Waterway & Wetland Handbook, Appendix 1, Topical List of Water Law Cases (2000)

The topical list of water law cases is intended to be a research tool for enforcement personnel and technical staff working on water regulation matters. The cases listed under each topic represent important concepts or current rules of law to be considered when explaining the water regulation program or in enforcement situations.

This list is not a definitive compendium of cases or principles. For example, the list for navigability does not include cases on navigability as it relates to mill dams or on navigability determinations for individual lakes or streams.

The topical list includes decisions by the Wisconsin Supreme Court and Court of Appeals.

The topical list was originally prepared in 1982 by:
James Kurtz, Director, Bureau of Legal Services
Michael J. Cain, Attorney, Bureau of Legal Services
Richard Knitter, Assistant Section Chief, Water Regulation Section
Scott Hausmann, Chief Biologist, Water Regulation Section
Mary Ellen Vollbrecht, Public Information Officer, Water Regulation Section
Lew Posekany, Chief, Biological Investigation Section

The list was updated in 1992, 1998 & 2000 by: Michael Cain, Bureau of Legal Services.

ACCRETION AND RELICTION

Doemel v. Jantz, 180 Wis. 225 (1923)

The rights of riparian owners must be condemned. Such riparian rights include the right to build piers and walls to prevent erosion as well as the right to accretions and relictions; trust doctrine; public rights to high and low water line; the public cannot trespass on land between high and low water line when the water level is down.

Jansky v. Two Rivers, 227 Wis. 228 (1938)

Rights of riparian owner on Lake Michigan where there had been accretion and reliction.

Rondesvedt v. Running, 19 Wis.2d 614 (1963)

Alluvion formed by accretion belongs to owner of the upland to which it is contiguous, but the riparian right to access to water and circumstances change this rule so that land in front of land goes to owner so access can be maintained.

De Simone v. Kramer, 77 Wis.2d 188 (1977)

Riparian owner obtains right and title to soil formed by accretions and relictions exclusive as to all the world, except where rights conflict with rights of public for navigation purposes. Accretion is the increase in land caused by the gradual deposit by water of materials on the shores, which deposit replaces the water at this location with dry land.

The prevailing doctrine that the causing or hastening of gradual deposits by artificial constructions, made by persons other than the benefited and claiming owner, does not prevent the doctrine of accretion from applying. When new formations of land are created by actions of the riparian owner, then the accretion doctrine does not apply.

W.H. Pugh Coal Co. v. State, 105 Wis.2d 123 (Ct.App. 1981)

The right of a riparian owner to accretions upon his land is absolute as against all the world except to the public's rights of navigation.

A riparian owner can obtain right and title to land formed by artificial accretion. However, a riparian owner is not allowed to take title to land accretion which was induced by his/her own actions.

The fact that the State holds a lake bed in public trust is not sufficient to grant it title to accretions on a riparian owner's land without just compensation.

State v. Trudeau, 139 Wis.2d 91 (1987)

The doctrines of accretion and reliction apply only to land above the OHWM. They do not apply to land which was submerged by lake waters when those waters reached the elevation of the lake's OHWM.

AESTHETICS/SCENIC BEAUTY

Muench v. Public Service Commission, 261 Wis. 492 (1952)

The public right to enjoy natural scenic beauty is firmly established. Under the public trust doctrine, the Department has the duty to protect this public right.

Claflin v. DNR, 58 Wis.2d 182 (1973)

Potential damage to scenic beauty is a proper basis for the denial of a sec. 30.12, Wis. Stats., structure permit.

Village of Menomonee Falls v. DNR, 140 Wis.2d 579 (1987)

Despite their subjective nature, aesthetics and scenic beauty are proper factors to be considered in the determination of whether permits for a particular project should be granted.

The enjoyment of scenic beauty is one of the paramount interests appurtenant to navigable waters.

A conclusory statement that a project will have a negative effect on aesthetics is not sufficient. Substantial evidence must support such a finding.

BED OWNERSHIP

Mendota Club v. Anderson, 101 Wis. 479 (1899)

Question was as to status of a certain area on the north end of Lake Mendota. The building of the Farwell Dam in 1850 raised the level of water in the lake some 4 feet giving rise to the question of whether the area was navigable water and of ownership to its bottom, as contrasted to rights claimed through a tax deed allegedly conveying the area. Discusses trust doctrine and also status of artificial condition created by dam.

State v. Bleck, 114 Wis.2d 454 (1983)

If a lake is navigable and natural, private individuals cannot gain title to the lake bed and an individual who is not a riparian owner cannot place a structure on the bed. However, the DNR does not have jurisdiction if a waterway is artificially created on private land. An artificial and private lake is an exception to the general rule that waters which are navigable in fact are navigable and public.

Anyone who objects to the state's jurisdiction under §30.12 and §30.15, Stats., on the basis that the body of water over which the state is asserting jurisdiction is an artificial water created on private land has the burden of persuasion on that fact by a preponderance of the evidence.

State v. Trudeau, 139 Wis.2d 91 (1987)

The state holds title to the beds of lakes up to the OHWM. An area need not be navigable to be state-owned lake bed. If the land is part of the navigable lake, then the fact that the specific area cannot be navigated is irrelevant.

The erection of an artificial barrier between a lake and a project site does not remove the site as part of the lake. So long as lake water would naturally flow to and from the site in the absence of the barrier, the site is part of the lake.

A county board of adjustment does not have the authority to grant variances for any part of project site below the OHWM.

Klingeisen v. DNR, 163 Wis.2d 921 (1991)

If an artificial channel is navigable and public, the DNR has jurisdiction to regulate boathouses on it even though the bed is privately owned. Title to the bed of navigable channels is subordinate to the rights of the state to preserve to the people the full enjoyment of navigation and the rights incident thereto.

BOATHOUSES

Claflin v. State Department of Natural Resources, 58 Wis.2d 182 (1973)

Determination that specific structure is detrimental to public interest on grounds that it impairs natural beauty of lake is proper basis for denial of a permit for the structure. The natural beauty of our northern lakes is one of the most precious heritages Wisconsin citizens enjoy. It is entirely proper that the natural beauty should be protected against specific structures that may be found to mar that beauty.

Klingeisen v. DNR, 163 Wis.2d 921 (1991)

The DNR has jurisdiction to regulate boathouses located on artificial, navigable channels when those channels are connected to natural, navigable bodies of water.

CHANNEL CHANGES

Lathrop v. Racine, 119 Wis. 461 (1903)

Improvement of harbor. Status of artificial channel, straightening out natural river.

CRANBERRY BOGS

Cranberry Creek D. D. v. Elm Lake C. Co., 170 Wis. 362 (1920)

Cranberry growers have right to divert natural watercourse.

State v. Zawistowski, 95 Wis.2d 250 (1980)

Section 94.26, Stats., exempts cranberry growers from getting s. 30.18 permit. Use of water is limited by the common law reasonable use doctrine.

Tenpas v. DNR, 148 Wis.2d 579 (1989)

Secs. 710.11 and 31.14 do not apply to cranberry growers. Both laws conflict with the rights granted to cranberry growers under sec. 94.26. Furthermore, the legislative history of sec. 31.14 indicates that it was intended to apply only to power dams, not cranberry dams.

CUMULATIVE AND SECONDARY IMPACTS

Hixon v. Public Service Commission, 32 Wis.2d 608 (1966)

In this case, the Court stressed the importance of taking the cumulative impacts of a structure/project into consideration. In holding that the Commission's denial to Hixon of a structure permit was not arbitrary or capricious, the Court stated,

"There are over 9,000 navigable lakes in Wisconsin covering an area of over 54,000 square miles. A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential may lead to another, and another, and before long a great body of water may be eaten away until it may no longer exist." Id. 631-632.

