Beyond the Lot Line: Understanding Water Access Rights in Real Estate

Wisconsin is home to over 15,000 lakes and 84,000 waterways, which makes water rights a frequent topic of discussion. The public trust doctrine helps to ensure that all natural water bodies are open for use to the public. This doctrine holds that all natural and navigable waters are for the public’s use and benefit. Citizens have the right to use these waters for navigation, recreation and many other purposes. The public trust doctrine ensures that navigable waters can be used for agricultural irrigation, public water supply and water power as well. Further, the state has a duty to maintain these waters for the benefit of current and future generations. 

However, not all water bodies and sections of water bodies are included in the public trust doctrine. Landlocked lakes that are surrounded entirely by private land are not part of the public trust doctrine. Water near unnavigable shorelines is also excluded from the public trust doctrine. This water is considered to be part of the waterfront property to which it is attached.

Owners of waterfront property not only have the right to the land they are on but the right to the water abutting their property. These rights are called riparian rights. Riparian rights come in three categories:

• The right to use the water.
• The right to protect and maintain ownership of land up to the edge of the water.
• The right to construct structures that aid access to navigable depths such as piers and wharfs. 

Riparian owners have the exclusive right to use the water adjacent to or passing by the owner’s land for domestic, agricultural and recreational purposes. Riparian owners can also build seawalls, place riprap, or use other means to protect the shoreline against erosion. Lastly, riparian owners can build structures such as piers and wharfs or other structures to access navigable waters. Measures to protect the shoreline and the ability to build structures are often subject to state regulation and permitting.

Riparian rights are much more complicated when it comes to “artificial” water bodies. When a stream is impounded or dammed and previously dry land becomes submerged, the result is an artificial lake or pond called a flowage. These flowages are often popular vacation and rental destinations, such as Lake Wisconsin and Lake Koshkonong. However, artificial lakes are not public waterways and therefore the waterbed underneath the flowage is privately owned. This often causes conflicts between parties, which came to a head in 2018 in the case Movrich v. Lobermeier.

In Movrich, a lakefront property owner wanted to put in a pier anchored to the waterbed under an artificial lake. Lobermeier owned all the land that was flooded to create the lake and subsequently owned the waterbed underneath the flowage. Lobermeier contested that Movrich, the lakefront owner, could not build his pier as it was anchored to the waterbed, which was Lobermeier’s property. This case made its way to the Wisconsin Supreme Court. The Wisconsin Supreme Court declared that Movrich could not build his pier unless there was language in Movrich’s deed that affirmatively granted him riparian rights. 

This case had a massive impact on property values and impacted thousands of residential owner-occupied and rental properties around the state. Property owners were forced to remove their piers or obtain a dock license for piers they had owned and paid property taxes on for decades. Further, many businesses such as gas stations, marinas and restaurants relied on their establishments to be accessed exclusively by water. The impact of the Movrich decision was felt around the state, and many Wisconsinites protested the decision.

The WRA heard the outcry and supported legislation to overturn the Movrich decision and increase the property rights of owners. The supported legislation would create a presumption of riparian rights for all waterfront property owners unless the deed specified otherwise. In 2021, the legislature created Wis. Stat. § 30.132 in accordance with the WRA’s proposed legislation. 

The statute enabled all waterfront owners who own land abutting a navigable waterway — whether artificial or natural — to have all rights afforded to a riparian owner. This allowed waterfront property owners to once again install piers and maintain wet boathouses on flowages and enjoy all the rights that come along with owning waterfront property. Riparian rights are still subject to the public trust doctrine, Department of Natural Resources (DNR) regulations and applicable local ordinances, but this new statute defended and restored property owners’ waterfront rights and helped to protect the investments of thousands of property owners across the state.

Another concern that rises with riparian rights is a “taking” of riparian rights. A taking occurs when the government or individual either physically occupies the land or deprives a property owner of all productive use of the land. For example, a taking would occur when the government or an individual dams off a water body that causes a private water body to dry up or become unnavigable. 

Another concern is when a longstanding dam has created an artificial water body, but the dam is later removed. Removing the dam will lower the water levels and revert the lake or pond to a stream or marsh. Now the waterfront property owners have lost their riparian rights to enjoy the lake, and the newly uncovered marshland would be owned by the original owner of the flooded land. 

Wisconsin addressed this concern in Kreuziger v. Milwaukee County when the Estabrook Dam was removed. Removing the dam lowered the water levels of surrounding properties by almost four feet, including Kreuziger’s property. This exposed a 10-foot strip of land between the Kreuzigers’ retaining wall and the new waterline. Kreuziger claimed that removing the dam had resulted in him losing riparian rights to the previous water level and created an unowned strip of marshland between the Kreuziger property and the water. The court rejected these arguments and said that Kreuziger did not have a right to the previous water line, and he had no ability to force the county to reconstruct the dam. 

