Anchor Point Condominium Owner’s Association v. Fish Tale Properties, 2008 WL 2609706 (Wis. Ct. App. July 3, 2008).
Berkos v. Shipwreck Bay Condominium Association, 2008 WL 2761313 (Wisc. Ct. App. July 17, 2008).

Stephanie Showalter, J.D., M.S.E.L.

Wisconsin state law prohibits a riparian owner from conveying any riparian right, except for the right to access the water by crossing over the upland.1 This prohibition is quite unique. In the vast majority of states, riparian rights can be severed from the land and transferred freely. In July, the Wisconsin Court of Appeals issued two opinions which dramatically expand the scope of the prohibition.

Riparian Rights
Owners of waterfront property have some special rights that owners of landlocked property do not have. These rights are referred to as riparian, when the property abuts rivers, and littoral, when it abuts lakes and oceans. In Wisconsin courts often use the terms interchangeably. In Wisconsin, riparian rights include “the right to use the shoreline and have access to the waters, the right to reasonable use of the waters for domestic, agricultural and recreational purposes, and the right to construct a pier or similar structure in aid of navigation.”2

 In 1994, the Wisconsin Legislature passed a law restricting the ability of riparian owners to transfer these rights to others. Section 30.133(1) of the Wisconsin Statutes states:

no owner of riparian land that abuts a navigable water may convey, by easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water. This right to cross the land may not include the right to place any structure or material in the navigable water.

Section 30.133(1) was the Legislature’s response to the Wisconsin Supreme Court’s holding in Stoesser v. Shore Drive Partnership.3 The issue in Stoesser was whether riparian owners could convey riparian rights to non-riparian landowners through an easement. Homeowners in a subdivision with no riparian property sought to enjoin Shore Drive Partnership, the owner of a lakefront bar and restaurant, from placing a pier or other structure in the water which would interfere with the homeowners’ rights to use the lakeshore. The homeowners claimed riparian rights through an easement in a 1939 deed which reserved for the owners in the subdivision the right “to the use of the channel as a means of ingress and egress” and “to use the lake shore for bathing, boating, or kindred purposes.”4 The Court concluded that the easement was valid to carry out the parties’ intent that the owners in the subdivision have access to the lake via Shore Drive’s property because “Wisconsin follows the general rule that riparian rights can be conveyed to non-riparian owners by easement.”5 Shore Drive could not interfere with those rights. The Legislature obviously disagreed with the court’s conclusion and enacted A7 30.133 which “seems designed primarily to prohibit the construction of piers by nonriparians.”6

Right to Use Boat Slips
On July 3, 2008, the Court of Appeals issued its opinion in Anchor Point Condominium Owner’s Association v. Fish Tale Properties. The Asso­ ciation had filed suit to prevent guests of Fish Tale’s restaurant from using the Association’s private piers and boat slips. Some of Fish Tale’s customers use the pier to moor their boats to gain access to the land and the restaurant. The question before the court was whether documents purporting to establish the right of a non-riparian to use piers and boat slips were invalid transfers of riparian rights under A7 30.133(1).

The properties in question were two adjacent lots, one of which abutted Lake Wisconsin. The restaurant is located on the non-riparian lot. When the riparian lot was sold to develop condos, documents were executed creating an easement for shared driveways and parking lots between the two properties and granting the restaurant property the right to use some of the condos’ piers, boat slips, and docks. The Association claimed these documents were in­ valid because they transfer riparian rights to non-riparian owners.

Fish Tale argued that the right to use piers and boat slips is not a riparian right. The Court of Appeals disagreed, holding that the use of pier and boat slip space is a riparian right. “Both pier use and pier placement are riparian rights, arising from a riparian owner’s owning land abutting navigable water.”7 The court’s reasoning adheres to the following logic: if the law grants you the exclusive right to place a pier, you also have the exclusive right to use that pier. Because the court concluded that the right to use a pier or boat slip is a riparian right, the Association could not transfer that right to Fish Tale.

In the alternative, Fish Tale contended that even if the right to use piers is a riparian right, a riparian owner may transfer that right pursuant to the exception in A7 30.133(1), which allows transfers to provide access to the water. The court disagreed, stating that the “plain language of the statute states that a riparian owner’s transferable rights are limited to the right to cross the land in order to have access to the water.”8 Fish Tale wants to use the piers to gain access to private land, not to cross private land to gain access to the water. According to the court, that is a riparian right that cannot be transferred separately from the land.

Reservation of Riparian Rights
In Berkos v. Shipwreck Bay Condominium Associ­ ation, a developer of a condominium complex attempted to reserve his riparian rights when he relinquished ownership of common areas, which included the lake shoreline, to the condo association. When the condominium owners refused to permit the developer to construct a marina along the shoreline, the developer sued asserting he was the owner of the riparian rights of the waters in front of the complex. The Court of Appeals voided this transfer as well.

The court based its conclusion on the similarity of the facts of this case to those in Stoesser – a non-riparian owner reserved riparian rights through an easement. Because the Legislature passed A7 30.133 to overturn the court’s decision in Stoesser, allowing a reservation here would run counter to legislative intent. Ac­ know­ledging that A7 30.133 does not explicitly refer to the reservation of riparian rights, the court read A7 30.133(1) as prohibiting “the severing by easement or by a similar conveyance of riparian rights from the riparian lands to which they are attached.”9

Conclusion
Daniel Berkos is expected to appeal his case to the Wisconsin Supreme Court. Berkos maintains that “he didn’t convey anything” and will most likely ask the Court to review the meaning of A7 30.133.10 The decision in Anchor Point may also be appealed. Fish Tale’s attorney has criticized the Court of Appeals decision saying, “Why should it matter to Wisconsin whose boat is in a pier?”11 The Wisconsin Supreme Court had better put its thinking cap on right now.

Endnotes
1.    Wisc. Stat. Ann. A7 30.133(1).
2.    ABKA Ltd. P’ship v. Wis. DNR, 648 N.W.2d 854, 866 (Wis. 2002).
3.    494 N.W.2d 204, 206 (Wis. 1993).
4.    Id.
5.    Id. at 208.
6.   Dan Tarlock, Law of Water Rights and Resources A7 3:86.
7.    Anchor Point Condominium Owner’s Associ­ation v. Fish Tale Properties, 2008 WL 2609706 at *13 (Wis. Ct. App. July 3, 2008).
8.    Id. at *15.
9.   Berkos v. Shipwreck Bay Condominium Association, 2008 WL 2761313 at *15 (Wis. Ct. App. July 17, 2008).
10. David Ziemer, Water Rights Can’t Be Reserved, Rules Wisconsin Court of Appeals, Wisc. L. J. (July 28, 2008).
11. David Ziemer, Use of Piers, Boatslips Held Invalid, Wisc. L. J. (July 9, 2008).