A newsletter on Wisconsin water law for waterfront property owners, local officials and agency staff.
SEPTEMBER 2000

Water and Law

From Justinian to Just: The Public Trust Doctrine in Wisconsin

The public trust doctrine has a strong history in the State of Wisconsin. From its origins in Roman civil law to the present year 2000, the doctrine has evolved and taken shape within the framework of changing societal needs and patterns of human activity. Over the years, the Wisconsin courts, through analysis of the doctrine's history and fundamental purpose, have articulated its application to Wisconsin's navigable waters and adjacent shorelands. But, what is the public trust doctrine? The fact that the public trust doctrine affects much of what occurs in the shore, near shore and open water areas may escape many of us. The purpose of this article is to revisit some of the basic questions and examine the significance of the doctrine in the context of some of today's most pressing water resource issues.

The Origins of the Public Trust Doctrine

The roots of the public trust doctrine can be traced back to Roman civil law and more particularly, to the ancient legal text, Institutes of Justinian (sixth century A.D.), which declared that certain property such as air, water, the sea and the shores of the sea were considered "common to all." In other words, any individual was at liberty to fish, use the shore to the high water mark, moor boats and navigate the waters. In time, these concepts were incorporated into English common law where it was held that the Crown possessed tidal waters and the land underlying those waters in trust for the benefit of the public.

Following the American Revolution, this ownership interest transferred to the governments of each individual state. In the words of the U.S. Supreme Court, "the people of each state became themselves sovereign; and in that character held the absolute right to all their navigable waters, and the soils under them, for their own common use" (Martin v. Waddell, 1842). That navigable waters flowing into the Mississippi and St. Lawrence and "the carrying places between the same" were to remain "common highways and forever free" was incorporated into the Northwest Ordinance of 1787 and the Wisconsin Constitution. The significance of the public trust to the people of the State of Wisconsin was articulated in the early Wisconsin Supreme Court case of Illinois v. Bilot in 1901:
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 continue there forever, so far as necessary to the enjoyment thereof by the people.

The public trust doctrine, then, can trace its origins back perhaps thousands of years. Its present incarnation in the State of Wisconsin is the product of English common law, constitutional and other mandates, and extensive Wisconsin court interpretation. Its basic tenets maintain that the state has a responsibility to protect the integrity of navigable waters as well as to preserve and promote the public's interest in those same waters.

The Land and Water that is Subject to the Public Trust

The public trust doctrine only applies to certain waters and lands. Determining the applicability of the public trust doctrine is an important first step in establishing state jurisdiction.

Navigable Waters. The definition of navigability has changed over time and reflects how public uses of water have evolved. Early definitions characterized a body of water as navigable if it was capable of floating lumber or an object of commerce downstream. Today, a body of water is considered navigable if it can float "any boat, skiff or canoe of the shallowest draft" at some regularly recurring time during the year, even if during spring floods (DeGayner & Co., Inc. v. DNR, 1975). In general, the trust doctrine has also been held to apply to artificial waters that are connected to or within 500 feet of natural, navigable bodies of water (Klingeisen v. DNR, 1983).

Beds of navigable waters. With the exception of property owners on a stream bank who hold title to the center of the stream bed, the state holds beds underlying navigable waters in trust for the public. The point which marks the end of the lake bed and the beginning of private property is known as the ordinary high water mark. In Diana Shooting Club v. Husting (1914), this point was described as,
The point on the bank or shore up to which the presence and action of water is so constant as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic.

An area does not need to be navigable in order to be considered a part of the lake bed. In State v. Trudeau (1987), the foundation of a condominium was built in an area that was covered with aquatic vegetation and flooded with water on a periodic basis. The court held that the site was below the ordinary high water mark and in the Lake Supenor lake basin. The building was, in effect, an unauthorized private structure placed on public property.

Shorelands. The Legislature extended public trust protection to shoreland areas with the passage of the Water Resources Act of 1965. That the condition of the waterway is affected by the condition of the adjoining land area was recognized in the landmark case of Just v. Marinette County (1972). Adoption of minimum state shoreland zoning standards culminated in a more recent effort to further minimize the effects of development on state waters through county lake classification.

The Balancing Act: Public and Private Interests in Water

Wisconsin law recognizes that riparians have certain rights in the water. These rights include the right to access, the right to build a pier and to the reasonable use of the water. These rights must be balanced with those of the public. Over the years, the interests protected under the public trust doctrine have expanded to include not only the public's interest in navigation, but also fishing, recreation, hunting and the enjoyment of natural scenic beauty. Should these interests conflict, the riparian's interests become secondary to those of the public. As the court in State v. Bleck (1983) suggested, "such rights ... are still subject to the public's paramount right and interest in navigable waters."

Riparian rights have been codified in Chapter 30 of the state statutes. This regulatory framework is designed to balance public and private interests in waterways. For example, the statutes set forth that piers that meet certain criteria are unlikely to interfere with public rights and may be constructed without a permit. Projects that have the potential to adversely impact public rights in navigable waters and the underlying lands, however, such as certain piers, structures and dredging proposals, are subject to state review and a permitting process. Permits may be issued subject to certain limitations. In Sterlingworth v. DNR (1996), a pier proposal requesting 34 slips was scaled back by the court to 25 slips in order to minimize the structure's impacts on water quality, fish spawning and nursery habitat.

In Village of Menomonee Falls v. DNR (1987), a channelization project consisting of substantial grading and the installation of a concrete liner was proposed for Lilly Creek, a tributary of the Menomonee River. After establishing the state's jurisdiction through a determination of the creek's navigability, the court affirmed the decision of the DNR to deny the permit on the grounds that the project would have had an adverse impact on natural beauty and stream habitat. Potential harm to public interests in Lilly Creek thus outweighed any public benefits that may have been gained by allowing the channelization project to proceed.

The Reach of the Public Trust Doctrine and New Challenges

Evolving uses of water and shoreland areas continues to challenge the state's ability to balance public and private interests in waterways. A "dockominium" is a relatively new concept in the area of water law. The dockominium refers to an arrangement whereby the purchase of a limited interest in land endows the owner with riparian status, including exclusive rights to the use of the pier and the adjacent water. The issue has generated a number of questions, the principal ones being whether this constitutes the sale of a public resource and a use inherently at odds with the public trust doctrine.

The public trust doctrine establishes that navigable waters are fundamentally a public resource, common to all and the property of no one. Riparians do have rights in the resource, but these limited forays into public waters would more accurately be described as privileges rather than absolute freedoms. Tbrough time, though public uses of water may change, the characterization of navigable waters as a resource held in common remains constant. In the words of the court in Diana Shooting Club v. Husting (1914):
The wisdom of the policy which in the organic laws of our state, steadfastly and carefully preserved to the people the full and free use of public waters cannot be questioned. Nor should it be limited or curtailed by narrow constructions. It should be interpreted in the broad and beneficent spirit that gave rise to it in order that the people may fully enjoy the intended benefits.