1/9/2019. Northwest Ordinance An Ordinance for the government of the Territory of the United States northwest of the River Ohio.

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1 Wisconsin the land of over 9,000 Lakes covering over 11,000 square miles! (in a state with about 65K square miles at least according to our friends at Google) Cheri Hipenbecker, Knight Barry Title Group, General Counsel cah@knightbarry.com 1 Northwest Ordinance An Ordinance for the government of the Territory of the United States northwest of the River Ohio. Virginia granted the Northwest Territory to the United States in 1784 on 2 conditions: (i) the new states carved from the NW territory be admitted to the Union with all of the rights and privileges of the old; and (ii) that all of the navigable waters therein be forever free public highways. Article 4 - The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, aswellto the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor. 2 Wisconsin Constitution Article IX Section 1 March 1848 Jurisdiction on rivers and lakes; navigable waters. SECTION 1. The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and 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, without any tax, impost or duty therefor. 3 1

2 Early Case Law Walker v. Shephardson (WI Supreme Ct 1855) - A riparian owner takes title up to the shore of a navigable lake, the state takes title to the lake's bed Barney v. Keokuk (US Supreme Court 1876) - Individual states have the right to determine for themselves the ownership of land under navigable waters Diedrich v. Northwestern Union Ry (WI Supreme Ct 1877) What is navigable water? The court broke from English common law defining when water was navigable if it was affected by the ebb and flow of the tide to the question of are the waters navigable in fact. Originally couched in terms of commerce and lumber transportation, this was expanded for development of resources in connection with hunting, fishing, swimming, and boating McLennan v. Prentice (WI Supreme Ct 1893) - Confirming that Wisconsin favors the trust doctrine, that the state holds the beds underlying navigable waters in trust for all of its citizens, subject only to the qualification that a riparian owner on the bank of a navigable stream has a qualified title in the stream bed to the center thereof. 4 Early Case Law Pewaukee v. Savoy (WI Supreme Ct 1899) - For a riparian owner situated alongside a river or stream, the riparian takes title to the bed of such river or stream up to its center or thread. Illinois Steel Co. v. Bilot (WI Supreme Ct 1901) On the question of who owns the title to beds of water and whether riparian owners have rights, harkening back to the Northwest Ordinance stating: The United States never had title, in the northwest territory out of which this state was carved to the beds of lakes, ponds, and navigable rivers, except in trust for public purposes; and its trust in that regard was transferred to the state, and must there continue forever, so far as necessary to the enjoyment thereof by people of this commonwealth. Whatever concession this state may make without violating the essentials of the trust, it has been held, can properly be made to riparian proprietors Franzini v. Layland (WI Supreme Ct 1903)- Riparian's title to the bed of a navigable stream, however, does not frustrate the state's trust powers because the riparian's title is by favor of the state and subject to all of the public rights intended to be preserved by the trust. 5 Public Trust - Scope of Use in WI Diana Shooting Club v. Husting (WI Supreme Ct 1914) (Dodge County) Issue Does Riparian owner have exclusive right to hunt on adjoining waters? Holding - Hunting on navigable waters is lawful when it is confined strictly to such waters while they are in a navigable stage, and between the boundaries of ordinary high-water marks. When so confined it is immaterial what the character of the stream or water is. It may be deep or shallow, clear or covered with aquatic vegetation. 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. Not decided - Whether the right exists in the public to hunt on a navigable stream, between ordinary high-water marks, which, owing to a low stage of water, is unnavigable,oronlandbetweensuchmarkswhichhas become dry or exposed, is not involved in this case and is not decided. 6 2