Wis. Environmental Decade v. DNR, 115 Wis.2d 381 (1983)

In this case, the Court determined that the DNR need not consider the secondary socio-economic effects of a project in deciding whether to prepare an EIS. That is, WEPA does not require the DNR to prepare an EIS for a project when investigation and research indicate that the project will have minor impacts on the environment, but will have possible socio-economic impacts. State agencies must look for significant effects on the physical environment in deciding whether to prepare an EIS. In the absence of significant impacts on the environment, socio-economic impacts do not trigger the EIS requirement.

The public trust doctrine is not to be "expanded to cover...downtown preservation."

Sterlingworth Condominium Assoc. v. DNR, 205 Wis 2d. 702 (Ct. App., 1996)

This case deals with the cumulative impacts of piers, boats and other riparian impacts on the shores of navigable waters. It updates Hixon and provides excellent language on cumulative impacts:

"Whether it is one, nine or ninety boat slips, each slip allows one more boat which inevitably risks further damage to the environment and impairs the public's interest in the lakes....In our opinion, the DNR, in limiting Sterlingworth's permit...carried out its assigned duty as protector of the overall public interest in maintaining one of Wisconsin's most important natural resources."

DAMS

(See also MILL DAMS)

Baraboo v. Railroad Commission, 195 Wis. 523 (1928)

Who may authorize dams. Regulation by state.

New Lisbon v. Harebo, 224 Wis. 66 (1937)

Sec. 31.06; city must acquire PSC permit to construct a dam before condemnation proceedings.

State ex rel. Priegel v. Northern States Power Co., 242 Wis. 345 (1943)

25% of natural flow must pass through a dam to protect lower riparian owners. A dam = mill race, canal, pond.

Jones v. Wisconsin Michigan Power Co., 252 Wis. 280 (1948)

Defendant's right to lower water and interpretation of dam maintenance.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, hunting as public rights in authorizing dam.

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even through not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weigh public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of a scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

Daly v. Natural Resources Board, 60 Wis.2d 208, Certiorari denied 94 S. St. 883, 414 U.S. 1137, 38 L. Ed. 2d 763 (1973)

There was substantial evidence in record to support DNR's issuance of dam permit.

Tenpas v. DNR, 148 Wis.2d 579 (1989)

Secs. 710.11 and 31.14 do not apply to cranberry growers. Both laws conflict with the rights granted to cranberry growers under sec. 94.26. The legislative history of sec. 31.14 indicates that it was intended to apply only to power dams, not cranberry dams.

DIVERSIONS

Nekoosa-Edwards Paper Co. v. PSC, 8 Wis.2d 582 (1959)

PSC has no jurisdiction under sec. 31.14 to determine whether the diversion of nonsurplus water will damage riparian owners in deciding whether to grant a permit to divert waters. If the diversion will take nonsurplus water, any diversion as a matter of law will injure riparian owners, and so their consent must be obtained.

State ex rel. Chain O' Lakes P. Asso. v. Moses, 53 Wis.2d 579 (1972)

Diversion of waters.

The established rule of the common law in Wisconsin was that every riparian owner of stream or lakeshore property has an equal right to the use of its water for all reasonable and beneficial purposes. However, s. 30.18, Stats., in derogation of common law makes it unlawful for any person to divert water without a permit from the Department of Natural Resources if the use or diversion thereof falls into one of the three categories listed in the statutes.

A s. 30.18 permit only need be obtained if the intended use of the diverted waters falls within the three categories, (1) agriculture, (2) irrigation, (3) and the bringing back or maintaining of a normal water level in stream or lake.

Omernik v. State, 64 Wis.2d 6 (1974)

Unlawful diversion of water from stream and creek. Section 30.18, Stats., requires that a permit be obtained before water can be diverted for irrigation purposes whether the water is surplus or nonsurplus. The fact that a stream is navigable or nonnavigable is of no consequence since the statutory prohibition of s. 30.18, Stats., applies to diversions from nonnavigable as well as from navigable streams.

Omernick v. Department of Natural Resources, 71 Wis.2d 370 (1975)

Recognized that s. 30.18, Stats., introduces element of prior appropriation into state water law.

State v. Zawistowski, 95 Wis.2d 250 (1980)

Section 94.26, Stats., exempts cranberry growers from getting s. 30.18 permit. Use of water is limited by the common law reasonable use doctrine.

DRAINAGE

Nicolai v. Wilkins, 104 Wis. 580 (1899)

Landowner can't collect and discharge water on land of neighbor.

Priewe v. Wis. S. L. & Imp. Co., 103 Wis. 537 (1899)

Held that a legislatively-authorized scheme to drain Muskego Lake purportedly under ch. 169, Laws of 1887, ch. 202, Laws of 1891, was invalid as a violation of the constitution. Discusses trust doctrine - legislature can't free itself of the trust.

McEvoy v. Gallagher, 107 Wis. 486 (1900)

Surface water. Right to drainage created by prescription.

In re Dancy Drainage District, 129 Wis. 129 (1906)

Impairment of navigable waters. Drainage district refused power to drain a lake.

In re Horicon Drainage District, 136 Wis. 227 (1908)

Impairment of navigable waters. Who has title to bed of navigable water created by artificial condition.

Merwin v. Houghton, 146 Wis. 398 (1911)

Riparian rights can be condemned for drainage - a public purpose; drainage commissioners may change channel of navigable stream if it will improve navigability; diversion of river through nearby marshlands; trust doctrine. Two justices say public right of fishing subject to paramount right to improve navigation.

Cranberry Creek D. D. v. Elm Lake C. Co., 170 Wis. 362 (1920)

Right to divert natural watercourse by cranberry growers.

Dargert v. Dietrich, 171 Wis. 584 (1920)

Collection of damage caused by failure to clean out drainage ditch.

In re Crawford County Levee and Drainage District, 182 Wis. 404 (1924)

Discusses trust doctrine, state can't destroy navigable waters.

C. B. & Q. R. R. Co. v. Railroad Commission, 199 Wis. 342 (1929)

Drainage has to be provided for, but does not have to follow natural pattern.

Delta Fish & Fur Farms v. Pierce, 203 Wis. 519 (1931)

Judgement in drainage district proceedings as establishing status of water as nonnavigable waters.

Henry v. C. B. & Q R. Co., 204 Wis. 182 (1931)

Action for damages due to flooding of crops. Allegedly due to railroad embankment and inadequate bridge.

Thurs Box Co. v. Marathon Co., 233 Wis. 387 (1940)

Sec. 88.38 (1938); highway cannot obstruct surface drainage.

In re Jefferson Co. Farm Drainage, 264 Wis. 339 (1953)

Not proper to form drainage district on piecemeal basis.

Lloyd v. Chippewa Co., 265 Wis. 293 (1953)

County not required to provide drainage to private property where easement for highway drainage has been granted.

Tiedeman v. Middleton, 25 Wis.2d 443 (1964)

City has right to channel surface water in natural direction, if no new watershed is tapped and volume of water is not increased. Prescriptive and artificial conditions discussed.

State v. Deetz, 66 Wis.2d 1 (1974)

The Court overrules the common enemy doctrine and adopts the "reasonable use" rule. Under the reasonable use rule, a landowner is liable for damages caused by his/her diversion of surface waters if that diversion unreasonably interferes with another's use or enjoyment of land.

Timm v. Portage County Drain. Dist., 145 Wis.2d 743 (Ct.App. 1988)

The operation of a drainage ditch is not an agricultural practice within the meaning of sec. 814.04(9) and sec. 823.08(4), Wis. Stats.

DREDGING

Angelo v. Railroad Commission, 194 Wis. 543 (1928)

Contracts for taking material from bed of navigable lakes. Discusses title to bed, state has proprietary interest in minerals or other materials in beds of navigable lakes; dredging statute is constitutional.

