By Joe Forward, Legal Writer, State Bar of Wisconsin

July 14, 2010 – A non-riparian landowner’s lake access rights could include the right to construct and maintain a pier, the Wisconsin Supreme Court recently held.

Under Wis. Stat. section 30.133(1)(a), a riparian landowner cannot convey riparian rights, except for the right to cross land for the purpose of accessing a navigable waterway. By statute, the right to access water does not include a right to construct a pier on the water.

In Konneker v. Romano, 2010 WI 65 (July 7, 2010), the supreme court clarified that section 30.133(1)(a) does not apply to an easement created before April 9, 1994, the effective date of the statute. That is, creation prior to this date could still include a right to construct a pier.

The facts

In 2004, Robert and Ann Konneker acquired land (lot one) across the street from Beyer’s Cove, on Green Lake. The deed included a 20-foot easement across lakefront property (lot three) to access Beyer’s Cove. Robert and Francis Romano and Norman and Lawrence Nelson (the lakefront owners) owned lot three, the lakefront property on which the easement sat.

The easement, originally created in 1983, allowed seven other parcels to access the lake. The deed creating the easement expressed nothing about the right to construct a pier.

In 1990, the lakefront owners constructed a pier and leased the pier to Grant Gardner, a predecessor in interest to the Konnekers’ property on lot one. The location of the pier is in dispute, but the Konnekers argue that the pier is “on or close to” the easement.

Gardner used the pier to dock his boat. The lease prohibited Gardner from transferring his pier rights. A subsequent owner of lot one leased the pier under the same condition.

In 2004, the Konnekers acquired lot one, and the easement across lot three, with access to the pier. However, the Konnekers later installed their own pier. The lakefront owners removed it, claiming the Konnekers’ easement rights did not include the right to construct a pier.

In 2007, the Konnekers sought a declaratory judgment that the easement conveyed riparian rights, including the right to erect and maintain a pier on the easement.

The circuit court granted summary judgment to the Konnekers, declaring that the easement allowed them to construct a pier. The appeals court reversed, ordering summary judgment for the lakefront owners. The supreme court reversed the appeals court, concluding that summary judgment was improper because genuine issues of material fact still exist.

Statute not applicable

The supreme court noted that up until April 9, 1994 – effective date of section 30.133(1)(a), Wisconsin law allowed riparian landowners to transfer riparian rights by easement, citing Wendt v. Blazek, 2001 WI App 91, 242 Wis. 2d 722, 626 N.W.2d 78.

It also noted that prior to section 30.133(1)(a), Wisconsin law allowed riparian rights to be transferred by easement to non-riparian landowners, citing Stoesser v. Shore Drive Partnership, 172 Wis. 2d 660, 494 N.W.2d 204 (1993).

In this case, the court explained, section 30.133(1)(a) is inapplicable because “the easement was originally conveyed in 1983,” well before the statute took effect.

Intent of the parties

The court analyzed the 2007 deed, which conveyed the easement to the Konnekers. The court found the deed to be ambiguous, and noted that extrinsic evidence must be used to determine the intent of the original parties to resolve the ambiguity.

That is, “it is not clear from the deed whether the parties intended the easement holder to have riparian rights, including the right to construct and maintain a pier,” the court wrote, and “the court must resort to extrinsic evidence to ascertain the parties’ intent.”

Both parties offered affidavits to support intent of the original parties.

The lakefront owners argued that in 1983, the year the easement was created, there was no pier or boat lift, and therefore “it was not the parties’ intent to permit the easement holder to construct or maintain a pier thereon.”

The Konnekers argued that Beyer’s Cove is not conducive for anything besides accessing the lake by boat. That is, Beyer’s Cove has “large amounts of vegetation, is not conducive to swimming and lacks beach area for sun bathing.” Thus, the parties must have intended for construction of a pier for boat access, they asserted.

Noting the existence of genuine issues of material fact, the court concluded that summary judgment was not proper and remanded the case to the circuit court.

Lawful pier?

The lakefront owners argued that even if the easement is construed in the Konnekers favor, any pier the Konnekers build would be unlawful under section 30.131.

That provision determines that a pier constructed by a non-riparian landowner is unlawful unless six conditions are met, and the Konnekers’ pier could never meet all six conditions, the lakefront owners argue.

However, the court did not address that argument, explaining that the “issue in this case is whether the easement grants riparian rights, including the right to construct and maintain a pier, not whether a pier – if and once constructed by the Konnekers – constitutes a lawful structure” under section 30.131.

Attorneys

Steven Sorenson and Emily Dinegan of the Sorenson Law Office, Ripon, represented the Konnekers. Jeffrey Liotta and Lisa Arent of Whyte Hirschboeck Dudek S.C., Milwaukee, represented the lakefront owners.