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On Behalf of | Jul 15, 2019 | Firm News

In old Western movies with John Wayne, there were water battles between a big rancher who not only wanted to control his land but if a river ran through his land, to control that river.  This resulted in some great Hollywood shoot-outs between these big land owners and some “up and comin’ little pilgrim.”

About the time John Wayne movies were made, in 528 AD, a Roman Emperor, named Justinian, produced a code of law called “Institutes of Justinian” included the phrase, “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.” These same concepts were incorporated into English law in the Magna Carta, in 1225, under which the sovereign –the King –owned the public lands, but held them in trust for the public, and that all citizens had the right to use and enjoy those public resources.

Flash forward to Wisconsin today.  You are fishing on a Wisconsin lake around a homeowner’s pier.  The homeowner says to get away from her pier because she owns the water around her pier.  If you do not move she will call the police.  You do not move.  Police are called.  What should the police do?

Article IX, Section 1 or the Wisconsin Constitution provides that “…the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States….” This language provides the basis for the Public Trust Doctrine in navigable water in Wisconsin.  However, Wisconsin has gone further.  In recognizing the importance for travel, recreation and hunting and fishing. The Wisconsin Supreme Court has said that the “wisdom of the policy which steadfastly and carefully preserved to the people the full and free use of public waters cannot be questioned. Nor should it be limited by narrow constructions.”  Diana Shooting Club v. Husting, 156 Wis. 261 (1914).

Professor Arlen Christenson, a Professor Emeritus of Law and Environmental Studies at the University of Wisconsin-Madison Law School as well as founding Board President of Midwest Environmental Advocates, lays out simply what this the provision means: “It holds that the state is the trustee of the waters of the state for the benefit of the people of the state,” Christenson said. “And so the trustee has a duty to care for, manage, improve and protect the water for the benefit of the citizens. It’s not as if the state owns the water, but the people are the beneficial owners of water, just as the beneficiaries of a trust.”  Brian Weidy, “What is the Wisconsin Public Trust Doctrine?” The Confluence (Jan.16 2015).  See also, Quick, John. 1994. The Public Trust Doctrine in Wisconsin. Wisconsin Environmental Law Journal, Vol. 1, No. 1.  (2) “Champions of the Public Trust, A History of Water Use in Wisconsin” study guide. 1995. Wisconsin Department of Natural Resources Bureau of Water Regulation and Zoning. Champions of the Public Trust

The public trust doctrine gives title of the beds of all lakes and ponds, and of rivers navigable in fact, within the state, up to the line of the ordinary high-water mark, to the state to hold in trust to preserve the rights of the people to enjoy the use of the water. Id. Essentially, the public trust doctrine gives title of the beds of the water to the state to ensure that the public is guaranteed “reasonable use” of the water, including recreational purposes such as boating, swimming, fishing, hunting, and to preserve scenic beauty. State v Bleck, 114 Wis 2d 454, 338 NW2d 492 (1983).

Wisconsin enacted Article I, Section 26 of the Wisconsin Constitution which reads: “The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law.”  As of November 9, 2018, 22 states had constitutional provisions providing for the right to hunt and fish. Vermont was the first state to constitutionalize such a right in 1777. The other 21 states had all adopted right to hunt and fish amendments since 1996.

By statute, no person may interfere or attempt to interfere with lawful hunting, fishing, or trapping with the intent to prevent the taking of a wild animal, or intentionally interfere with or intentionally attempt to interfere with an activity associated with lawful hunting, fishing, or trapping, by doing any of the following:
1. Harassing a wild animal or by engaging in an activity that tends to harass wild animals.
2. Impeding or obstructing a person who is engaged in lawful hunting, fishing or trapping.
3. Impeding or obstructing a person who is engaged in an activity associated with lawful hunting, fishing or trapping.
4. Disturbing the personal property of a person engaged in lawful hunting, fishing or trapping.
5. Disturbing a lawfully placed hunting blind or stand.
6. Disturbing lawfully placed bait or other material used to feed or attract a wild animal.
7. Engaging in a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose and that are intended to impede or obstruct a person who is engaged in lawful hunting, fishing, or trapping, or an activity associated with lawful hunting, fishing, or trapping, including any of the following:
a. Maintaining a visual or physical proximity to the person.
b. Approaching or confronting the person.
c. Photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording the activities of the person. This subd. 7. c. applies regardless of where the act occurs.
d. Causing a person to engage in any of the acts described in subd. 7. a. to c.
8. Using a drone, as defined in s. 941.292 (1), to conduct any activity prohibited under subds. 1. to 7.  Wis. Stat. Sec. 29.083 (2) Interference with hunting, fishing or trapping.  See also, Willow River v. Wade, 100 Wis. 86 (1898) ( public has a right to fish in navigable waters).