Reuter v. Department of Natural Resource, 43 Wis.2d 272 (1969)

Requires the Department of Natural Resources, as a prerequisite to issuing a dredging permit under s. 30.20(2)(c), Stats., to make a specific finding of fact as to effect on water quality and increases of water pollution which the granting of a permit might engender.

As to lakes and streams of the state, the term "public interest" clearly involved the use by the public for all the incidents of navigation, i.e., sailing, rowing, canoeing, bathing, fishing, hunting, skating, and other public purposes - most, if not all of which are rendered less useful or otherwise adversely affected by polluted waters.

State v. Dwyer, 91 Wis.2d 440 (1979)

Section 30.20, Stats., applies to all streams. Section 88.90(3) does not supersede requirement to get s. 30.20 permit.

R.W. Docks & Slips v. DNR, 145 Wis.2d 854 (Ct.App. 1988)

Sec. 30.19, Stats., deals only with the dredging of artificial waterways, not natural bodies of water.

ENLARGEMENTS

Pewaukee v. Savoy, 103 Wis. 217 (1899)

This was an appeal from a judgment restraining defendants from placing a fence along street line to prevent frontage to Pewaukee Lake. The natural shoreline did not reach the limit or the street, but an artificial line maintained more than 20 years brought the water level to the street limit. Case discusses trust doctrine. Holds artificial condition had legally become its natural condition by existence of new level for more than 20 years and, as regarding the submerged lands, are characteristics of a natural lake to that extent. Dedication by riparian owners conclusively presumed where it exists for 20 years. Status of streets terminating on navigable water.

Haase v. Kingston Co-op Creamery Assn, 212 Wis. 585 (1933)

Public use of navigable artificial waters can legally become a natural condition.

Klingseisen v. DNR, 163 Wis.2d 921 (1991)

If the volume or expanse of a navigable body of water is increased artificially, the public right to use the water is increased correspondingly.

The Court held that an artificial channel was navigable and public because it was an expansion of Lake Michigan's Green Bay and could not exist on its own.

FENCES

Mendota Club v. Anderson, 101 Wis. 479 (1899)

Question was as to status of a certain area on the north end of Lake Mendota. The building of the Farwell Dam in 1850 raised the level of water in the lake some 4 feet, giving rise to the question of whether the area was navigable water and of ownership to its bed, as contrasted to rights claimed through a tax deed allegedly conveying the area. Discusses trust doctrine and also status of artificial condition created by dam.

Pewaukee v. Savoy, 103 Wis. 271 (1899)

This was an appeal from a judgment restraining defendants from placing a fence along street line to prevent frontage therefrom to Pewaukee Lake. The natural shoreline did not reach the limit or the street, but an artificial line maintained more than 20 years brought the water level to the street limit. Case discusses trust doctrine. Holds artificial condition had legally become its natural condition by existence of new level for more than 20 years and, as regarding the submerged lands, are characteristics of a natural lake to that extent. Dedication by riparian owners conclusively presumed where it exists for 20 years. Status of streets terminating on navigable water.

Doemel v. Jantz, 180 Wis. 225 (1923)

The rights of a riparian owner must be condemned. Such riparian rights include the right to build piers and walls to prevent erosion as well as the right to accretions and relictions; trust doctrine; public rights to high and low water line; the public cannot trespass on land between the high and low water lines when the water level is low.

FLOATING BOGS

Attorney General ex rel. Becker v. Bay Boom W. R. & F. Co., 172 Wis. 363 (1920)

Extension of lake being caused by a dam. Status of waters created by artificial means and title to land beneath water. Definition of "avulsion". Rights of riparian owner and right to encroach on bed. Public right of recreation. "Floating bog" defined.

State v. Lamping, 36 Wis.2d 328 (1967)

Floating bog defined. A material factor to be considered in determining whether a peninsula such as that involved in the instant case is a floating bog on land is the degree to which it is anchored or fastened to the underlying lake bed; if it is so securely anchored or fastened thereto that its surface does not rise or fall with the raising or lowering of the lake's water level, it would no longer constitute a floating bog.

FLOODPLAIN/SHORELAND ZONING

Just v. Marinette County, 56 Wis.2d 7 (1972)

The exercise of police power in zoning must be reasonable. It is reasonable to exercise police power to prevent harm to public rights by limiting the use of private property to its natural uses. The shoreland zoning ordinance at issue in this case was held to not be a compensable taking because it preserved nature and natural resources as they were created and to which the public had a present right.

"The active public trust duty of the state of Wisconsin in respect to navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation, and scenic beauty. To further this duty, the legislature may delegate authority to local units of government, which the state did by requiring counties to pass shoreland zoning ordinances."

"Lands adjacent to or near navigable waters exist in a special relationship to the state. They ... are subject to the state public trust powers."

"The state of Wisconsin under the trust doctrine has a duty to eradicate the present pollution and to prevent further pollution in its navigable waters. This is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the enviroment." Therefore, the shoreland zoning ordinance did not create a public benefit and could not be held to result in a compensable taking.

State v. Trudeau, 139 Wis.2d 91 (1987)

Under sec. 87.30(2), Stats., the State has a cause of action to enjoin a public nuisance whenever there exists a violation of any local floodplain zoning ordinance.

M & I Marshall Bank v. Town of Somers, 141 Wis.2d 271 (1987)

Primary authority to enact, repeal and amend a zoning ordinance was intended to be, and is, vested at the county level. Therefore, the county was the proper party against whom a takings claim was to be made, not the town.

Reaffirms Just and extends it by stating that a parcel of land which consists of continuing wetland which is partly within and partly outside a shoreland area should be treated as if the entire wetland was located within the shoreland area.

State v. Ozaukee Board of Adjustment, 152 Wis.2d 552 (Ct. App. 1989)

Floodplain zoning is a necessary tool to protect human life and health and to minimize property damages and economic losses. The legislature may assign public trust duties to local units of government which the state did by requiring counties to pass shoreland ordinances.

Ozaukee Board of Adjustment acted outside its jurisdiction in granting the 4 variances for a restaurant/shopping complex within a designated floodplain area.

INCIDENTS OF NAVIGATION

Olson v. Merrill, 42 Wis. 203 (1877)

A stream that is navigable at recurring times is navigable.

Ne-pee-nauk Club v. Wilson, 96 Wis. 290 (1897)

Right to hunt on Mud Lake. Who may hunt or fish thereon. Defines difference between lake and stream.

The Court recognized that the body of water in question could properly be called a swamp or marsh because much of the water disappeared in the summer, leaving large expanses of mud, bog and thick vegetation. However, the Court still declared it to be a navigable lake.

Willow River Club v. Wade, 100 Wis. 86 (1898)

Stream bed title in riparian owner; right to fish is a public right. Question was as to right to take fish from Willow River; discusses ownership of bed of stream and trust doctrine. What is navigable water. Distinctions between navigable water of United States as contrasted to state. Who owns fish in water. Riparian owners can't prevent fishing in navigable waters.

Diana Shooting Club v. Husting, 156 Wis. 261 (1914)

Trust doctrine includes right to hunt. The Court defines the ordinary highwater mark as:

"...the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic."

Nekoosa-Edwards Paper Co. v. Railroad Commission, 201 Wis. 40 (1930)

Order of PSC denying permit for dam in Four Mile Creek. Discusses history of water law. What is "navigable water". Rights of riparians on navigable streams.

Baker v. Voss, 217 Wis. 415 (1935)

Title to bed of both meandered and nonmeandered lakes is in state.

Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252 (1949)

Authority of commission to issue licenses for privately owned land under navigable water; trust doctrine; riparian rights; whether stream is navigable or not; trapping not an incident to navigation and so no public right to trap; right of navigation includes incidental use of bottom.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, hunting as public rights in authorizing dam.

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even though not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weigh public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

LAKES

Ne-pee-nauk Club v. Wilson, 96 Wis. 290 (1897)

The Court discusses the distinction between a lake and a watercourse or stream. A stream or watercourse has natural motion (i.e., a current). On the other hand, in its natural state the water of a lake is substantially at rest. This distinction between lakes and streams is entirely irrespective of the size of the body of water.

