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Right to Flow & Navigable vs. non-navigable waterways

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Bob Trapp

Thread Starter
Freshman Member
Joined
Nov 27, 2002
I am appraising a property in SE Wisconsin that has about 50 acres of land that they own free and clear (most of which consists of a lake), plus they have a "right to flow" in the adjacent 100 acres (should the water table exceed more than say 10 feet).

In addition, the property owners have been involved in numerous disputes with the state government on the issue of whether or not the lake that they own is navigable or non-navigable. If the state is correct, then the public may use their lake for fishing, etc.

The client is requesting that I value the property as if navigable, and as if non-navigable.

Also: The client also wants to know if the adjacent 100 acres of land that they have a "right to flow" has any market value.

I have compiled sales of parcels of land with water elements, but obviously no sales data is available showing other parcels with "right to flow" NOR am I finding land comps with non-navigable water ways.

Whatever help you can offer with this "turkey" would be appreciated!

Happy Thanksgiving

Bob Trapp
WI Certified General Appraiser in SE Wisconsin
 

Fred

Elite Member
Joined
Jan 15, 2002
Professional Status
Retired Appraiser
State
Virgin Islands
Bob,
How about arguing that a finding of "navigable" entails a total taking, which may evan leave negative value?

For example, does the presence of navigable water and "right to flow' create an easement or egress for the public in order for them to excercise their flowage rights of fishing and swimming in subject? If so, it is hard to see any unique "benefit" to ownership, only the possible burden of liability if someone drowns.

Maybe this is why you find no sales with navigable water. Maybe no prudent party would pay to "own" a lake, the party can alreay use for fishing and swimming. You sort of touch on the same issue with your question as to whether there is any value to the abutting land with navigable water that carries a "right to flow."
 

Restrain

Elite Member
Joined
Jan 22, 2002
Professional Status
Certified General Appraiser
State
Florida
I agree that a "navigtable" finding may be a negative. A prime example is property adjacent to Corps of Engineer lakes. They severly restrict the access to the lake (no docks, no cutting of folage between the property line or easement line and the water, must allow full access along the water frontage to the public, etc). Compare this loss of rights vs. the rights of ownership of a large lake (privacy, use, etc).

As to the flowage rights, this should be an easement right that is appurtant to the value of the lake. That is, the lake can get to X level using the flowage rights. If the lake could only get to Y level, would it affect value? If there's a difference, that would be the value of the flowage easement.

Roger
 

Don Clark

Elite Member
Joined
Jan 17, 2002
Professional Status
Certified Residential Appraiser
State
Virginia
It seems to me that this is a simple question of a "taking" whether it involves dry land or riparian rights. If the right is taken, it is the same as taking the land itself. The fact that the owned land is covered by water does not change the circumstance. i would advise getting an attorney. this is more a question of the owners right to be compensated for loss whether it is a right or the physical land site. The real value comes by way of use and control. However, the problem, at least in my market, is compounded by the fact that any waterfront land sells at a premium whether there is any right to use the waterway or not. People in my market pay a premium for lots near a reservoir and cannot use the lake by law. Wish i could help with examples that you seek but cannot. I wish you well in your search.

Don Clark, IFA
 

Fred

Elite Member
Joined
Jan 15, 2002
Professional Status
Retired Appraiser
State
Virgin Islands
I probably should not have said, "total taking," but rather no unique bundle of rights Whenever the current laws came into being there may have been what some would argue is a "regulatory taking." Most of the time this stuff gets chalked up to "police power." In the Lucas case, the Supreme Court seemed increase the likelihood of regulatory taking claims, but more recently the Palazzola case narrowed those prospects.

A good primer on the topic is:
http://supreme.lp.findlaw.com/constitution/amendment05/16.html
 

Jason Cowan

Sophomore Member
Joined
Dec 12, 2002
Professional Status
Licensed Appraiser
State
Virginia
I agree that contacting an attoryney is the way to go. In Virginia, the question of navigable vs. non-navigable is decided by the suitability of the body of water to serve a commercial purpose. (Different from recreational swimming and fishing) That is to say, could one use the water to transport goods, etc. The water must also be ocean-going i.e. a creek which leads to a river which leads to the ocean would render all the water from the creek to the ocean navigable. So most ponds or lakes would not be considered navigible. However, I would imagine this would vary greatly from state to state.
 

Restrain

Elite Member
Joined
Jan 22, 2002
Professional Status
Certified General Appraiser
State
Florida
Warning! Warning, Will Robinson! Having flowage easement rights may create a floodlands and be subject to the Corps of Engineers. In Florida, a trench cut for a sewer line (yes, a trench) from a house to the road (not anywhere near a creek, etc) was ruled to be a wetlands (it rained). The Corps was wanting $118,000 in fines for filling it in.

True Story - showed up on the news websites a couple of days ago.

Roger
 

Mike Garrett RAA

Elite Member
Gold Supporting Member
Joined
Jan 14, 2002
Professional Status
Certified Residential Appraiser
State
Colorado
Sure sounds like an appraisal assignment for someone who is expert in this type of work....I, personally, would have Run Like The Wind!!!!!!
 

jtrotta

Senior Member
Joined
Jan 16, 2002
Check;

Inland Wetland Issues- "Locally"

Army Corp of Engineers; and yes RStrahan they can do that, happened to a builder I know, a few months back, actually shut the job down for about three weeks; they had to build special strainers, so that no dirt/mud or other foreign matter would get into the local waterway's.

Good Luck

8)
 

Verne Hebert

Senior Member
Joined
Feb 25, 2002
Professional Status
Certified General Appraiser
State
Montana
Before getting into the appraisal issue, I would attempt to clarify what your client expects to do with this report. After paying your fee they may find they were flowing down the wrong stream.

You can condition this report how they want; but if the result is little cared about due to the parameters imposed, it is just an exercise.

You have a bearcat.

You are inferring there is no ground access. Is this true?

Riparian issues are very much a state issue. You will need all recent state rulings. Contact BLM, State Lands, Fish and Wildlife, and any other large land owners for transactions.

There are many issues like this going on in Montana---I am not so sure any credible parallels could be develped however due to the foundational difference in state laws to begin with.

How about Minnesota data?

I will continue to track the thread.

Good Luck!
 
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