However, there is still much contention on this issue, and courts have continued to battle with whether a riparian owner has a claim against a private dam owner. Dams are now regulated by the Wisconsin DNR and must perform a public-interest standard in approving dam permits. 

Another piece of frequent contention in riparian rights is the riparian zone. Generally, the riparian zone is the area that extends from the riparian land into the water to the line of navigation. The line of navigation is the depth of a navigable waterway that is the greater of three feet or the depth required to operate a boat on the navigable water. The riparian zone analysis of navigability also considers the types of watercraft used in the particular water body. 

Apportioning riparian zones can be relatively simple when the shorelines are straight and the shore abuts the property at right angles. Here, the riparian zone just extends from the parcel shoreline out into the water body. If the shoreline isn’t completely straight but still mostly regular, the riparian zone will extend from the shoreline at a right angle out into the water body until the water is navigable.

However, riparian zone apportionment can get much more complicated when the shoreline is more irregular. For curved or irregular shorelines, Wisconsin often uses the coterminous method to apportion out riparian zones. The coterminous method draws a line between where the side lot lines meet the shoreline, and then a bisecting line is created to divide the riparian zone. Wisconsin also embraces other apportionment methods so long as they ensure equitable distribution of shoreline access.

There is often lots of uncertainty when apportioning riparian zones due to rocks, sandbars and other obstacles. Further, shorelines are constantly changing with water levels, erosion, sedimentation and artificial alterations. This makes riparian zone disputes fairly common and mostly affect pier and dock regulations. Neighbors infringing on riparian zones by building or moving piers is a leading problem in riparian right cases in Wisconsin. 

In DeSombre v. Boldebuck, two riparian owners disputed ownership of a wet boathouse and pier and based on that ownership, whether a pier DeSombre claimed to own was infringing on Boldebuck’s riparian zone. This case was on appeal because the circuit court granted summary judgement to DeSombre. At trial, DeSombre provided property tax information that he had been paying for the boathouse to prove his riparian rights. However, the court also considered evidence from an expert that parts of the pier and boathouse were in Boldebuck’s riparian zone. Each party’s evidence pointed to a different conclusion as to ownership and infringement. As such, the Court of Appeals determined there were still facts in dispute, reversed the circuit court’s grant of summary judgement in favor of DeSombre and remanded the case back to the lower court.

DeSombre highlights some of the information that is considered in riparian zone disputes between neighbors. Courts will look at property tax records, surveys of the property, deed descriptions and other expert opinions. All of this information is looked at holistically to determine riparian rights and to determine what should happen to piers and boathouses that may infringe on a neighbor’s riparian zone.

Recently, Wisconsin courts dealt with a difficult DNR rule called the “wet feet” rule that stated the public could use any part of the navigable waterway so long as “their feet are able to be kept wet.” In 2024, excessive rain caused the Rock River to flood and completely submerged a section of Thomas Reiss’ farmland located 3,000 feet away from the river. Airboat and mud boat users began using Reiss’ private flooded farmland by “keeping their feet wet” as Reiss’ land had become part of the navigable waters of the Rock River. Reiss shortly thereafter filed a claim against the Wisconsin DNR to strike down the wet feet rule and prohibit the boaters from his property.

Reiss argued that the wet feet rule violated the public trust doctrine and extended public access to private wetlands. Reiss stated that the public trust doctrine covered navigable lakes, streams, bayous and marsh outlets but not flooded farmland. In June 2024, the circuit court ruled in favor of Reiss and protected his private lands from unwanted trespassers using mud boats and airboats. This ruling essentially overturned long-standing DNR guidance in favor of protecting private property rights.

The case has since been appealed by the Wisconsin DNR and is still being decided in the appellate courts. This case has a massive impact on waterfront properties that may flood during excess rain or those near wetlands. Reiss is not the only Wisconsin citizen who has experienced unwanted airboat users on their flooded property as airboats easily glide across shallow waters. The appellate decision will be one to watch out for as it could completely outlaw the wet feet rule. 

Given Wisconsin’s reputation for outdoor recreation tourism, many of its waterfront properties are being used as short-term rental (STR) properties. STRs are great revenue opportunities for property owners and can help to cover the high property taxes that come with property ownership in Wisconsin. With over 15,000 lakes, Wisconsin’s water bodies draw visitors from around the country for vacations and summer holidays, which generates billions of dollars in revenue every year for the state. 

Beyond protecting STR owners’ property rights, it is important to protect their riparian rights as well. Ensuring that property owners are free to maintain boathouses as well as install piers, rafts and other water structures is pivotal to marketing STRs. Further, helping STR owners understand their riparian zone helps to ensure that renters better understand the property and riparian lines. Riparian rights are just one of the sticks in a property owner’s bundle of rights, but they are pivotal to property ownership and STR operation.