The Court recognized that the body of water in question could properly be called a swamp or marsh because much of the water disappeared in the summer, leaving large expanses of mud, bog and thick vegetation. However, the Court still declared it to be a navigable lake.

Illinois Steel Co. v. Bilot, 109 Wis. 418 (1901)

A swampy area is declared by the Court to be a navigable lake. "The mere fact that the water was very shallow, so that marsh grass appeared above the surface, that it was called a marsh, and that the water was not deep enough to admit of navigation, or that the surface was not at all times wholly submerged, does not preclude its being in fact a lake."

Baker v. Voss, 217 Wis. 415 (1935)

A lake is navigable that is a shallow, muddy lake or marsh, if boats may be used thereon.

State v. Trudeau, 139 Wis.2d 91 (1987)

An area need not be navigable to be lake bed. If land is part of a navigable lake, then the fact that the specific area cannot be navigated is irrelevant.

LEVELS AND FLOWS

Smith v. Youmans, 96 Wis. 103 (1897)

Action to restrain mill dam owner at outlet of Lake Beulah from taking action which would reduce level of lake. After 20 years, an artificial condition becomes a natural condition.

Flambeau River Lbr. Co. v. Railroad Commission, 204 Wis. 524 (1931)

Validity of order of PSC authorizing Flambeau R. L. Co. to release all flow in Flambeau except 150 c.f.s. when logs were being driven on the river. Important case. Describes history of water law. Court can't substitute judgment for PSC.

Trout Brook Co. v. Willow River P. Co., 221 Wis. 616 (1936)

Duty of dam owner to operate dam so upper and lower riparians are not injured. Dam need only be constructed for normal floods.

State ex rel. Priegel v. Northern States Power Co., 242 Wis. 345 (1943)

25% of natural flow must pass through a dam to protect lower riparian owners. A dam = mill race, canal, pond.

Wisconsin Power and Light Company v. PSC, 5 Wis.2d 167 (1958)

Setting of level is not a taking and is a proper exercise of police power. Sec. 31.02 applies to dams maintained before and after enactment.

The provision of 31.34 that at least 25% of natural flow must be passed by a dam only sets a minimum, not a standard.

DNR v. Clintonville, 53 Wis.2d 1 (1971)

Violation of s. 31.02 does not establish cause of action for damages under s. 29.65.

Otte v. DNR, 142 Wis.2d 222 (Ct.App. 1987)

Under sec. 32.01(1) Stats, the DNR has the power to regulate water levels. However, this section does not authorize the DNR to order a riparian landowner to restore a filled ditch at his own expense. Such an order was a compensable taking.

MILL DAMS

Newcomb v. Smith, 2 Pinney 131 (1849)

Constitutionality of Mill dam Act of 1840. The act was found to be constitutional. Also a discussion of due process and taking.

Thien v. Voegtlander, 3 Wis. 411 (1854) Pratt v. Brown, 3 Wis. 532 (1854)

Constitutionality of Mill Dam Act. A mill dam can only be constructed if compensation is paid.

Fisher v. Horicon Iron and Mfg. Co., 10 Wis. 293 (1860)

Court states that if it were not for precedent and for economical benefits, it would overrule the Mill Dam Act. Holds that the Mill Dam Act is constitutional.

McDonald v. Apple River Power Co., 164 Wis. 450 (1916)

What is "navigable river" under Mill Dam Law.

Nekoosa-Edwards Paper Co. v. Railroad Commission, 201 Wis. 40 (1930)

Order of PSC denying permit for dam in Four Mile Creek. Discusses history of water law. What is "navigable water". Rights of riparians on navigable streams.

Haase v. Kingston Co-op Creamery Assn, 212 Wis. 585 (1933)

Public use of navigable artificial waters can legally become a natural condition.

Burkman v. New Lisbon, 246 Wis. 547 (1944)

Prescriptive right to flow can be abandoned by non-use. Prescriptive use for mill dam cannot be extended to maintenance of flowage for park.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, hunting as public rights in authorizing dam.

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even though not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weigh public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

NAVIGABILITY

Olson v. Merrill, 42 Wis. 203 (1877)

A stream that is navigable at recurring times is navigable.

Diedrich v. Northwestern U.R. Co., 42 Wis. 248 (1877)

Rights of riparian on Lake Michigan. Waters are navigable when capable of navigation in fact without other conditions.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, hunting as public rights in authorizing dam.

The Court delineated a new test for determining whether waters are "navigable in fact." It stated: "It is no longer necessary in determining navigability of streams to establish a past history of floating logs, or other use of commercial transportation, because any stream is navigable in fact which is capable of floating any boat, skiff, or canoe, of the shallowest draft used for recreational purposes."

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even though not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weight public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of a scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

DeGayner & Co., Inc. v. Department of Natural Resources, 70 Wis.2d 936, 236 N.W.2d 217 (1975)

A stream is navigable if it is navigable in fact at recurring times each year long enough to make the stream useful as a highway.

"...the test [for navigability] is whether the stream has periods of navigable capacity which ordinarily recur from year to year, e.g., spring freshets, or has continued navigable long enough to make it useful as a highway for recreation or commerce. The test is not whether the stream is navigable in a normal or natural condition, but whether it is in some sense permanently navigable, i.e., regularly recurring or of a duration sufficient to make it conducive to recreational uses."

Existence of beaver dams on a stream for 37 years is a natural condition.

State v. Bleck, 114 Wis.2d 454 (1983)

State had jurisdiction under Secs. 30.12 and 30.15 because Bass Lake was navigable in fact. "Navigable waters" for the purpose of establishing jurisdiction under Chapter 30 are waters that are navigable in fact.

State v. Trudeau, 139 Wis.2d 91 (1987)

The State holds title to the beds of lakes up to the OHWM. An area need not be navigable to be lake bed. If land is part of a navigable lake, then the fact that the specific area cannot be navigated is irrelevant.

Village of Menomonee Falls v. DNR, 140 Wis.2d 579 (1987)

Navigability in fact is the sole test of navigability for purposes of Chapter 30. The balancing of public interests against the benefits to be gained from the propose project occurs after a determination of navigability and pertains to the determination of whether to grant a permit for the project.

Examiner's conclusion that Lily Creek was navigable in fact was supported by substantial evidence (an experienced DNR water management specialist had navigated a canoe on the creek, a 12-year resident on creek stated that he had seen canoes on it, etc.).

Klingeisen v. DNR, 163 Wis.2d 921 (1991)

The DNR has jurisdiction over a waterway if it is navigable and public. The DNR does not have jurisdiction if the waterway is artificially created on private land.

An artificial channel which is connected to a natural and navigable body of water is public because it cannot exist on its own. If the volume or expanse of navigable water is increased artificially, the public right to use the water is increased correspondingly.

While sec. 30.10 specifically declares some waters navigable, it does not prevent other waters from being declared navigable as well. Once a body of water is found public and navigable, the DNR has jurisdiction.

Turkow v. DNR, 216 Wis. 2d 273(1998)

The DNR has the "authority, as well as the obligation, to determine whether the waters of the state are navigable in fact and therefore subject to regulation. Where the PSC had made a determination historically that this stream was not navigable, it was not "estopped" (legally precluded) from reviewing that determination to make a contemporary jurisdictional determination.

NUISANCE

State v. Trudeau, 139 Wis.2d 91 (1987)

Under §87.30(2), Stats., the State has a cause of action to enjoin a public nuisance whenever there exists a violation of any local floodplain zoning ordinance.

OBSTRUCTIONS

Mohr v. Gault, 10 Wis. 455 (1860)

Outlet of lake obstructed by natural causes. Remedy of flooded owner is to remove the obstruction. A natural obstruction in stream is not a nuisance.

