Judge rules for dam owners, against DNR
Decision has roots in decades-old dispute
At the second battle of Upper Spring Lake, its owners, lawyers and witnesses relied in part on the ghost of the victor at the first legal skirmish almost 50 years ago.
Beth Martineau was an artist who lived on the lake and famously defeated the State of Wisconsin’s attempt to claim part of her shoreline, after infamously shooing off trespassers with signs, fences and rifle shots.
Her nearby gravestone reads, “I fought the DNR, and I won.”
In reliance on the legal title they believed she had established, the current owners sunk more than $1 million into rebuilding the 19th-century dam that creates the secluded Jefferson County lake, only to have the DNR raise questions after the project was done.
Dave Porter and John Taylor, commodities traders from Illinois, formed Row Boat LLC to buy the property out of bankruptcy in 2008, the same year massive storms destroyed the dam. They worked with the DNR on the permit to rebuild it only to later discover the DNR felt it owned the land around the lake.
In 2017, Row Boat asked the court to “quiet title” the property, that is, declare its legal boundaries and ownership. It was no easy task. The next two years would involve reviewing more than a century’s worth of land records, field inspections, aerial photographs, surveys, engineering reports and interviews with old-timers about when Martineau owned the property.
Jessica Shrestha, Porter and Taylor’s attorney, said several octogenarians from the area recalled swimming, fishing, hunting and boating — with and without Martineau’s permission over the years — taking art lessons from her or going on a field trip to her trial.
“There were some good stories,” she said.
Jefferson County Circuit Judge William Gruber listened and saw more than 300 exhibits during a 41⁄2day trial in August. It took another six months for him to consider all the testimony, and the law, and reach a decision, which he announced from the bench March 11.
Gruber sided with Row Boat LLC. He found that not only did Beth Martineau properly own all the property by record title, she later established her ownership by adverse possession as well, meaning that even if she didn’t have legal title to start with, she acquired legal ownership by treating the land like her
own for years. He also dismissed the DNR’s counterclaim of trespass.
“This Court believes that the record is replete with more than sufficient evidence of open, notorious, hostile, exclusionary behavior by Ms. Martineau and her successors,” Gruber said, over the requisite 20 years to establish ownership by adverse possession.
And what Martineau owned is what Row Boat later purchased: as much land as the water covered when the water at the old dam was 13 feet, 4 inches deep. Because it was somewhat lower in 1972, the judge said then that Martineau also had a strip of dry land varying from 6 to 50 feet around the water’s edge.
The DNR says Row Boat — and all previous owners going back to the original grist mill owner in the 1850s — only ever owned “flowage rights,” or the right to impound water over others’ land, and has been trespassing on state land for years by flooding it with water impounded by the dam.
In the 1960s, the DNR’s predecessor, the Conservation Commission, began condemning land in the area to form what is now the southern unit of the Kettle Moraine Forest, which surrounds Upper Spring Lake.
The state’s loss of the condemnation action against Martineau in the 1970s didn’t settle who really owned the lake, the state says, and it disputed her claims in a variety of ways ever since.
Gruber found two of Row Boat’s expert witnesses, a surveyor and a water resources engineer, particularly persuasive. They convinced him that John McCollough, who first planned the grist mill in the 1850s, knew he needed as much land as he acquired to hold enough water to run the mill. Any lesser amount, they explained, wouldn’t have allowed McCollough to operate the mill he was planning.
Gruber agreed with the state that, over the years, there indeed were flaws in some of the deeds conveying the parcels involved but concluded that when he considered the extrinsic evidence, the true intent was clear.
Taylor and Porter were both in court throughout the trial and for the judge’s ruling and are “guardedly optimistic” they may have enough legal certainty to finally commit to building a couple of cabins for family getaways on the land, which had been the original plan.
“We know they have time to appeal,” Taylor said. “And with how the DNR had treated this property, since the 1960s, we just don’t know what to expect.”
Porter said Shrestha, their attorney, always seemed confident, but he felt it was a 50/50 throughout because something he thought was so simple when they started became so historically, technically and legally intricate.
He said it’s been frustrating to delay building the cabins he and Taylor dreamed about as their families’ getaway.
“It would be great, but I have tried not to make any plans. I only went there once last year. It’s been too depressing. It’s been eight years since we first approached the DNR to solidify the boundaries, which we thought would be easy.”
For one thing, Row Boat LLC agreed the upper creek and lake were navigable, and were OK with the occasional canoe or kayak entering the lake, They even made it easier for such users to portage around the new dam to the lower creek.
That was a concession Beth Martineau
never made.
The problems started when the DNR told people they could cross over Row Boat property to the lake. More people did, including some who were hunting ducks and leaving trash.
Row Boat’s biggest concern, though, was that the DNR would build a boat ramp on a shore of the lake, which Porter said is too small to support one, at less than 40 acres.
Though the agency still has time to appeal Gruber’s decision, it sounds like it’s ready to concede.
“The Department respects the Court’s decision and will take steps to provide signage that clarifies the public’s use of the Department’s adjacent lands,” said Sarah Howe, spokesperson for the DNR, who noted the public can still access the Scuppernong River and Upper Spring Lake by legally portaging at County Highway Z and at the dam.
“The Department values its relationships with all of its neighbors, and will be reaching out to Row Boat, LLC, to discuss the best ways to mark the boundaries of the Department’s properties.”