On June 18, 2021, Gov. Tony Evers signed into law 2021 Wis. Act 47, one of the most impactful pieces of Wisconsin property rights legislation in recent years. But how did we get here? 

Like all classic court cases that lead to legislation, the story begins with a brother and sister arguing over something.  

The Lobermeiers, the brother, own land beneath the waters of Sailor Creek Flowage. Historically, the flowage was a creek, but in the 1940s, the city obtained the rights to flood the area with a dam, which resulted in the flowage. The property adjacent to the flowage was subdivided, and waterfront lots were sold off as part of Sailor Creek Flowage Subdivision. 

The Movriches, the sister, purchased one of the waterfront lots in the subdivision. For years, the Movriches and the other waterfront property owners placed seasonal piers that sat on the bed of the flowage. The Movriches and Lobermeiers had a dispute, and the Lobermeiers demanded that the Movriches and the other property owners remove their piers from the water and refrain from using the water for recreational purposes.

The legal process

In response to the demand, the Movriches filed a lawsuit, asking the circuit court for a declaratory judgment establishing their right to install a pier. The Movriches maintained that waterfront property owners have an inherent right to reasonable use and access to the waters that are adjacent to their property, and that the Public Trust Doctrine set forth in the Wisconsin Constitution guarantees public access to the water. 

The Lobermeiers argued the Movriches did not have pier rights because the Lobermeiers owned the flowage bed, as set forth in the legal description of their deed, which allowed them to prevent others from trespassing on their property, including the placement of a pier that touched the flowage bed.   

What is a flowage? 
A flowage is a body of water created by a dam, but not all flowages are the same. Some are created by damming lakes, while others are formed by damming rivers and streams. The bed of a flowage created by a lake is generally owned by the public, and the bed of a flowage created by a river or stream is generally owned by a private entity. Wisconsin has approximately 260 flowages around the state.

Both the circuit court and Court of Appeals agreed with the Movriches and held that riparian owners have the right to place a pier in all navigable waterways. 

What is a riparian owner? 
Under Wisconsin law, an owner of property adjacent to a navigable waterway, who is often referred to as a “riparian,” has certain rights related to reasonable use and enjoyment of the waterway. Generally, these riparian rights were considered to include the right to place a pier as long as the pier did not unreasonably restrict the public’s right to reasonable use and enjoyment of the waterway, which is protected under the Public Trust Doctrine in the Wisconsin Constitution.

The Wisconsin Supreme Court got it wrong

In a 4-3 decision, the Wisconsin Supreme Court ruled in favor of the Lobermeiers, finding that the property owners along a flowage created by a creek do not have an inherent right to place a pier. The court explained that the Lobermeiers owned a fee simple interest in the land underneath the flowage waters, which entitled them to exclude others from placing a pier or structure on the property. Because the Movriches’ deed did not explicitly authorize them to place a pier on the Lobermeiers’ property, the court concluded that they did not have pier rights. The court stated in part, “Any property rights the Movriches may enjoy in regard to the man-made body of water created by the flowage easement must be consistent with the Lobermeiers’ property rights or the flowage easement’s creation of a navigable body of water.”

The court, however, determined the Movriches and the other riparians along the flowage may directly access the water from their property. The Lobermeiers argued that the Movriches could not access the water from their property and, instead, must access the water from a public access area.

The impacts of the court's holding were far-reaching

Property values

By declaring not all riparians have the right to place a pier, this case had a significant impact on the value of numerous waterfront properties in Wisconsin because the ability to place a pier adds value to waterfront property. According to a 2007 Wall Street Journal article, “When the Dock Is Worth More Than the House,” homebuyers in certain parts of the county sometimes pay twice as much for a home that includes its own dock. In some areas of the Midwest, the ability to place a pier can add $15,000 to $20,000 to a property’s value, according to the article. 