3 Can WI sell public trust lands? Priewe v. Wisconsin State Land & Improvement Co (WI Supreme Ct 1896) (Waukesha County) - Issue drain a lake and grant title to a non-riparian Holding Hell to the No. The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as are necessary to preserve inviolate the common right to enjoy those incidents which were not the subject of private ownership in navigable waters at common law Outcome - require such filling up of excavations as will restore the natural condition of the water in Muskego lake, as it would exist had there been no attempt to drain the lake under the act of 1891 Take away WI citizens can sue to enforce the Public Trust Doctrine and the courts can and will question legislative acts 7 But what if for the public good? Milwaukee v. State (WI Supreme Ct 1927) Issue Chicago is beating Milwaukee Factual points Construction of the St. Lawrence Seaway commenced The waters of Lake Michigan are naturally designed primarily to serve commercial purposes (vs. inland lakes which are more recreational) Milwaukee - great port on the Great Lake. Largest distributor of coal in the mid-west. Cost To reconstruct the inner harbor to meet thedevelopmentsofmodernnavigationonthe Great Lakes would involve an expenditure of money and a burden to the taxpayers which is appalling. 8 Yes - fill in and sell. The Big Lake Milwaukee v. State (WI Supreme Ct 1927) 1923 Legislation Conveyance to Illinois Steel Company - Blue land to be conveyed by the City to Illinois Steel Company; Green lands from Illinois Steel to City in exchange. Court holding - It is not the law, as we view it, that the State, represented by its legislature, must forever be quiescent in the administration of the trust doctrine, to the extent of leaving the shores of Lake Michigan in all instances in the same condition and contour as they existed prior to the advent of the white civilization in the territorial area of Wisconsin. However, it must alwaysbeborneinmindthatinthepresentcasethegrantto the Steel Company was not authorized for the promotion of the interests of a private corporation, but in the interests of a public corporation, in aid of navigation. The private interests are merely incidental to the procurement of the public interests Take aways Because of Lake Michigan s use for commercial ventures, it may be treated differently than inland lakes. Flexible nature of the public trust to promote the public interest of navigation. Plus Lake Michigan is HUGE, what s 1500 square feet of fill land relative to Lake Michigan as a whole? 9 3

4 Fill in Inland lakes State v. Public Service Commission (WI Supreme Ct 1957) (Dane County) Legislation Facts - fill and dredge Lake Wingra, reduced by approximately 11.4 %. Holding - We are of the opinion that the use of filled lake bed, to the extent authorized in ch. 282, Laws of 1953, for park improvement, including a parking area and appurtenant highways, as well as alterations which will aid navigation and other enjoyment of the water, does not violate the obligations of the trust Points: 1. Public bodies will control the use of the area. 2. The area will be devoted to public purposes and open to the public. 3. The diminution of lake area will be very small when compared with the whole of Lake Wingra. 4. No one of the public uses of the lake as a lake will be destroyed or greatly impaired. 5. The disappointment of those members of the public who may desire to boat, fish, or swim in the area to be filled is negligible when compared with the greater convenience to be afforded those members of the public who use the city park. My favorite quote - There must be a realistic and sane legal approach to this problem, namely, a balancing of public need and convenience against the interference with navigation involved 10 Dams - Raising the water level? Pewaukee v. Savoy (WI Supreme Ct 1899) (Waukesha County) 1838 dam constructed which artificially raised the level of Pewaukee Lake Savoy argued he owned the submerged lands and had a right to reclaim the land and exclude the public from passing over it to the line of the lake level as it existed in a state of nature Holding: Submerged lands of meandered lakes belong to the state in trust for public use. Title to submerged lands will be extended so as to include lands covered by an artificial raising of the level of the lake, if such artificial condition be continued so long as to become the natural condition. 11 Other outcomes Pewaukee v. Savoy (WI Supreme Ct 1899) 12 Flooded lands lakes (NOT streams): If a person flood his own land by artificially raising the level of the waters of a navigable lake and maintains that condition for more than twenty years, and the public use and enjoy the lake in such new condition, the title to such lands, so far as necessary to maintain such condition, will vest in the state by dedication. In such circumstances the artificial condition of the lake will be considered its natural condition, with all the incidents thereof. Riparian rights: If a public street or highway exists so that its boundary line and the waters of a navigable lake meet, the riparian rights incident to the land composing the street belong to the public. In such a situation there is no zone of private right between the street and the lake, but the public right is continuous from the street to the waters of the lake and from the waters of the lake to the street 4