Members of the public may use any exposed shore area of a stream without the permission of the riparian (landowner) only if it is necessary to exit the body of water to bypass an obstruction.  Wis. Stat. Sec. 30.134 (2).  Riparian owners are those who have title to the ownership of land on the bank of a body of water. Ellingsworth v Swiggum, 195 Wis 2d 142, 536 NW2d 112 (Wis App Ct 1995). Also, a riparian owner is accorded certain rights based upon title to the ownership of shorefront property. Sea View Estates Beach Club, Inc v Wisconsin Department of Natural Resources, 223 Wis 2d 138, 588 NW2d 667 (1998). Wisconsin also provides that riparian rights include the right to use the shoreline, have access to the waters, the right to reasonable use of the waters for domestic, agricultural, and recreational purposes, the right to construct a pier or similar structure in aid of navigation, and exclusive possession to the extent necessary to reach navigable water. Id.  Weird situations can develop where a waterline recedes and exposes the land that was previously underwater.  In WH Pugh Coal Company v State of Wisconsin, 157 Wis 2d 620, 460 NW2d 787 (1990) the court held that a coal company’s riparian rights entitled it to a parcel of land that was created from accretion along the shores of Lake Michigan, even though the state held title to the beds of the lake under the public trust doctrine.

Further, no landowner may prohibit a member of the public from using an exposed shore area (meaning the area of the bed of a navigable body of water that is between the ordinary high-water mark and the water’s edge) of a stream. No riparian may charge a fee for the use of an exposed shore area of a stream.  No person may obstruct a highway with the intention to impede or prohibit access by the public to an exposed shore area of a stream.  Wis. Stat. Sec. 30.134 (4).  The right granted to the public under to use an exposed shore area of a stream does not apply to any of the following: to an exposed shore area of an impoundment on a stream, any artificial ditch, any location on a stream where there is no surface water flowing in the stream.  Wis. Stat. Sec. 30.134 (5)
Any person may not (a) Unlawfully obstructs any navigable waters and thereby impairs the free navigation thereof; (b) Unlawfully places in navigable waters or in any tributary thereof any substance that may float into and obstruct any such waters or impede their free navigation; Constructs or maintains in navigable waters, or aids in the construction or maintenance therein, of any boom not authorized by law.  Wis. Stat. Sec. 30.15.  The Wisconsin Attorney General has opined that if an unattended and anchored boat is left on navigable water for an unreasonable length of time, it constitutes a violation. 63 Atty. Gen. 601.  The governing body of a city, village or town may remove any watercraft, float or pier which constitutes an unlawful obstruction to navigation.  Wis. Stat. Sec. 30.16.  See, Claflin v. DNR, 58 Wis. 2d 182(1972); Hixon v. PSC, 32 Wis. 2d 608(1966)

Clearly, therefore an “[a]n 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.”  Just v. Marinette, 56 Wis. 2d 7 (1972).  Other decisions also upheld the validity of regulations protecting navigable waters and wetlands include Zealy v. City of Waukesha, 201 Wis. 2d 365 (1996) and R.W. Docks & Slips, 2001 WI 73, 244 Wis. 2d 497.

However in R.W. Docks & Slips v. DNR, 2001 WI 73, ¶18, 244 Wis.2d 497 the Wisconsin Supreme Court stated riparian rights include:
[t]he  right  to  reasonable  use  of  the  waters  for domestic,  agricultural  and  recreational  purposes;  the right  to  use  the  shoreline  and  have  access  to  the waters; the right to any lands formed by accretion or reliction;  the  right  to  have  water  flow  to  the  land without  artificial  obstruction;  the  limited  right  to intrude  onto  the  lakebed  to  construct  devices  for protection   from   erosion;   and   the   right,   now conditioned by statute, to construct a pier or similar structure in aid of navigation

Diana Shooting Club v. Husting, 156 Wis. 261 (1914) recognized the public nature of navigable waters.  So the question becomes what is a “navigable water”?  The test for navigability is :“any stream is ‘navigable in fact’ which is capable of floating any boat, skiff, or canoe, of the shallowest draft used for recreational purposes…. Navigability is not to be determined by the normal condition of the stream…The test is whether the stream has periods of navigable capacity which ordinarily recur from year to year, e.g., spring freshets…. 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.” DeGaynor and Co., Inc. v. DNR, 70 Wis. 2d 936, 946-47 (1975).  This definition of navigable water is true for urban or rural property.  Village of Menomonee Falls v. DNR, 140 Wis. 2d 579 (Ct. App.,1987)