In Wisconsin, while difficult to measure in terms of exact dollars, the financial impact of pier rights to waterfront property values will likely be substantial throughout the state. Some homeowners have invested thousands of dollars on piers, boats and other recreation vehicles with the expectation these items could be used to enjoy their waterfront property. Moreover, some businesses have likely purchased property along a flowage with the expectation that their customers will be able to access their business directly from the water. In fact, some businesses such as restaurants, marinas and gas stations rely exclusively on customers who access their businesses by a boat and park at their pier.

Thousands of properties impacted

The court’s ruling applies to all flowages and potentially other man-made bodies of water in Wisconsin. Thousands of lakes in Wisconsin are considered man-made, resulting from either the artificial raising of water levels or the damming of rivers and streams, including large bodies of water such as Lake Koshkonong, Lake Wisconsin and the various chains of lakes in areas like Minocqua and Eagle River.

All piers were implicated 

The court’s ruling applies broadly to (a) all piers, even floating piers, (b) existing piers that have been placed for decades, and (c) waterfront property that has been assessed for property tax purposes as having pier rights for years. Because of the court’s ruling, affected property owners may now be forced to either remove their pier or pay several hundred dollars for a “dock license fee” to keep their existing pier.

WRA response: legislation

Introduced in the 2019-20 legislative session, the WRA supported legislation seeking to clarify that all waterfront property owners, even those with land abutting flowages and artificial waterways, have the right to place a pier subject to the regulations in Chapter 30 of the Wisconsin Statutes. However, due to COVID-19, the Senate did not meet, and the bill failed to pass its final step. Therefore, once the legislature was back in the Capitol and engaging in bills, the legislation was reintroduced on January 28, 2021, as SB 46/AB 37, was signed into law and became effective June 20, 2021. 

What does the new law do? 

The new law restores the presumption of riparian rights for waterfront property owners, including a right to place a pier, other structures or deposits, unless those rights are specifically prohibited by the deed to the land, written agreement or other recorded instrument. The riparian rights are subject to federal law, state law or a federal energy regulatory commission (FERC) license.  

What is a FERC license? 
Under the Federal Power Act, FERC “can license or re-license hydroelectric projects, including new hydrokinetic technologies” according to “Hydropower Licensing – Get Involved: A Guide for the Public,” available at www.ferc.gov/sites/default/files/2020-04/hydro-guide.pdf.

With respect to flowage beds owned by hydroelectric utilities, the following provisions are included:

• Existing piers and structures are grandfathered. No fees can be charged unless the fee was authorized as part of an existing agreement.

• New piers and structures must receive authorization from hydroelectric utilities, but authorization can be denied only if the placement of the structure would violate federal or state law or invalidate a FERC license. A reasonable fee can be charged, but only in an amount necessary to administer the FERC license program. Fees can be appealed to the Public Service Commission (PSC).

• A hydroelectric utility is immune from liability if someone gets hurt on the riparian’s structure.

Effective July 1, 2022, new disclosures are added to the Real Estate Condition Report and the Vacant Land Disclosure Report to make prospective buyers aware of the limited riparian rights possessed by waterfront property owners along flowages with beds owned by hydroelectric utilities. 

Please note that while both of the WRA’s condition reports currently include the disclosure, because the language is not yet statutorily required, the language has been placed in italics. 

Quick tips for REALTORS^® about the new law

The deed controls

Check the deed. If the deed expressly states the property does not have pier rights, or that the property is not waterfront, or that the property owner does not have riparian rights, then the deed controls. The new law does NOT trump the deed language. 

Not all waterways are the same

Know the type of body of water on which the property is located. Under the new law, property owners looking to place new piers and structures on a flowage bed owned by hydroelectric utilities will need to request permission from the hydroelectric utility before doing so. While such requests can be denied only in very limited circumstances, the placement of such piers and structures is not a guarantee.

Wisconsin has over 15,000 lakes and 84,000 miles of rivers and streams. Thus, the case serves as a good reminder that not all bodies of water are the same. Each body of water is unique, and the regulations, restrictions and rights associated with the use of each body of water may be different.

Tom Larson is Executive Vice President for the WRA.