A Lake Home Without Peer (or Pier)

Richard L. Schmidt | 02.15.18

Most owners of waterfront property probably assume that they have the right to place a pier extending from their shoreline. After all, direct lake access and the ability to place a pier in the water are primary reasons to own waterfront property. However, two weeks ago the Wisconsin Supreme Court ruled that if the body of water is a ​“flowage” and the waterbed is owned by another party, an adjacent waterfront property owner has no inherent right to place a pier on the waterbed. This ruling, in Movrich v. Lobermeier, has surprised many in the real estate industry and must be taken into account in any purchase of waterfront property on a flowage.

Underpinning the ruling in Movrich is the difference in ​“riparian rights” depending on the nature of the body of water. Riparian Rights are the bundle of rights conferred upon an owner of property that adjoins a navigable body of water. Those rights include, among other things, the right to use the water for domestic, agricultural and recreational purposes, the right to use the shoreline and have access to the water and the right to construct a pier. 

In the case of a natural lake or pond, riparian rights are presumed be held by a landowner whose property abuts the water. Such a landowner owns the property up to the ordinary high water mark of the water, with the lake bottom being held in trust for the people of the State. Such an abutting landowner usually has the right to place a pier on the lake bottom by complying with pier rules. 

However, in the case of a river or stream, a riparian owner may own to the ​“thread” of the stream (the center of deepest channel). If a dam is placed in the river or stream, some of the surrounding land will be submerged. This is how a ​“flowage” is created. In this example, the bed of the flowage may be owned outright, initially by the original creator of the flowage (such as a utility). If the land adjacent to the submerged land is then conveyed to a new owner, but no part of the waterbed (submerged land) is conveyed to that owner, it is the owner of the bed that controls placement of items (such as a pier) on the bed, not the waterfront owner. 

That is exactly what happened in Movrich. David Lobermeier owned the waterbed adjacent to Gail Movrich’s waterfront property. Lobermeier and Movrich are brother and sister. After the two had a falling out, Lobermeier told Movrich to remove the pier. The Wisconsin Supreme Court agreed with Lobermeier: even though Movrich owned waterfront property, Movrich had no right to put a pier on the waterbed of the flowage, which was owned and controlled by Lobermeier. 

So what’s the upshot? Other than not getting into fights with family, a person purchasing waterfront property on a flowage should determine if the seller also owns the adjacent waterbed. If so, make sure that it is included in the deed. If the seller does not own the waterbed, who does? Is it possible to obtain a license for a pier? Has the right to place a pier on the waterbed been established by 20 years of past practice? 

Although the rule announced in Movrich is concerning, purchasers of waterfront property on a flowage are not without options. In many cases, with a bit of research and some advanced planning, it may well be possible to secure the right to place a pier extending from the shoreline. 

• Real Estate/Leases