                                                                   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
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.




                                       2
                                                                           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,
                                                                      FILED
              Plaintiffs-Respondents,                            JAN 23, 2018
      v.
                                                                   Diane M. Fremgen
David J. Lobermeier and Diane Lobermeier,                       Acting Clerk of Supreme
                                                                         Court

              Defendants-Appellants-Petitioners.




      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



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


                                            2
                                                                                No.   2015AP583



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


                                                 3
                                                                           No.     2015AP583



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


                                             4
                                                              No.   2015AP583



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.


                                       5
                                                                       No.    2015AP583



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


                                           6
                                                                            No.     2015AP583



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.


                                            7
                                                                                No.     2015AP583



                              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


                                                 8
                                                                                      No.    2015AP583



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.").


                                                      9
                                                                  No.   2015AP583



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.




                                       10
                                                                               No.      2015AP583



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)
                                                  11
                                                                             No.    2015AP583



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.


                                            12
                                                                           No.   2015AP583


       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


                                          13
                                                                             No.     2015AP583



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,


                                              14
                                                                               No.     2015AP583



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).


                                            15
                                                                              No.     2015AP583



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.




                                              16
                                                                       No.    2015AP583



       ¶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."

                                        17
                                                                                    No.     2015AP583



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




                                             18
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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, Rock-

Koshkonong 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).


                                         19
                                                                      No.     2015AP583



       ¶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).


                                         20
                                                                     No.     2015AP583



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 Rock-

Koshkonong, 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.


                                         21
                                                                         No.    2015AP583



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.


                                            22
                                                                                 No.    2015AP583



       ¶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.


                                              23
                                                                               No.     2015AP583



       ¶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




                                               24
                                                                           No.    2015AP583



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


                                           25
                                                                         No.        2015AP583



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.


                                            26
                                                                          No.     2015AP583



       ¶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


                                             27
                                                                               No.   2015AP583



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.




                                                 28
                                                                       No.    2015AP583



       ¶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.




                                         29
                                                        No.      2015AP583.ssa


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

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

separate writing except for Part II.




                                   1
                                                           No.    2015AP583.rgb


    ¶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.").


                                       1
                                                                    No.   2015AP583.rgb


      ¶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.").


                                           2
                                                                         No.   2015AP583.rgb


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.


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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."


                                         4
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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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       ¶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



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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.




                                      7
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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).


                                                8
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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

                                                11
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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)).


                                               13
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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").


                                          14
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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



                                       16
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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.


                                            17
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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 non-

navigable, 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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