Featured Case – Lobermeier v. Movrich
David J. & Diane Lobermeier v. Jerome & Gail Movrich
Do waterfront property owners have a right to place a pier on a flowage or other water body if the lakebed is privately owned? This debate led to the recent 2021 Wis. Act 47.
The story begins with a brother and sister, David Lobermeier and Gail Movrich. The Lobermeiers, David and his wife, own land beneath the waters of Sailor Creek Flowage. Originally, the flowage was a creek, but the city obtained the rights to build a dam and flood the area in the 1940s, which resulted in the flowage. The property next to this flowage was then divided, and waterfront lots were sold off to be a part of the Sailor Creek Flowage Subdivision.
The Movriches, Gail and her husband, purchased one of those waterfront lots in the subdivision. For years, the Movriches and the other waterfront property owners placed seasonal piers, which sat on the Lobermeier-owned bed of the flowage. However, at some point, there was a dispute between the Movriches and the Lobermeiers. The Lobermeiers demanded the Movriches and other property owners remove their piers from the water and stop using the water for recreational purposes.
In retaliation, the Movriches sued. They argued that they, as waterfront property owners, had an inherent right to use and access the water next to their property, as demonstrated by Wisconsin court cases for over 140 years.
The Lobermeiers argued the Movriches did not have the right to place a pier in the flowage because they owned the bed of the flowage and placing their pier on privately owned land would be trespassing.
The circuit court and Court of Appeals agreed with the Movriches, affirming that waterfront property owners have the right to place a pier in navigable waterways adjacent to their property unless the deed to the property explicitly prohibits them from doing so.
In a 4-3 decision, the Wisconsin Supreme Court overturned the lower court decisions and ruled in favor of the Lobermeiers. The court held that the waterfront property owners adjacent to a flowage with a privately owned bed do not have the right to place a pier on the bed unless their deed explicitly allows them to do so. In other words, the owners of a flowage bed are like any other property owner and can prohibit others from trespassing on their property by walking or placing a structure on it. Since the Movriches’ deed did not explicitly allow them to place a pier on the Lobermeiers’ property, the court concluded that they did not have pier rights. Therefore, the court ordered the Movriches to remove their pier.
However, the court’s ruling did not impact only the Movriches, it applied to ALL waterfront property owners on flowages throughout Wisconsin. Thousands of waterfront property owners and businesses were told they no longer had pier rights despite paying property taxes on their property for years as if they did have such rights.
This issue then led to 2021 Wis. Act 47. This act restores the pier rights of waterfront property owners adjacent to flowages and protects the pier rights of ALL waterfront property owners in Wisconsin regardless of the water body type. Therefore, in the end, the Movriches became the true winners.
Link to Wisconsin Supreme Court Case
Link to Amicus Brief
Featured Case – Murr v. Wisconsin
Murr v. Wisconsin
Does a regulation requiring the merger of two contiguous, substandard lots owned by the same person constitute a regulatory taking of private property by the government? That issue — based on a fight in western Wisconsin in which one family saw their property rights curbed by the government — found its way to the U.S. Supreme Court in 2017 and ultimately led to a change in state law.
In the 1960s, the Murr family purchased two separate but adjacent lots on the scenic St. Croix River in western Wisconsin. On one parcel purchased in 1960, the family built a cabin they have enjoyed for decades. The other parcel, purchased in 1963, remained undeveloped for decades.
In 1975, 12 years after the Murr family purchased the second lot, St. Croix County enacted an ordinance that essentially meant the Murr family could no longer sell the undeveloped lot by itself. According to the ordinance, development or sale of adjacent, substandard lots under common ownership is prohibited unless each has at least one acre; otherwise, they are merged into a single, buildable lot. Neither of the two lots owned by the Murr family were at least one acre. In an effort to improve their existing cabin on the one parcel, the Murr family was planning to sell the undeveloped lot and use the revenue from the sale to renovate their cabin. Because the Murr family purchased both lots more than a decade before the 1975 ordinance, they expected to be grandfathered in, but when they requested a variance, the application was denied.
In response, they filed suit claiming the ordinance constituted a “regulatory taking” of their land in violation of the U.S. Constitution’s “takings clause.”
- A “regulatory taking” occurs when governmental regulations limit the use of private property, effectively depriving the landowner of all economically reasonable use or value of their property. The Murr family reportedly was expecting to sell the undeveloped lot for approximately $400,000. In this case, the “regulatory taking” by St. Croix County thwarted that plan.
- The “takings clause” is a provision in the Fifth Amendment of the U.S. Constitution. That clause states that “private property [shall not] be taken for public use, without just compensation.”
The circuit court rejected the Murr family’s takings claim, and on appeal, the Wisconsin Court of Appeals affirmed the circuit court’s decision. The Wisconsin Supreme Court declined to hear the case, but the U.S. Supreme Court agreed to take on this monumental issue on property rights.
The Murr family’s argument was the government was preventing them from selling their property, in this case, the second undeveloped parcel. “If you can’t sell it or build on it, it’s a taking of the property,” said Mike Murr, one of the siblings who owned the family property after it was conveyed to them by their parents.
The State of Wisconsin and St. Croix County argued that the two parcels — less than one acre each — became one property when the siblings took over the property from their parents.
The Supreme Court looked to the contiguity and common ownership of the substandard parcels and treated the separate parcels as one unit of property, adopted a multifaceted test for regulatory takings, and ruled against the property owner; in this case, the Murr family.
Ultimately, the Murr family’s brave stand for property rights was rewarded — but not by the courts. The Supreme Court ruled against them, but their work with the Wisconsin REALTORS® Association to elevate this issue led to state lawmakers enacting legislation at the Capitol in Madison to ensure this issue didn’t affect other property owners.
The Homeowners Bill of Rights, 2017 Wis. Act 67, protects the ability of property owners to develop and sell existing substandard lots adjacent to their property that were legal when they were created but do not meet current lot size requirements.
How does the WRA participate?
The WRA has been involved in the court system, educating judges and justices about Wisconsin legal matters that impact the practice of real estate, the ownership and use of real estate, private property rights, and other matters important to REALTORS® and the real estate industry.
Typically, the WRA participates in a case by filing and arguing as an amicus curiae (friend of the court). However, the WRA also has been a member of a coalition of similarly interested parties, as well as a party to the lawsuit. The WRA has even been an expert witness as well as providing research. Need help finding legal counsel? The WRA will help identify specialized attorneys in the field that have a better understanding of the issue. Further, the WRA has even assisted in paying for legal fees. Each case is different, and so each arrangement and the WRA’s involvement differs.
However, the WRA’s Legal Action Program funds may not be used to pay any judgment for damages or fines, or any other award of damages whether it is by judgment or
Criteria considered for WRA participation
- Does the case involve legal principles that significantly affect REALTORS®️?
- Might the outcome of the case establish an important legal precedent for the real estate industry?
- Will the participation of the WRA via the Legal Action Program likely increase the probability of a favorable outcome or lessen the probability of an unfavorable result for the real estate industry?
- Are the applicant’s goals consistent with WRA policy?
- Is there actual litigation? Has a lawsuit been filed, or will an impending lawsuit be filed in court or is the case before an administrative agency?
- Is the applicant asking for assistance that the Legal Action Program reasonably can provide: legal or other research, identification of expert witnesses, assistance finding legal counsel, brief and/or oral argument as an amicus curiae (friend of the court), participation in a coalition of similarly situated parties, or participation as a party in litigation?