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Water Rights/Case Library

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Just v. Marinette County, 56 Wis. 2d 7 (1972)

Why this matters: Wisconsin told a couple they could not fill their own wetland, and that this was not a taking requiring compensation. The reasoning was that nobody has a right to destroy the natural character of their land. If you buy Wisconsin land with wetland on it, this is the case that decides what you can do with it.

Doctrine: Public trustpublic trust doctrineThe state holds navigable waters and the land beneath them for everyone, and cannot sign that away. Wisconsin's version is written into the state constitution and is among the strongest in the country., regulatory takingsregulatory takingWhen a government rule restricts your property so severely that courts treat it as taking the property, which would require payment. Wisconsin courts have been unusually willing to say a shoreline rule is not one., shoreland zoningshoreland zoningCounty rules controlling what you can build within 1,000 feet of a lake or 300 feet of a river. They set your setbacks, your buffer, and how much of the lot you can pave.

Case name and citation

Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

Court and year

Supreme Court of Wisconsin. Decided October 31, 1972.

One-line holding

A shoreland zoningshoreland zoningCounty rules controlling what you can build within 1,000 feet of a lake or 300 feet of a river. They set your setbacks, your buffer, and how much of the lot you can pave. ordinance prohibiting the filling of wetlands is a valid exercise of the police powerpolice powerA government's basic authority to regulate for public health and safety without having to pay you for the restriction. and does not constitute a taking requiring compensation, because a landowner has no right to change the essential natural character of land in a way that harms public rights.

Facts

Ronald and Kathryn Just owned land along Lake Noquebay in Marinette County. Part of it was wetland.

Marinette County had adopted a shoreland zoning ordinance under state law, placing wetlands in a conservancy district. The ordinance restricted changing the natural character of land within 1,000 feet of a navigablenavigable in factWisconsin's test for whether a waterway is public. Roughly: can a small recreational boat float on it on a regularly recurring basis. A lot of modest creeks qualify. lake and 300 feet of a navigablenavigable in factWisconsin's test for whether a waterway is public. Roughly: can a small recreational boat float on it on a regularly recurring basis. A lot of modest creeks qualify. river.

Filling wetlands required a conditional use permitconditional use permitPermission for a use that a zoning district allows only with specific approval and attached conditions.. The Justs filled without one.

The county brought a forfeitureforfeitureLosing a water right automatically after a set number of years of non-use, commonly 5. Unlike abandonment, what you intended does not matter. action. The Justs brought their own action seeking a declaration that the ordinance was unconstitutional as applied to them, arguing it amounted to a constructive takingregulatory takingWhen a government rule restricts your property so severely that courts treat it as taking the property, which would require payment. Wisconsin courts have been unusually willing to say a shoreline rule is not one. of their land without compensation.

Their argument was intuitive and, in most of the country at the time, likely to win. The regulation stripped their land of the use that gave it value. Wetland you cannot fill is wetland you cannot build on.

Do the conservancy district and wetlands-filling restrictions amount to a constructive taking of the Justs’ land without compensation?

Holding and reasoning

The court held the ordinance constitutional and affirmed the forfeitureforfeitureLosing a water right automatically after a set number of years of non-use, commonly 5. Unlike abandonment, what you intended does not matter..

Its reasoning inverted the usual takings frame. The question was not how much value the regulation destroyed. The question was whether the prohibited use was one the owner ever had a right to.

The court’s central sentence: “An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others.”

Uses consistent with the nature of the land, what the court called natural and indigenous uses, remained available. Some filling was allowed where it caused no harm. Other uses were available by special permit. The Justs were not stripped of everything.

The court then drew the harm-benefit distinction that carries the opinion. Government must pay when it takes property to secure a public benefit. It need not pay when it prevents a public harm. Destroying a wetland to make it habitable was harm.

What made this case different from ordinary zoning, in the court’s words, was “the interrelationship of the wetlands, the swamps and the natural environment of shorelands to the purity of the water and to such natural resources as navigation, fishing and scenic beauty.”

On valuation, the court held that value derived from changing the character of the land at the expense of public rights is not the controlling measure. You don’t get compensated for the loss of a development premium that depended on destroying a protected resource.

