maintaining a pier

by virtue of owning only a portion of the flowage bed. 

¶90 Because the Lobermeiers do not own property on the 

bank of a waterbody, they are not riparian owners. And while 

they retain ownership of a portion of the flowage bed in fee 

simple, that title is qualified by the presence of navigable 

waters. The majority wholly relies upon the Lobermeiers' 

ownership of the flowage bed in fee simple absolute to reach its 

conclusion that the Movriches are not entitled to erect and 

maintain a pier. Majority op., ¶¶17-21, 32 n.9. The majority 

cites a string of cases that do not contemplate the presence of 
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navigable water over the land. Id. No authority in Wisconsin 

or in any other jurisdiction has adopted the majority's 

reasoning or otherwise restricted placement of a pier on 

navigable waters by a riparian owner in favor of non-riparian, 

fee simple ownership of the waterbed. The presence of navigable 

waters qualifies the Lobermeiers' title to the flowage bed 

subject to the public trust doctrine and the rights of riparian 

owners along the banks of the flowage. As riparian owners, the

Movriches are entitled to exercise riparian rights to access the 

surface waters and to have their pier rest on the flowage bed.

¶91 Over one hundred years ago, this court expounded the 

"well settled" principle that "if the volume or expanse of 

navigable waters be increased artificially, the public right is 

correspondingly increased." Village of Pewaukee v. Savoy, 103 

Wis. 271, 277, 79 N.W. 436 (1899). Specifically, the court in 

Savoy expanded the state's ownership rights in natural waterbeds 

to artificially submerged lands maintained for more than 20 

years at an artificially high water level, concluding that "an 

artificial condition, by lapse of time . . . becomes the natural 

condition." Id. at 275. Three decades later, the court 

determined it was unnecessary to vest title to the artificially 

submerged land in the state in order to protect the public's 

rights under the public trust doctrine. Haase, 212 Wis. at 587. 

Nevertheless, the court in Haase reiterated the rule of law the 

majority should have applied here: "It is true that, where the 

waters of a natural, navigable lake are artificially raised, the 
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public and the riparian owners enjoy the same rights in and upon 

such artificial waters." Id.

¶92 The Sailor Creek Flowage was created 76 years ago and 

has been maintained for more than 50 years beyond the 20-year 

timeframe deemed sufficient to qualify the fee simple rights 

enjoyed by the owners of the underlying lakebed. The flowage, 

created artificially by construction of a dam, submerged 

privately owned land with the permission of the owner. Over 

time, during the three quarters of a century this land has 

remained submerged, both riparian rights as well as public trust 

rights extended to this artificial expansion of Sailor Creek. 

While the creation of the flowage did not transfer any property 

rights from the Lobermeiers to either the state or the 

Movriches, it subordinated the Lobermeiers' property rights to 

riparian rights under the common law as well as public rights 

under the public trust doctrine. While this reconciliation of 

three distinct rights perhaps leaves the Lobermeiers with 

property of limited value, this construction of the law takes 

nothing from the Lobermeiers and preserves what has always been, 

as reflected in the $400 assessed value of the flowage bed owned 

by the Lobermeiers. In contrast, the majority strips the 

Movriches of their riparian rights and reallocates them to the 

Lobermeiers.

¶93 Unfortunately, the majority's opinion diminishes not 

only the value of the Movriches' property, but also potentially 

guts the values of all properties abutting flowages throughout 

Wisconsin. The breadth of the majority's opinion calls into 
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question the terms of deeds to such waterfront properties, the 

validity of prior conveyances, and the extent of ownership 

interests. The majority's transfiguration of the common law 

governing riparian rights disturbs the reliance on access that

induced purchases of waterfront property in Wisconsin for over a 

century.

II

¶94 By eschewing decades of controlling precedent in 

order to elevate fee simple property rights in a waterbed, 

unattached to shoreline property ownership, the court 

effectively extinguishes the property rights of thousands of 

waterfront property owners along flowages, while jeopardizing 

the property rights of waterfront property owners on all bodies 

of water in Wisconsin. A change in the law of this magnitude 

should come from the legislature, not this court. Accordingly, 

I respectfully dissent from that part of the majority opinion 

that effectuates such a redistribution of property rights with 

no compensation to those left with substantially diminished 

property values and concur only in that part of the majority 

opinion that preserves the public's right to access the flowage 

waters.

¶95 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this opinion. 

¶96 I am also authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this opinion except for Part II.
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