Eau Claire Leader-Telegram. June 25, 2024.
Editorial: Airboat trespassing ruling raises interesting point
Generally speaking, waterways are open to anyone with the wherewithal to navigate them. Rivers and streams may flow through private property, but they don’t belong to the property owners.
That has been the standard for the Wisconsin Department of Natural Resources for quite some time, as well as the standard for legal questions dating back to English common law. But with this rainy season continuing there’s an element you may want to take into account.
Last year a man from Ixonia filed a suit about airboat users, saying they were trespassing on his land while the Rock River flooded. At a glance the suit didn’t seem to have much to it. The public trust doctrine governing navigable waters generally grants access to anywhere the boat can go, provided the person doesn’t hop out onto land.
Judge Bennett Brantmeier found differently. He said the doctrine stops where the water usually does. In short, a user of flooded waterways cannot legally cross the boundary for the river, lake or stream’s customary banks.
There are most likely several appeals to go. Brantmeier is a circuit court judge for Jefferson County. That makes the Wisconsin Court of Appeals a likely first stop should the DNR choose to challenge the ruling. Then there’s the state supreme court if either party is disappointed in the appeal.
We think there may well be something to the ruling. Let’s take the former standard to its ridiculous extreme. If water flooded a property, including a home on the property, kayakers would theoretically be allowed to paddle through the homeowner’s living room. After all, they’re not getting off the water.
That doesn’t seem reasonable. Yes, it’s quite likely the flooding pushed a door open or broke a window, though which the kayaker could enter without creating a breach themselves. But this hardly seems consonant with the competing questions of private property and the customary use of waterways.
When you think about this, the fundamental conflict here isn’t unusual. There are always competing interests in exercise of rights — even basic ones. People have the right to say what they want, provided it isn’t slander. But the classic example of the curb on that is yelling fire in a theater. Other people there have the right to be spared the potential panic of a stampede.
People have the right to freely assemble. But look at almost any agreement that sets a defendant free ahead of trial. Those frequently bar contact with others such as witnesses or co-defendants. Society’s right to an unimpeded trial is greater in that case than the defendant’s right of association.
Or, more prosaically, there’s the saying that your right to swing your fist ends at the other person’s nose.
The question is particularly relevant this spring, with the ongoing rainy pattern putting rivers and streams well above the levels they usually are at this time of year. The Chippewa River is well into its action stage for flood preparations in Eau Claire, though it’s forecast to recede over the coming few days.
There’s another point worth making, though. There’s a question of respect involved as well, and that’s not something mandated by law. The legislature can’t require you to show respect provided your actions are within the boundaries of the law, but it’s generally not that hard to do.
Had the boaters in this case shown respect instead of taking advantage of the situation, the courts would never have become involved in the first place. That would mean some ongoing ambiguity, absent this ruling, but it also would have meant far fewer headaches for all involved.
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