5 Artificial Lakes Not H20 Mayer v. Grueber (WI Supreme Ct 1965) An artificial lake located wholly on the property of a single owner is his to use as he sees fit. If he is to be divested of these rights, it can only be by deed or the eventual acquisition of these rights by prescription or adverse possession. 13 Piers Yes you may but Diedrich v. Northwestern Union Ry (WI Supreme Ct 1877) Riparian rights proper are held to rest upon title to the bank of the water and not upon title to the soil under the water; riparian rights proper being the same, whether the riparian owner owns the soil under the water or not A riparian owner upon navigable water,... unless prohibited by local law, has the right to construct in shoal water, in front of his land, proper wharves or piers, in aid of navigation, and at his peril of obstructing navigation, throughthewaterfar enough to reach actually navigable water; this being held to further the public use of the water, to which the public title under the water is subordinate 14 Multiple Piers and El Docko ABKA Limited Partnership v. Wisconsin DNR (WI Supreme Ct 2002) Abbey Harbor marina developed ABKA purchased and expands to 407 boat slips ABKA filed a condo dec, 407 condo units, t defined as a 4X5X6 inch "lock box" and a limited common element boat slip Holding Condo Dec fails to create valid units b/c 4X5X6 inch "lock box" units have no independent use.. W/o a valid condo, the transfer of riparian rights is in violation of , which provides that "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." Riparian s have enhanced rights. Non-riparians not so much. BUT if a riparian easement existed for eons, may be permissible. 15 5

6 El Docko Hoy Section , Wis. Stats. (2007) 16 Defines Marina condominium as a condominium in which the common elements, limited common elements, or condominium units consist of or include boat docking facilities and to which either or both of the following apply: 1. One or more of the boat docking facilities is not appurtenant to a dwelling. 2. None of the condominium units are dwellings. Nonewdockos-Nonewmarinacondominiumson or after June 1, Any declaration for such a dockominium post June 1, 2007 is invalid and establishes ownership of the riparian land as a tenancy in common. Grandfather - Declaration creating a marina condominium recorded before June 1, 2007, shall be effective in creating the marina condominium regardless of subsequent activity affecting the declaration Does this prohibit long term leasing of boat slips? Structures in the H20 Historical context 1933 statute 30.02(1)(b): It shall be unlawful to deposit any material or to place any structures upon the bed of any navigable water where no shore line has been established or beyond such shore line where the same has been established statute 30.02(1)(b): It shall be unlawful to deposit any material or to place any structures upon the bed of any navigable water where no shore line has been established or beyond such shore line where the same has been established, provided however, that the public service commission may grant to any riparian owner the right to build a structure, or to maintain a structure already built and now existing, for his own use, if the same does not materially obstruct navigation. Upon complaint by any person, the public service commission shall hold a hearing thereon to determine whether or not such present structure, or one proposed to be built, does materially obstruct navigation Numerous changes for years who controls the Legislature? 17 Structures in the H20 Today 2018 statute 30.12(1): Unless an individual or a general permit has been issued under this section or authorization has been granted by the legislature, no person may do any of the following: (a) Deposit any material or place any structure upon the bed of any navigable water where no bulkhead line has been established. (b) Deposit any material or place any structure upon the bed of any navigable water beyond a lawfully established bulkhead line. Exemptions under include: Fish spawning structures Bird nesting platform Certain piers Seasonal boat shelters (permanent boat houses under Piers of certain length and width Certain riprap Biological shore erosion control structure Structure or deposit that the drainage board for the Duck Creek Drainage District places (Outagamie county with some requirements) Some floating toilet facilities owned by the National Park Service for the St. Croix River 2018 statute 30.12(3m): conditions to consider when the DNR is asked to issue an individual permit all requirements must be met: The structure or deposit will not materially obstruct navigation. The structure or deposit will not be detrimental to the public interest. The structure or deposit will not materially reduce the flood flow capacity of a stream 18 6