Enos v. Hamilton, 24 Wis. 658 (1869)

Boom Company cannot wrongfully obstruct navigation. Legislature can authorize blockade of navigable stream by a boom.

Chapin v. Crusen, 31 Wis. 209 (1872)

Ferry franchise held not to interfere with free navigation in Wisconsin River.

Gates v. No. Pac. RR Co, 64 Wis. 64 (1885)

Railroad bridge obstructing navigation.

Union Mill Co. v. Shores, 66 Wis. 476 (1886)

Boom in Lake Superior as nuisance obstructing navigation. Difference between boom in lake and river. They are favored in rivers.

Edwards v. Wausau Boom Co., 67 Wis. 463 (1886)

Boom in part of river nonnavigable in fact except for running logs is proper if done in accordance with charter and is reasonable.

J. S. Keator Lumber Co. v. St. Croix Boom Crop., 72 Wis. 62 (1888)

Right of state to authorize construction of booms in navigable river (St. Croix) even though navigation by watercraft will be impaired. Effect of ordinance of 1787. Also discusses bridge cases. Extensive discussion of concurrent jurisdiction.

Velte v. U.S., 76 Wis. 278 (1890)

Who is responsible for flooding caused by third person placing obstructions without authority on U.S. dam.

Sebranke v. Kohlmeyer, 130 Wis. 352 (1907)

Obstructions in mill pond.

Flambeau R. L. Co. v. Lake Superior D. P. Co., 200 Wis. 31 (1929)

Action for damages for obstruction of navigable stream by a dam.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, and hunting as public rights in authorizing dam.

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even though not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weigh public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

State v. Sensenbrenner, 262 Wis. 118 (1952)

Riparian owners may deny WCD permission to cross their land to remove beaver dam, but WCD may approach dam from the stream itself; obstruction in navigable stream is a nuisance; riparian and public rights in stream bed.

Capt. Soma Boat Line, Inc. v. City of Wisconsin Dells, 56 Wis.2d 838 (1973)

State has power to prohibit erection of or maintenance of any dam, bridge or other structure within or over any navigable stream which may obstruct or impede the free navigation thereof.

Section 31.23 or 31.25 does not provide remedy for a private individual.

Capt. Soma Boat Line v. Wisconsin Dells, 79 Wis.2d 10 (1977)

Reasonable obstructions to navigation are permitted. Whether obstruction to navigation is unreasonable depends upon facts and circumstances of each case, including whether complainants knew of limitations imposed by the obstruction to navigation before they purchased riparian property.

ORDINARY HIGHWATER MARK

Diana Shooting Club v. Husting, 156 Wis. 261 (1914)

The public rights in navigable waters includes the right to hunt; the trust doctrine extends to the protection of this right.

Ordinary highwater mark defined: "By ordinary high-water mark is meant the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that it is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark."

Polebitzke v. John Week Lbr. Co., 163 Wis. 322 (1916)

Restates the Diana Shooting Club definition of the ordinary highwater mark.

State v. McDonald Lumber Co., Inc., 18 Wis.2d 173 (1962)

Questions as to quantum of proof required to show ordinary highwater mark for purposes of showing trespass on bed of lake by defendant's dock and slip.

Zinn v. State, 112 Wis.2d 417 (1983).

An erroneous OHWM determination by the DNR which resulted in a riparian's loss of sole riparian rights and the temporary loss of title to 200 acres of land presents a valid takings claim.

State v. Trudeau, 139 Wis.2d 91 (1987)

The State holds title to the beds of navigable lakes to the OHWM. The OHWM establishes the boundaries of the public trust in a navigable lake.

County Board of Adjustment could not properly grant a floodplain variance for any part of a development site below the OHWM. It could grant a variance for the portion of the project above the OHWM only if it would not be contrary to the public interest.

Public title to navigable waters extends to areas within the OHWM which are covered with aquatic vegetation. Lakebed may be heavily vegetated by plants rising far above the water.

PIERS

Northern Pine Land Co. v. Bigelow, 84 Wis. 157 (1893)

Riparian has right to construct pier to navigable depth.

Atty. Gen. ex. rel. Askew v. Smith, 109 Wis. 532 (1901)

Pier built by nonriparian owner is a purpresture (permanent invasion of public property), but is not if built by riparian owner. Riparian owner may build pier to reach navigable water.

McCarthy v. Murphy, 119 Wis. 159 (1903)

Rights of riparian on navigable lake to build piers and wharves. Right to remove pier built by nonriparian owner.

Thomas V. Ashland S. & I. R. L. R. Co., 122 Wis. 519 (1904)

Rights to navigation of owner on shoreline of navigable lake.

Hathaway v. Milwaukee, 132 Wis. 249 (1907)

Ownership of "new" waterfront on Lake Michigan in Milwaukee

Doemel v. Jantz, 180 Wis. 225 (1923)

The rights of a riparian owner must be condemned. Such riparian rights include right to build piers and walls to prevent erosion as well as the right to accretions and relictions; trust doctrine; public rights to the high and low water line; the public cannot trespass on land between the high and low water lines when the water is low.

Jansky v. Two Rivers, 227 Wis. 228 (1938)

Rights of riparian owner on Lake Michigan where there had been accretion and reliction.

Bond v. Wojahn, 269 Wis. 235 (1954)

Plaintiff ran his boat into defendant's pier. Even though the plaintiff had no PSC permit for the pier, it was not a per se nuisance without any proof that it actually interfered with navigation.

Riparian owner given qualified title to center of stream subject to power of state to preserve pubic use. One right of a riparian owner is to build a pier to reach navigable water.

History of control of navigable waters in Wisconsin.

Colson v. Salzman, 272 Wis. 397 (1955)

State ownership in trust of land under inland, meandered, navigable lake.

Rondesvedt v. Running, 19 Wis.2d 614 (1963)

Alluvion formed by accretion belongs to owner of the upland to which it is contiguous, but the riparian right to access to water and circumstances change this rule so that accretions in front of riparian property goes to the owner so access can be maintained.

De Simone v. Kramer, 77 Wis.2d 188 (1977)

Riparian owner obtains rights and title to soil formed by accretions and relictions exclusive as to all the world, except where rights conflict with rights of public for navigation purposes. Accretion is the increase in land caused by the gradual deposit by water of materials on the shores, which deposit replaces the water at this location with dry land.

The prevailing doctrine that the causing or hastening of gradual deposits by artificial constructions, made by persons other than the benefited and claiming owner, does to prevent the doctrine of accretion from applying.

Nosek v. Stryker, 103 Wis.2d 633 (1981)

Discusses methods for determining riparian's exclusive rights to reach navigable waters. Exclusive use zone extends only so far as necessary to reach line of navigability. Riparian right limited to pier long enough and in position to reach nearest point of navigable water.

Sterlingworth Condominium Assoc. V DNR, 205 Wis 2d. 702 (Ct. App., 1996)

This case deals with the cumulative impacts of piers, boats and other riparian impacts on the shores of navigable waters. It updates Hixon and provides excellent language on cumulative impacts of piers and boats in the near shore area. The Court stated:

"Whether it is one, nine or ninety boat slips, each slip allows one more boat which inevitably risks further damage to the environment and impairs the public's interest in the lakes....In our opinion, the DNR, in limiting Sterlingworth's permit...carried out its assigned duty as protector of the overall public interest in maintaining one of Wisconsin's most important natural resources."

PUBLIC RIGHTS

Willow River Club v. Wade, 100 Wis. 86 (1898)

Stream bed title in riparian owner; right to fish is a public right. Question was as to right to take fish from Willow River; discusses ownership of bed of stream and trust doctrine. What is navigable water. Distinction between navigable water of the United States and navigable water of the state. Who owns fish in water of United States as contrasted to state. Who owns fish in water. Riparian owners can't prevent fishing in navigable water.

