Where Does the Lake Begin?
December 2, 2021
Stephen Sullivan v. Lucky 239, LLC, No. 2020AP1891
On November 23, 2021, the Wisconsin Court of Appeals affirmed the decision of the circuit court granting a motion for reconsideration of a prior order determining the parties’ respective rights to a disputed waterfront property.
Many lakefront owners and developers are likely familiar with a determination of the ordinary high-water mark (“OHWM”) by a surveyor. They know that this is the spot where riparian setbacks begin and the subject property changes from a private to public rights. What seems like a very clear location can very quickly become as murky as the waters that it is located within.
The OHWM is 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.” Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914).
In this case, the circuit court made an initial determination of the OHWM based upon expert opinion of a surveyor with the additional support of a DNR employee. However, on reconsideration, it was clear that the initial determination failed to sufficiently address on-the-ground physical attributes, such as distinct marks on shoreline and certain vegetation. The circuit court reversed its initial decision and found in favor of the party seeking reconsideration.
The case is a nice reminder that riparian rights law is a complex and fact intensive legal field, requiring expert guidance from surveyors, the DNR, and attorneys familiar with the factors to be applied.
The attorneys at Clair Law have litigated a number of cases involving riparian rights, including conflicting determinations of the ordinary high water mark.
To view the Court of Appeals decision, please follow the link:
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