7 Bulkhead Lines? 19 Bulkhead Lines 2018 statute 30.11: Any municipality may, subject to the approval of DNR, by ordinance establish a bulkhead line and from time to time reestablish the same along Bulkhead lines shall be established in the public interest and shall conform as nearly as practicable to the existing shores, Establishment of a bulkhead line shall not abridge the riparian rights of riparian owners. Riparian owners may place solid structures or fill up to such line The bulkhead line is neither the ordinary high water mark or ordinary low water mark. When a bulkhead line has been established, a riparian owner must nonetheless obtain a permit or contract pursuant to s prior to removing material from the bed of a navigable water landward of the bulkhead line, but within the original ordinary high water mark. 63 Atty. Gen Whoownsthefilledlandbetweenthebulkheadand the ordinary high water mark? Can the riparian owner build structures on this land? With DNR approval? Couture what does fashionable clothing have to do with it? Milwaukee from swamp to land? Who owns the filled in land? Is H20 Always H20? City of of Milwaukee and Railroad established a division line EAST of line is public trust. Recorded doc no WI Legislature enacted Milwaukee shoreline established giving thumbs up to Doc No constitutes the boundary line between the lake bed of Lake Michigan and land that is not part of the lake bed of Lake Michigan Court order Declaratory iudgment shall be entered, stating that by enacting wis. stat. g ' the Wisconsin legislature properly fixed and established the dividing line between lands covered by the public trust doctrine and lands which are not, and that the Property, as defined in the Complaint, is not covered by the public trust doctrine. 2015CV

8 Similar result different reasoning Court of Appeals 1981 W. H. Pugh Coal Co. v. State US constructs as lighthouse in the water. Magically water becomes land. City of Racine establishes the shoreline EAST of the lighthouse. WHO owns the fill land? References and Decision riparian owners obtain rights to the soil formed by accretions, and their rights to the shore are exclusive as to all the world, excepting only where those rights conflict with the rights of the public for navigation purposes. riparian owner can obtain right and title to land formed by artificial accretion (EXCEPT where an owner was not allowed to take title to land accretion because the owner himself had induced the formation by dredging) Because the State did not prove that Pugh himself created the landfill, Pugh is entitled to the land as an accretionuponhisproperty Land formed by artificial accretions does not belong to the State unless the State claims the land by an exercise of its police power ($$) 22 Live Case in Door County historical maps affected 23 Door County Circuit Court decision Friends of the Sturgeon Bay Public Waterfront et al vs. City of Sturgeon Bay et al - Door County Case Number 2016CV Decision March 8, 2017 Parcel 100 City is enjoined from conveying Parcel 100 lying waterward of the OHWM as set forth in the DNR concurrence Parcel 92 The court was unable to determine the OHWM so the City was likewise enjoined from conveying Parcel 92 (subject to modification if the DNR identifies the OHWM) 24 8

9 Door County Court of Appeals 2017AP800 Friends of the Sturgeon Bay Public Waterfront v. City of Sturgeon Bay Appeal 2017AP800 City Argues: Statute of limitations and Laches buildings for 100 years; fill for more than 50 Court failed to give proper deference to DNR determination of OHWM Friends Argue: Not time barred b/c Friends cause of action started when the City decided to sell the property for commercial development in 2015 DNR s determination not clear on the OHWM location for Parcel 92 Bulkhead line does not transfer title of filled lands behind the bulkhead to the riparian owner; rather filled lands behind the bulkhead is restricted to public and navigational purposes consistent with the public trust doctrine. Friends failed to meet burden of proof as to the location of the OHWM and a violation of the public trust doctrine Is OHWM set forever at Wisconsin s Statehood in 1848? Parcel 92 filling after 1848 did not remove the property from the public trust STATUS As of March 15, appeal held in abeyance pending resolution administrative of proceedings and administrative agency review proceedings. 25 Is H2O always H20? Land always Land? Movrich v. Lobermeier Wisconsin Supreme Court 2018 Sister owns the lake house. Brother owns the lake. Brother hates sister and kicks her pier off the lake. Court held that this was Flowage. Brother wins and sister s pier is gone (trespass). Sister can drag boat to shore. 26 Dams in Wisconsin falling apart Per the DNR approximately 900 dams built on rivers have been removed, with over 150 since When the dam is removed, and water recedes to its natural state, who owns the newly exposed lands? Depends. Did the Dam builder own the flooded lands? Or just a flowage easement? Anyone still alive and kicking? How to extend the property lines? 27 9