The court acknowledged it was moving ahead of other jurisdictions, noting that no Wisconsin case had addressed shoreland regulations and that several other states had struck such rules down.

Why it matters

Just is one of the most cited state environmental law decisions in the country, and it arrived at the front edge of the modern regulatory takings debate.

It extended the public trustpublic trust doctrineThe state holds navigable waters and the land beneath them for everyone, and cannot sign that away. Wisconsin's version is written into the state constitution and is among the strongest in the country. from navigable water and submerged beds to the shorelands and wetlands physically connected to them. That’s a real doctrinal expansion, and it’s the reason Wisconsin’s trust reaches further than most states’.

The harm-benefit test it applied has aged unevenly. Federal takings doctrine moved toward the multi-factor Penn Central analysis and, in Lucas v. South Carolina Coastal Council (1992), toward asking whether a regulation deprives land of all economically beneficial usebeneficial useActually using water for something productive: farming, drinking, industry, and in most western states now, keeping fish alive. In the West it is what earns you a water right and what caps how much you get., with an exception for restrictions inherent in background principles of state property law.

Just survives partly because it can be read as a background-principles case. Wisconsin property law never included the right to destroy a wetland that protects navigable water. If the right was never in the bundle, taking it away isn’t a taking.

Compare Edwards AquiferaquiferUnderground rock or sand with water in the spaces between the grains. It is not an underground lake. Water seeps through it slowly, often only feet per year. Authority v. Day (2012), where Texas went the other direction and held groundwater in place is owned property whose regulation can be a compensable taking. See 2012-edwards-aquifer-authority-v-day.md.

What it means for a landowner today

Treat this as the governing assumption for any Wisconsin parcel with wetland, shoreland, or floodplain.

Practical translation:

  • Wetland on the parcel is a use constraint, not a development opportunity waiting on a permit fee. Assume you cannot fill it.
  • Shoreland zoning applies within 1,000 feet of a navigable lake, pond, or flowage and 300 feet of a navigable river or stream, or to the landward edge of the floodplain, whichever is greater.
  • A regulation that destroys most of your land’s market value can still be constitutional in Wisconsin.
  • Buying land on the theory that you’ll get a variancevarianceAn official exception to a zoning rule. They are hard to get, and buying land on the assumption you will get one is the expensive way to learn that. or a permit later is the expensive way to learn this case.

What to verify before closing:

  • A wetland delineation by a qualified professional, not a glance at a map. The Wisconsin Wetland Inventory is a screening tool, not a determination.
  • The county shoreland zoning ordinance and the specific district your parcel sits in.
  • Floodplain mapping.
  • Whether any prior owner filled or altered anything without a permit, since enforcement liability can follow the land.

Who verifies: a wetland delineation professional, the county zoning administrator, the Wisconsin DNR, and a Wisconsin real estate attorney. Federal wetlands under the Clean Water Act are a separate overlay administered by the Army Corps of Engineers, and its jurisdictional scope narrowed after Sackett v. EPA (2023), which makes the state and county layers more important, not less.

Subsequent history / is it still good law

Good law as of July 2026. Just has never been overruled by the Wisconsin Supreme Court and remains a foundation of Wisconsin shoreland and wetland regulation.

Two developments qualify it. Federal takings doctrine evolved substantially after 1972, and a modern challenge would be litigated under Penn Central and Lucas as well as under Just. And Rock-Koshkonong Lake District v. DNR, 2013 WI 74, held that public trust jurisdiction does not extend to non-navigable land or non-navigable wetlands above the ordinary high water markordinary high water markThe physical line on a shoreline showing where water regularly reaches. On a Wisconsin lake your private property stops there and the state owns the bed below it. The DNR decides where the line is, not your deed., while confirming the DNR’s separate statutory police powerpolice powerA government's basic authority to regulate for public health and safety without having to pay you for the restriction. authority over them. See 2013-rock-koshkonong.md.

The practical result of Rock-Koshkonong is that the regulation survives, with the state relying on police power rather than the constitutional trust for wetlands above the mark.

Sources

Research demo, not legal advice. Facts current as of July 2026. Water law is state-specific and moves quickly, so confirm anything you plan to act on with a licensed attorney and the relevant state agency.