Johnson v. Eimerman, 140 Wis. 327 (1909)

Pond created by dam in now navigable creek is navigable. Rights of public in artificial condition thus created.

Doemel v. Jantz, 180 Wis. 225 (1923)

The rights of a riparian owner must be condemned. Such riparian rights include the right to build piers and walls to prevent erosion as well as the right to accretions and relictions; trust doctrine; public rights to high and low water line; the public cannot trespass on land between the high and low water lines when the water is low.

Haase v. Kingston Co-op Creamery Assn., 212 Wis. 585 (1933)

Public use of navigable artificial waters can legally become a natural condition.

Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252 (1949)

Authority of commission to issue licenses for privately owned land under navigable waters; trust doctrine; riparian rights; whether stream is navigable or not; trapping not an incident to navigation and so no public right to trap; right of navigation includes incidental use of bottom.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, and hunting as public rights in authorizing dam.

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even though not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weigh public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of a scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

State v. Lake Delton, 93 Wis.2d 78 (1979)

Watching a water ski show is an incident of navigation. No single public use of navigable water is absolute.

Johnson v. Seipel, 152 Wis.2d 636 (Ct.App. 1989)

While the public has the right to unobstructed use of navigable waters for recreational and commercial purposes, users of public waters also owe a duty of reasonable care and use to riparian owners. The fact that a user of public waters does not violate any state or local boating laws does not relieve him/her of the duty to exercise ordinary care.

RIPARIAN RIGHTS

Kimberly & Clark v. Hewitt, 79 Wis. 334 (1891)

Rights of riparians on stream to water, reasonable flow.

Northern Pine Land Co. v. Bigelow, 84 Wis. 157 (1893)

Riparian has right to construct pier to navigable depth.

Case v. Hoffman, 84 Wis. 438 (1893)

Right of landowner to have flow of stream through lands.

Priewe v. Wisconsin State Land & Imp. Co., 93 Wis. 534 (1896)

Right to drain lake under Ch. 169, Laws of 1887. Right of riparians to have normal level maintained. Defines riparian land. State can make grants in waters only for public purposes.

Thomas v. Ashland S. & I. R. L. R. Co., 122 Wis. 519 (1904)

Rights of owner on shoreline of navigable lake.

Doemel v. Jantz, 180 Wis. 225 (1923)

The rights of a riparian owner must be condemned. Such riparian rights include the right to build piers and walls to prevent erosion as well as the right to accretions and relictions; trust doctrine. Riparian ownership gives a person exclusive privileges of the shore for the purposes of access to his/her land and the water. However, in so far as the structures erected by the riparian owners into navigable waters interfere with the public rights of navigation, a riparian owner takes and holds riparian rights subject to the public rights; public rights to high and low water line; the public cannot trespass on land between the high and low water lines when the water is low.

Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252 (1949)

Authority of commission to issue licenses for privately owned land under navigable waters; trust doctrine; riparian rights; whether stream is navigable or not; trapping not an incident to navigation and so no public right to trap; right of navigation includes incidental use of bottom.

Bond v. Wojahn, 269 Wis. 235 (1954)

Plaintiff ran his boat into defendant's pier. Even though the plaintiff had no PSC permit for the pier, it was not a per se nuisance without any proof that it actually interfered with navigation.

Riparian owner given qualified title to center of stream subject to power of state to preserve public use. One right of owner is to build a pier to reach navigable water.

History of control of navigable waters in Wisconsin.

Colson v. Salzman, 272 Wis. 397 (1955)

State ownership in trust of land under inland, meandered, navigable lake.

Access easement granted to lot owners in a plat did not make them riparian owners. The original owner of the plat as a riparian owner, could permit lot owners to build piers subject to superior state and federal rights.

Bino v. City of Hurley, 273 Wis. 10 (1955)

Defendants passed an ordinance prohibiting swimming and boating on a lake - plaintiffs were riparian owners.

Riparian rights are substantial and valuable property rights and cannot be taken without compensation.

Dissent - riparian rights are subject to power of state or city to protect purity of water supply of a city.

Rondesvedt v. Running, 19 Wis.2d 614 (1963)

Alluvion formed by accretion belongs to owner of the upland to which it is contiguous, but the riparian right to access to water and circumstances change this rule so that accretions in front of riparian property goes to owner so access can be maintained.

Mayer v. Grueber, 29 Wis.2d 168 (1965)

Whether or not riparian rights are conveyed with the adjoining uplands depends largely upon the intent of the grantor, it is only presumed that the owner of the upland has riparian rights - this presumption doesn't apply where an artificial body of water is concerned. An adjoining owner must also own the right to use of the lake.

Nosek v. Stryker, 103 Wis.2d 633 (1981)

Discusses methods for determining riparian's exclusive rights to reach navigable waters. Exclusive use zone extends only so far as necessary to reach line of navigability. Riparian right limited to pier long enough and in position to reach nearest point of navigable water.

W.H. Pugh Coal Co. v. State, 105 Wis.2d 123 (Ct.App. 1981)

The right of a riparian owner to accretions upon his/her land is absolute against all the world except to the public's rights of navigation. However, a riparian owner is not allowed to take title to land accretion which was induced by his/her actions.

The fact that the State holds lake beds in public trust is not sufficient to grant it title to accretions on a riparian owner's land without just compensation.

Zinn v. State, 112 Wis.2d 417 (1983)

A riparian owner who temporarily lost title to 200 acres of riparian property and temporarily lost his sole riparian rights due to an erroneous OHWM determination presented a valid takings claim.

State v. Bleck, 114 Wis.2d 454 (1983)

While the public trust doctrine is designed to protect the rights of all members of the public in navigable waters, Wisconsin law has recognized the existence of certain common law rights that are incident of riparian ownership (i.e., access to and from lake, right to build wharves and piers, right to swimming, boating, and boating, etc.). The fact that §30.12 only allows riparians to apply for structure permits does not violate the public trust doctrine. Rather, the legislature simply recognized the common law distinction between riparians and nonriparians. Such riparian rights are still subject to the public's paramount right and interest in navigable waters.

Cassidy v. Dept. of Natural Resources, 132 Wis.2d 153 (Ct.App. 1983)

An easement holder does not have the status of a riparian owner under §30.12, Stats. and therefore may not be granted a structure permit.

de Nava v. DNR, 140 Wis.2d 213 (Ct.App. 1987)

Even if an easement grants the holder the right to install a mooring buoy and boat lift, holder of such easement is not a riparian owner.

Riparian owners have the exclusive right of access to and from navigable waters to his/her shore. Riparian owners also have the right to build piers, harbors, wharves, booms and similar structures in aid of navigation.

Riparian rights are not freely alienable in the case of natural lakes.

Johnson v. Seipel, 152 Wis.2d 636 (Ct.App. 1989)

While the public has the right to unobstructed use of navigable waters for recreational and commercial purposes, users of public waters also owe a duty of reasonable care and use to riparian owners.

Klingseisen v. DNR, 163 Wis.2d 921 (1991)

Riparian owners along an artificial channel did not own the water flowing from a navigable waterway and therefore could not rightfully exclude the public from using the water over their land.

Godfrey Co. v. Lopardo, 164 Wis.2d 352 (Ct.App. 1991)

Sec. 30.131, Wis. Stats., gives riparian rights to easement holders in limited circumstances. That is, it grants an easement holder the right to maintain a pier or wharf if the statutory criteria are met.

Each riparian owner is entitled to exclusive possession to the extent necessary to reach navigable waters, to have reasonable ingress and egress to navigable waters, and to have reasonable access for bathing and swimming. Thus, in a boundary dispute, the court was to balance the rights of all lakefront owners and the public.

Sterlingworth Condominium Assoc. v DNR, 205 Wis 2d. 702 (Ct. App., 1996)

This case deals with the cumulative impacts of piers, boats and other riparian impacts on the shores of navigable waters. It updates Hixon and provides excellent language on cumulative impacts of piers and boats in the near shore area. This case discusses what are considered reasonable uses for riparian proprietors for the placement of structures in the near shore area.