10 Dam remove Assessor s Plat 28 Dam Blown Away Estate of William Newman created Lake Delton by constructing a dam on Dell Creek 1933ish Newman transfers ownership of the lake to Ralph Hines, along with 25 foot strip of land abutting the lake in various locations June 9, 2008 dambusts July 21, 2008 Ralph M. Hines Family Trust quit claims lands covered by the waters of Lake Delton to the Village of Lake Delton Section 31.14, Wis. Stats. - No person may assume ownership of a dam after October 21, 1961, or the ownership of that specific piece of land on which a dam is physically located after April 27, 1982, without first complying with sub. (2) or (3). The transfer of the ownership of a dam or the ownership of a specific piece of land on which a dam is physically located made without complying with sub. (2) or (3) is void unless a permit to abandon the dam was granted under s or unless the transfer occurred by operation of law. 29 Changing courses of Streams Baldwin v. Anderson WI Supreme Court Sale 413 acres of land, more or less, according to Government Survey. Sugar River moved northward almost a ¼ mile. Was the sale to include the 31 acres south of the Sugar River as now located? ACCRETION: increase in land caused by the gradual deposit by water of material on the shores, which deposit replaces the water at this location with dry land. AVULSION: a sudden change of course in a stream so that the stream shifts from its old channel to a new channel in a very short time; as for example flood stage. Difference? Avulsion - boundaries do not change. The boundary, if it was the thread of the original channel, continues to be there in the original channel at the thread. Accretion - the boundary of the land shifts as the material is built up. That is to say, the man who owns the shore against which the new material is deposited owns the material that is deposited, so that he can have continued access to the water

11 Public Walking Rights State law matters WISCONSIN - Doemel v. Jantz WI Supreme Court Riparians have the exclusive privileges of the shore for purposes of access to his land and water. Court concluded that the public rights extend only to the water s edge and that walking on the shoreland between the ordinary high water mark and low water mark constitutes a trespass. In professional publications noted as if your feet are wet you are not trespassing Use of exposed shore areas along streams. Members of the public may use any exposed shore area of a stream without the permission of the riparian only if it is necessary to exit the body of water to bypass an obstruction. MICHIGAN Glass v. Goeckel MI Supreme Court 2005 defendants cannot prevent plaintiff from enjoying the rights preserved by the public trust doctrine. Because walking along the lakeshore is inherent in the exercise of traditionally protected public rights of fishing, hunting, and navigation, our public trust doctrine permits pedestrian use of our Great Lakes, up to and including the land below the ordinary high water mark. Therefore, plaintiff, like any member of the public, enjoystherighttowalkalongtheshoreoflakehurononland lakeward of the ordinary highwater mark. 31 The Future? 5 factor test 1. The size of the parcel to be sold relative to the size of the waterway as a whole; 2. The conveyance s effect on commerce and navigation; 3. The conveyance s effect on the environment and water s ecosystem; 4. The conveyance s effect on scenic beauty; and 5. The conveyance s effect on public recreation. 32 Wisconsin s Islands: Who Owns Them? 1. Islands that Existed at Statehood: The United States 2. Islands Formed After Statehood: The Private Upland Owner 3. Unsurveyed Islands North of Township 31: The State of Wisconsin 4. Islands in Nonmeandered Lakes: The Private Owner 5. Islands Formed by Artificial Means: The State of Wisconsin 33 11

12 An Island in a River Chippewa River, Rusk County 34 County GIS Map Showing an Island Claimed by the Seller Lake Owen, Bayfield County 35 County GIS Map Showing the Same Island 36 12

13 Original Government Land Survey: No Island is Shown! We spoke with the seller s real estate agent, who lives & has sold property n this area for many years (he s semi-retired now). He said that it is extremely shallow between the lot & this island, only a few inches of water. (His exact words were you d be lucky to get your shoes wet, on a good day. lol) Basically, the agent said that the water level of Lake Owen rose once they put in the dam. Conclusion: The island was actually a part of a peninsula atthetimeofstatehood,and therefore, title to the island passed with the US land patent that was issued for the government lot that described the peninsula Grape Island in Dane County Left: In 1970 s. Right: In the 1850 s 39 13

14 40 YES we are fortunate people 41 Title Insurance Cos insure what That s a big fat Manitowoc January 7, 2019? 42 14

15 Thanks for attending. Knight Barry Title 43 15