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The law provides owners of property abutting navigable waters such as lakes and rivers rights of access to and use of those waters, commonly called “riparian rights.” Those rights are exclusive up to a point, but ultimately subject to the rights of the public and the State as trustee. Among those rights are the right to install piers, boat slips, and certain other structures adjacent to the property and exclusive use of the water within the property’s “riparian zone,” i.e. the area in which the riparian rights are exclusive.
Riparian rights arise from the property itself and its location abutting the lake or river. So, the owner of the property possesses riparian rights. Many owners of riparian property and others believe that the riparian rights to use piers, boat slips and other structures may be transferred to persons who have no ownership interest in the land adjacent to the water. However, that can only be done in limited circumstances, and the grant of riparian rights may be effective only for a limited time.
Wis. Stat. Section 30.133(1) states in pertinent part that beginning on April 9, 1994 “no owner of riparian land that abuts a navigable water may grant by an 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, including a boat docking facility, as defined in s. 30.1335(1)(a), in the navigable water.”
According to this statute, therefore, the only right a person other than the owner of the riparian land may be granted by an easement or “similar conveyance” is the right of access over the owner’s land to the lake or river. The language of the statute makes it clear that the right to place any structure or material in the water can’t be granted to non-owners through use of an easement or similar grant.
Case law interpreting the statute provides that it must be interpreted to prohibit not only the grant of a right to place a structure in the water, but the grant of a right to use any structure in the water, such as a pier. So, non-owners cannot be granted the right to use a pier or boat slip to dock boats, for example, or access boats from the pier, or presumably to fish from the pier.
The fact that the statute prohibits granting riparian rights by easement or a similar conveyance doesn’t mean that an owner of riparian rights can’t allow others to use a pier or other structure. It doesn’t preclude an owner from letting friends and neighbors and others use a pier. But in that case non-owners have no legal right to exercise riparian rights; the owner merely consents to their use. The owner may withdraw that consent and require them to stop using exercising riparian rights at any time. If they had an enforceable easement or other grant of riparian rights, however, they could not be prohibited from exercising the rights until the easement or other grant is terminated or expires.
Unless only casual use is desired and there is no intent to place a structure or material in the water, and the owner is available and agreeable, any non-owner interested in having riparian rights without the need to obtain consent of the owner in all cases obviously would prefer to have a right to exercise riparian rights without needing to obtain consent, which could be transferred to others for compensation. But the statute provides that right can’t be granted by easement or by “similar conveyance.” The obvious question which arises is–What is intended by an easement or similar conveyance? No explanation is provided in the statute.
An easement is, by definition, a grant of a right to use land. It may be temporary or perpetual, exclusive or non-exclusive. There is no reason to believe a special definition of “easement” is meant to apply. The easements addressed in the cases aren’t unusual. The cases haven’t yet addressed specifically what constitutes a “similar conveyance.” However, a section of the Wisconsin Administrative Code defines that phrase for purposes of the statute. That Administrative Code Section is NR 326.03(11) which states that “similar conveyance” means “any transfer in excess of 2 years” but does not include “a lease of a marina facility to an operator of the facility.”
That suggests that a grant of riparian rights in addition to access to and from the water which is not an easement may be allowed under the statute, provided it is not effective for more than 2 years. A lease or license of riparian rights for less than 2 years may therefore be allowed under the statute. What isn’t clear, however, and presumably won’t be until the courts have weighed in on the issue, is whether such a lease or license or other grant of riparian rights may be renewed or extended, or transferred to others. One would think an easement for a term of 2 years may also be acceptable, if other transfer of riparian rights may be effective for that period. However, this isn’t certain either, because the language of the statute distinguishes easements and “similar conveyances.”
Any person who wants to obtain a grant riparian rights but is not an owner of land abutting water, and any owner of riparian land who wants to grant riparian rights without conveying the land, should be aware of this statute and the possibility that it may render any grant of rights invalid if violated. Consultation with a knowledgeable lawyer would be essential in determining what can be done to grant rights in a way which will be allowed by the law.