Wisconsin Navigability Report
The public may use any river if the river in Wisconsin is “navigable in fact,” even if the river can be floated during only part of the year. Public use is for both commercial and recreational purposes. The right to portage over private property has not been definitely discussed or decided by Wisconsin courts.
State Test of Navigability
In Wisconsin, the determination of navigability begins with its statutes. The term “navigable waters” is defined as waters that are navigable in fact for any purpose whatsoever.1) The statutes, in turn, are based on the public trust doctrine, which originated in the Northwest Ordinance of 1787 and the Wisconsin Constitution, Article IX, Section 1, giving the state title to the beds of lakes, ponds, and rivers.2)
Thus, under the state test for navigability, a river or stream is navigable if it can float “any boat, skiff, or canoe, of the shallowest draft used for recreational purposes.”3).)) Moreover, navigability is not determined by the normal condition of the stream. Thus, a stream may be navigable if it has only periods of navigability that occur from year to year (such as spring freshets), or if it is navigable long enough to make it useful as a highway for recreation or commerce.4)
A stream is navigable to the “ordinary high water mark,” which is defined as the “point on a bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark, either by erosion, destruction or terrestrial vegetation or other easily recognized characteristics.”5) The fact that an obstruction impedes navigation will not defeat a finding of navigability. One stream was found navigable even though a thirteen-foot canoe, with a three to four inch draft, required portaging thirteen times around natural obstructions.6) Furthermore, an artificial channel connected to a natural and navigable body of water is public because it cannot exist on its own.7)
Extent of Public Rights in Navigable and Non-Navigable Waters
In Wisconsin, the public trust doctrine is expansively interpreted to “safeguard the public's use of navigable waters for purely recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve scenic beauty.” 8) Thus, all of the above activities, including hunting, swimming and fishing on navigable waters is permitted. In fact, a Wisconsin court specifically found that hunting on navigable waters is lawful when it is confined strictly to such waters while they are in a navigable stage, and between the boundaries of ordinary high-water marks.9)
The rights of riparian owners (those who have title to the ownership of land on the bank of a body of water) are subject to the public's paramount right and interest in navigable waters.10) Thus, the owner's title is qualified by a public easement that gives members of the public the right of navigation, including bathing, hunting, fisting and boating. The riparian owner's rights, which include the right to reasonable use of water for domestic, agricultural and recreational purposes, must be reasonably exercised.11) On non-navigable waters, the riparian owner's ownership right is absolute.
It is unclear whether activities incident to navigation, such as portaging, are allowed. As explained above, in streams that are held in public trust, portaging most likely is permissible since navigable streams include streams that are obstructed and require portaging. Keep in mind that Wisconsin has a strong interest in conserving its natural resources and in preserving scenic beauty,12) so care should be taken. Thus, portaging on private land is most likely not allowed.
Trespass on posted land, or where the actor has notice, is a class B forfeiture.13)
Wisconsin state law requires that “no person shall operate a motorboat or sailboat over 12 feet in length on the waters of this state unless it is covered by a valid certificate of number issued pursuant to this chapter or is exempt from the numbering requirements of this chapter.”14)
Riparian owners do not possess the water in a lake, and thus do not have the absolute right to build and use a boat slip to the exclusion of the public.15)