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The K & B Blog

What is the Public Trust Doctrine?

What is the Public Trust Doctrine?

Through the Public Trust Doctrine, Wisconsin’s state constitution protects the bodies of water within the state. In the summer we take advantage of this doctrine by relaxing on the beaches of lakes and boating or kayaking on rivers. Continue reading to receive a short introduction to this doctrine and its effects on the lives of Wisconsinites!

The Public Trust Doctrine is found in article IX, section 1 of Wisconsin’s Constitution:

“The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state . . . and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.”

But, the doctrine adopted in the Wisconsin Constitution occurred originally in the Northwest Territory Ordinance of 1787. However, the idea that bodies of water should be shared by all citizens has its roots in the ancient Roman Emperor Justinian.

But what effect does this very old idea have on the way we use lakes and rivers today?  The Public Trust Doctrine provides that the state, as the trustee, must hold all navigable water ways in trust, for the benefit of the public. This means that the state’s lakes and rivers belong to the public, and the state has the duty to protect these water ways. Those individuals who own land on the shore of a body of water, called riparian owners, own the land up to the water. However, riparian owners cannot own the water itself. The public owns up to where the water usually ends. This line is called the high water mark. That’s where the old-adage “it’s not trespassing as long as your feet are wet” comes from.

Over time the Public Trust Doctrine has evolved to adapt to the changes in our society, to ensure that the doctrine continues to operate effectively. For example, many public bodies of water in Wisconsin have beaches, boat launches, or other convenient points of access for the public. This is because to truly facilitate the public’s enjoyment of a body of water, like the Public Trust Doctrine decrees, the public must be able to access the water.

If you want to learn more about the history of the Public Trust Doctrine in Wisconsin, the Wisconsin DNR has produced two well-made YouTube videos, Part 1 and 2 of “Champions of the Public Trust.” The link for Part 1 of Champions of the Public Trust is here: https://www.youtube.com/watch?v=1VSlAWeSPeE . The link for Part 2 of Champions of the Public Trust is here: https://www.youtube.com/watch?v=E4z8XvSFiO4 .

Thank you for reading, and please contact an attorney at Kelly & Brand, Attorneys at Law, LLC for your legal needs.