Water rights at issue in Wisconsin

Let me start with a story:

There once was a young priest who asked the older priest if he could smoke while he prayed. The older priest looked at him in horror and said “Absolutely not, prayer is a time for reflection and should not be disrespected.”  The next day another young priest asked the older preist if it was okay for him to pray while smoking.  The older priest smiled gently and said, “Absolutely, yes,  one should fit God into all of one’s life.”  Moral: Sometimes it is all in how you ask the question.

 In Wisconsin, there once was court case in which the owner of land intended to sell only the right to access the water along the waterfront but not to sell the property itself. The Supreme Court of Wisconsin ruled in favor of this and said that riparian rights could be sold separate from the land itself according to state law. The Wisconsin legislature took umbrage said “Absolutely not” and enacted a law the following year prohibiting the sale of water rights without the sale of property. No longer could property owners sell the access to water without selling their land.

Recently, owners of property decided to sell the property but not to sell the access to the water. They wished to reserve to themselves the right to build docks. The Wisconsin State Court of Appeals ruled that they could not do this because the intent of the law was to prevent a separation of riparian rights from ownership of the land even though in this instance the rights were being retained and were not being sold.

At issue is that the law enacted by the Wisconsin legislature was too narrow and it permitted a loophole in which the owner of property could keep the rights while transferring title to the land. This, in effect, allowed the property owner to pray while he smoked. The State Court of Appeals then ‘divined’ the intent of the Legislature and ruled against the property owner. The owner could not keep the rights and sell the land.  In this instance the Courts said, I don’t care how you ask the question the answer from the Wisconsin Legislature is still ”Absolutely not”.

I presume that if the Courts had allowed the retention of the riparian rights for property sold that at some future time the ‘owners of the property without the rights’ may wish to sell. If they did, they could not sell the water rights that they do not have. This, in effect, would have been contrary to the law prohibiting the separation of land ownership and water rights.

Sometimes it is all in how you write the law. Since the law has a loophole, this case will go to the Wisconsin Supreme Court where they will decide if “praying while smoking” and “smoking while praying” are the same thing or not.