There's not a lot new to report in the U.S. Court of Appeals for the Seventh Circuit's opinion in Kreuziger v Milwaukee County, No. 22-2489 (Feb. 13, 2023). But there's a bit of old that make it worth posting.
The issue the court considered was whether riparian property owners have any protectable interest in the level of the water which their property abuts. After the County demolished a long-standing dam on the Milwaukee River resulting in a four-foot lowering of the water next to Kreuziger's upriver property, he sued for a taking. Slip op. at 3 ("The lower surface level of the river exposed a ten-foot strip of marshy land between Kreuziger’s seawall and the water’s edge that had previously been submerged.").
You probably already understand the general rule in these situations: riparian owners have no compensable property interest in any particular water level, as long as the waterway was navigable in its natural state. See United States v. Willow River Power Co., 324 U.S. 499 (1945). But when a waterway is non-navigable in its natural state, the rule may go the other way, with riparian owners having a protectable interest. See United States v. Cress, 243 U.S. 316 (1917).
Here, the Seventh Circuit noted that the Milwaukee River was navigable before Wisconsin dammed it in 1937. Slip op. at 2 ("In 1937 Milwaukee County obtained a permit from the Wisconsin Public Service Commission to build a dam on the Milwaukee River, a navigable waterway, at a location near the northern border of Estabrook Park."). The court rejected the owner's argument that "the defendants owe compensation for taking his riparian right to a higher water level on the river because their removal of the dam did nothing to improve navigation." Slip op. at 5.
Rejecting reliance on a Wisconsin case that seemed to hold that riparian rights were affected when a dam removal caused lowering of water levels on a lake, the Seventh Circuit held that this case only involved private-to-private riparian rights, and not private-to-public. Slip op. at 6. ("That case dealt with a clash of rights among private riparian owners. This case involves the government’s interest in maintaining navigable waterways in the exercise of its responsibilities under the public-trust doctrine."). When the public right of navigation is involved, a different rule applies. Interestingly, the court relied on Wisconsin's public trust doctrine to conclude that "[r]iparian property owners cannot interfere with the public's navigation rights on the state's navigable lakes." Id.
That may be correct as a matter of Wisconsin riparian law, but to us it doesn't really matter because Willow River should control: because the Milwaukee River was navigable, the federal navigation servitude (and not the state's public trust) means that riparian owners have no interest in any particular water level. Yet the opinion casts the issue as one of public trust and not the navigational servitude. See, e.g., slip op. at 8 ("Put more succinctly, the riparian rights of waterfront property owners are subordinate to the government’s authority to regulate navigable waterways under the public-trust doctrine."). That doesn't seem quite right to us. The main reason that the riparian owners here have no property right in the water level isn't the public trust, but rather the federal navigational servitude.
Either way, same result: no private property interest in any particular level of water on the Milwaukee River. Slip op. at 9 ("So Kreuziger’s argument that removing the dam did not actually improve navigation is beside the point.").
Yes, having an "unsightly strip of land abutting his property" instead of the gently-lapping sounds of the river may be "unjust, inequitable and unconscionable," slip op. at 10-11, but that's just too bad: "neither the Wisconsin Constitution nor the United States Constitution promises to 'socialize all losses .. which result from a taking of property." Slip op. at 10 (quoting Willow River, 324 U.S. at 502).
Kreuziger v Milwaukee County, No. 22-2489 (7th Cir. Feb. 13, 2023)