STRUCTURES AND FILLS

Doemel v. Jantz, 180 Wis. 225 (1923)

The rights of a riparian owner must be condemned. Such riparian rights include the right to build piers and walls to prevent erosion as well as the right to accretions and relictions; trust doctrine; public rights to high and low water line; trespass on land between high and low water line.

S. S. Kresge Co. v. Railroad Commission, 204 Wis. 479 (1931)

Action for declaratory judgment of plaintiff's right to erect a building over bed of Rock River in Beloit. No one can be given power to invade the bed of a stream which would preclude the state from removing such structures when necessary in aid of navigation.

Luening v. PSC, 261 Wis. 516 (1952)

Federal navigability test.

State v. PSC, 275 Wis. 112 (1956)

Application by City of Madison to fill on bed of Lake Wingra at Vilas Park - granted - review sought by State of Wisconsin at request of Wisconsin Conservation Commission.

Trust doctrine is not violated by minor alterations - lakes do not have to remain in the same condition for all time when done for public purposes.

Permit gives permission to use the property only, it is not a grant of the property.

Hixon v. Public Service Commission, 32 Wis.2d 608, 146 N.W. 2d 577 (1966)

While the State of Wisconsin holds the beds of navigable waters in trust for all its citizens, the trust doctrine does not prevent minor alterations of the natural boundaries between water and land. However, in this case, the Court ordered a 120 foot long breakwater to be removed as an obstruction. The Court noted that the State of Wisconsin must look at the cumulative impacts of fills, stating

"There are over 9,000 navigable lakes in Wisconsin covering an area of over 54,000 square miles. A little fill here and there may seem to be nothing to become excited about, but one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body of water may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage; once gone, they disappear forever."

State v. Lamping, 36 Wis.2d 328 (1967)

Floating bog defined. A material factor to be considered in determining whether a peninsula such as that involved in the instant case is a floating bog on land is the degree to which it is anchored or fastened to the underlying lake bed; if it is so securely anchored or fastened thereto that its surface does not rise or fall with the raising or lowering of the lake's water level, it would no longer constitute a floating bog.

Claflin v. State Department of Natural Resources, 58 Wis.2d 182 (1973)

Determination that specific structure is detrimental to public interest on grounds that it impairs natural beauty of lake is proper basis for denial of a permit for the structure. The natural beauty of our northern lakes is one of the most precious heritages Wisconsin citizens enjoy. It is entirely proper that the natural beauty should be protected against specific structures that may be found to mar that beauty.

State v. McFarren, 62 Wis.2d 492 (1974)

Bulkhead line defined.

A bulkhead line is not merely the natural shoreline but is a line legislatively established by a municipality which may differ from the existing shoreline. Existence of bulkhead is part of description of violation of s. 30.12.

State v. Deetz, 66 Wis.2d 1 (1974)

Section 30.12, Stats., prohibiting deposit of materials or placing of any structure on the bed of a navigable water without a permit merely restates the common law and was designed to prohibit only deliberate fills.

The State's contention that under the public trust doctrine a cause of action arises whenever there is interference with the public's right to use navigable waters, irrespective of the cause thereof, is rejected because while the "public trust" doctrine grants both the State and citizens acting on its behalf the standing to vindicate rights created by existing state law, it does not of itself create a cause of action.

State v. Bleck, 114 Wis.2d 454 (1983).

Only riparian owners may obtain a structure permit under §30.12. This is merely a recognition of the common law distinction between riparian and nonriparian rights.

Since "structure" is not defined for purposes of Chapter 30, the word is to be given its common meaning. The dictionary definition of "structure" is "something constructed or built...something made up of more or less interdependent elements or parts..."

A nonriparian's ski jump constituted a "structure" within the meaning of §30.12.

The application of §30.12 to a nonriparian's ski jump does not regulate the public's recreational use of navigable waters, but only the placement of unlawful structures.

Cassidy v. Dept. of Natural Resources, 132 Wis.2d 153 (Ct.App. 1983)

The holder of an easement is not a riparian owner for the purposes of §30.12 and therefore cannot be granted a structure permit.

A riparian owner does not have an absolute right to place structures on a lakebed because the structure must meet the statutory criteria before the DNR will issue a permit allowing the structure.

de Nava v. DNR, 140 Wis.2d 213 (Ct.App. 1987)

Even if an easement grants the holder the right to install a mooring buoy and boat lift, the easement holder is not a riparian owner. An easement only grants the right to use or privilege in the land of another and not title. Easement holder could not maintain boat buoy and boat lift under §30.12, Stats.

SURFACE WATERS

Thomson v. Public Service Commission, 241 Wis. 243 (1942)

The Supreme Court adopted the Restatement of Torts definition of surface waters. This definition is as follows:

"The term 'surface waters' is used to describe those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth or found their way into a stream or lake. The term does not comprehend waters impounded in artificial ponds, tanks, or water mains."

Houselet v. DNR, 110 Wis.2d 280 (Ct.App. 1981)

Surface waters and lakes are not mutually exclusive categories. Therefore, the DNR properly classified part of a lake as a wetland.

Under the Restatement definition of "surface waters" adopted in Thomson v. Public Service Commission, a lake cannot be a wetland and a lake at the same time. However, Wisconsin regulations define surface waters more broadly than Thomson (NR 101.03(4) & NR 102.01(7)). In this case, the broader definitions controlled.

Crest Chevrolet, etc. v. Willemsen, 129 Wis.2d 129 (1986)

Under the reasonable use doctrine, an analysis of the social utility of the actor's conduct which interferes with the natural surface water flow is not required.

Discussion of reasonable use doctrine.

TAKINGS

Just v. Marinette County, 56 Wis.2d 7 (1972)

Compensation is necessary when restrictions are placed on property in order to create a public benefit rather than to prevent a public harm. A shoreland ordinance which maintains the natural status quo of the environment does not create a public benefit, but alleviates a public harm.

The Court stated, "Is the ownership of a parcel of land so absolute that man can change its nature to suit any of his purposes?...An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others...It is not an unreasonable exercise of the [police power] to prevent harm to public rights by limiting the use of private property to its natural uses."

If a regulation is to avoid a public harm, then effects on private landowners are not compensable unless the regulation results in a value diminution to the landowner which is so great as to amount to a confiscation.

The depreciation of land value resulting from a state restriction is not to be based on what the land would be worth if it could be filled and used for commercial or residential development, but on the use of the land in its natural state. In reaching this conclusion, the Court stated,

"The Justs argue their property has been severely depreciated in value. But this depreciation of value is not based on the use of the land in its natural state but on what the land would be worth if it could be filled and used for the location of a dwelling. While loss of value is to be considered in determining whether a restriction is a constructive taking, value based upon changing the character of the land at the expense of harm to public rights is not an essential factor or controlling."

W.H. Pugh Coal Co. v. State, 105 Wis.2d 123 (Ct.App. 1981)

The fact that the State holds lake beds in public trust is not sufficient to grant it title to accretions on a riparian owner's land without just compensation.

Zinn v. State, 112 Wis.2d 417 (1983).

A compensable taking occurs when a government restriction placed on property "practically or substantially renders the property useless for all reasonable purposes."

Temporary takings are compensable.

The loss of sole riparian rights and of title to 200 acres of riparian property due to an erroneous OHWM determination by the DNR presents a valid takings claim.

The fact that the DNR had not intended to take Zinn's property is irrelevant because it is the effect of the State's action that triggers the Just Compensation Clause, not the government's intent.

M & I Marshall Bank v. Town of Somers, 141 Wis.2d 271 (1987)

The takings analysis outlined in Just is not limited to a situation where the lands involved are connected to the state's duty under the public trust doctrine. Whether the regulated land is a wetland within a shoreland area, or land within a primary enforcement corridor, or an isolated swamp - the test to be applied is the same: public benefit vs. public harm.

Otte v. DNR, 142 Wis.2d 222 (Ct.App. 1987)

The DNR's order to a riparian landowner to restore a filled ditch at his own expense was a compensable taking because it deprived Otte of substantially all beneficial use of a portion of his land (i.e., he could no longer use the land occupied by the ditch for any other purpose.)

Sec. 32.01(1), Stats, does not authorize the DNR to take a person's private property for the purpose of aiding it in regulating and controlling a lake's level.

TRUST DOCTRINE

Mendota Club v. Anderson, 101 Wis. 479 (1899)

Question was as to status of a certain area on the north end of Lake Mendota. The building of the Farwell Dam in 1850 raised the level of water in the lake some 4 feet giving rise to the question of whether the area was navigable water and of ownership to its bottom, as contrasted to rights claimed through a tax deed allegedly conveying the areas. Discusses trust doctrine and also status of artificial condition created by dam.

Pewaukee v. Savoy, 103 Wis. 271 (1899)

This was an appeal from a judgment restraining defendants from placing a fence along street line to prevent frontage therefrom to Pewaukee Lake. The natural shoreline did not reach the limit or the street, but an artificial line maintained more than 20 years brought the water level to the street limit. Case discusses trust doctrine. Holds artificial condition had become its natural condition by existence of new level for more than 20 years and, as regarding the submerged lands, are characteristics of a natural lake to that extent. Dedication by riparian owners conclusively presumed where it exists for 20 years. Status of streets terminating on navigable water.

Priewe v. Wis. S. L. & Imp. Co., 103 Wis. 537 (1899)

Validity of scheme to drain Muskego Lake Purportedly under ch. 169, Laws of 1887, ch. 202, Laws of 1891. Right of riparians to have normal level maintained. Defines riparian land. State cannot destroy the rights of a riparian owner on a lake without compensation or without the owner's consent. Discusses trust doctrine - legislature can't free itself of the trust.

Muench v. PSC, 261 Wis. 492 (1952)

Trust doctrine extends to land only as long as it remains under navigable water. "Navigable in fact". PSC considers fishing, scenic beauty, boating, and hunting as public rights in authorizing dam.

The existing "County Board Law" section of a state statute was held unconstitutional because it permitted the public right to enjoyment of fishing, hunting or natural scenic beauty in a navigable stream to be seriously impaired or destroyed through action of a county board. Such delegation of power by the Legislature, involving a complete abdication of the trust, is void.

Further; (1) Public Service Commission decisions are reviewable in court. (2) Any citizen of the state, even though not a riparian owner and living considerable distance from the waters concerned, can bring action as an aggrieved and directly affected party. (3) It is the duty of the state through its Conservation Commission to appear in behalf of the public before the Public Service Commission in their judicial capacity in such cases. (4) The Public Service Commission will be required to weigh public rights for recreational enjoyment of a stream against the public benefits which would result from the construction of a dam. (5) The right of the citizens of the state to enjoy our navigable streams for recreational purposes, including the enjoyment of a scenic beauty, is a legal right that is entitled to all the protection which is given to financial rights.

State v. PSC, 275 Wis. 112 (1956)

Application by City of Madison to fill on bed of Lake Wingra at Vilas Park - granted - review sought by State of Wisconsin at request of Wisconsin Conservation Commission.

Trust doctrine is not violated by minor alterations - lakes do not have to remain in the same condition for all time when done for public purposes.

Permit gives permission to use the property only, it is not a grant of the property.

Just v. Marinette County, 56 Wis.2d 7 (1972)

Trust doctrine and state's exercise of police power.

The active public trust duty of the state in respect to navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing, recreation, and scenic beauty. The public trust extends to lands adjacent to navigable waters. Shoreland zoning is one means for the state to accomplish its duties under the public trust.

"The state of Wisconsin under the trust doctrine has a duty to eradicate the present pollution and to prevent further pollution in its navigable waters. This is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the environment." Since shoreland zoning merely protects the status quo of the environment, it cannot be held to result in a compensable taking.

Case examines conflict between the state's duty as a protector of the public interest in stopping the despoliation of natural resources and an owner's asserted right to use his property as he wishes.

Restricting conversion of land, when land in present state has public benefit, is not an unreasonable exercise of police power. The Court stated, "Is the ownership of a parcel of land so absolute that man can change its nature to suit any of his purposes? ... An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others...It is not an unreasonable exercise of the [police power] to prevent harm to public rights by limiting the use of private property to its natural uses."

State v. Deetz, 66 Wis.2d 1 (1974)

Section 30.12, Stats., prohibiting deposit of materials or placing of any structure on the bed of a navigable water without a permit merely restates the common law and was designed to prohibit only deliberate fills.

The State's contention that under the public trust doctrine a cause of action arises whenever there is interference with the public's right to use navigable waters, irrespective of the cause thereof, is rejected because while the "public trust" doctrine grants both the State and citizens acting on its behalf the standing to vindicate rights created by existing state law, it does not of itself create a cause of action.

W.H. Pugh Coal Co. v. State, 105 Wis.2d 123 (Ct.App. 1981)

The fact that the State holds lake beds in public trust is not sufficient to grant it title to accretions on a riparian owner's land without just compensation.

State v. Bleck, 114 Wis.2d 454 (1983)

Public trust doctrine has been expanded to protect not only commercial navigation, but also recreational and nonpecuniary interests. Even though the state holds the beds of navigable waters in trust for the public, it still may authorize limited encroachments upon these beds if the public interest would be served by doing so.

The application of §30.12 to a nonriparian's ski jump did not violate the public trust doctrine because riparian rights under that statute were still subject to the paramount public interest in navigable waters and because the statute only regulated the placement of structures on the beds of navigable waters, not the recreational use and enjoyment of those waters.

Wisconsin Environmental Decade v. DNR, 115 Wis.2d 381 (1983).

In deciding whether to issue water permits, the DNR must consider the public interest in navigable waters, but the public trust doctrine was not to be "expanded to cover ... downtown preservation." In other words, the DNR need not consider secondary socioeconomic impacts in making the threshold decision of whether to prepare an EIS.

State v. Trudeau, 139 Wis.2d 91 (1987)

The boundary of the public trust associated with the bed of a navigable body of water is the OHWM. The state holds title to the beds of lakes up to the OHWM.

Village of Menomonee Falls v. DNR, 140 Wis.2d 579 (1987)

The delegation of authority under the public trust doctrine is permissible when in furtherance of that trust and where delegation will not block the advancement of the paramount public rights in navigable waters. Therefore, the village did not have the power to modify the creek under home rule.

The enjoyment of scenic beauty is one of the public rights in navigable waters to be protected by the State under the public trust doctrine.

Klingseisen v. DNR, 163 Wis.2d 921 (1991)

To be effective, the public trust doctrine must include the protection of public, artificial waterways that are directly and inseparably connected with natural and navigable waters.

WATERCOURSES

Hoyt v. City of Hudson, 27 Wis 656 (1871)

Discusses distinction between the flow of surface waters and a watercourse. The Court defines "watercourse" as follows:

"The term 'watercourse' is well defined. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, sides or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire surface of a tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the water flowing in the hollows or ravines in land which is the mere surface waters from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not in legal contemplation water-courses."

Lessard v. Stram, 62 Wis. 112 (1885)

The mere occasional flow of surface water through a ravine does not constitute a "watercourse." The Court applied the Hoyt definition in rejecting a claim that surface water occasionally flowing out of a coolie and over lowlands in no discernable pattern was a watercourse.

Lally v. Rossman, 82 Wis. 147 (1892)

In government grants, the watercourse itself is the boundary, not the meander line.

Last Revised: Tuesday February 05 2008