Skip Ellings examines the "Notice of Removal" posted on the late Ray Martin's houseboat in Aghaming Park. Martin's heirs and the City of Winona may be headed for a legal battle over ownership of the property.
Last November, after a weekend of hunting at his family's boathouse on the Mississippi River, Eric Martin received another disconcerting letter. The letter said that the land on which his family's boathouse had sat (and floated) for over 55 years did not belong to them. It gave Martin two and a half months to remove the boathouse and stated that "any personal property and structures remaining thereafter are deemed to be trespassing, a public nuisance, abandoned and forfeited to the owner to be thereafter secured, removed, and disposed of" at the owner's discretion.
The declared owner? The city of Winona.
It was not the first letter to the same effect that Martin had received from the city. At least, four letters starting in no later than February 2012, explained the city's position—the boathouse had to go. Martin said he and his attorney replied the same way each time, asking the city for its legal authority to take away what they believe to be Martin's property.
Both Martin's and the city's connections to the property are unusual. The property lies within Aghaming Park, a piece of land given to the city by the late philanthropist John Latsch. The land is part of the Wisconsin, however. Legally, the city of Winona is considered a private landowner in Wisconsin, just like any individual. Any legal battle over the land would have to be resolved in Wisconsin courts, or as, the Winona City Attorney pointed out, such a battle could go to federal court.
The city is interested in removing Martin's property because of a pending agreement with the U.S. Fish and Wildlife Service (FWS) (see sidebar).
Eric Martin's claim to the property goes back to his father, the late Ray Martin. Ray Martin was a commercial fisherman who lived on the property for over 55 years before his death in 2010. Ray Martin was "the last true river rat"—he lived and survived on the river—said Skip Ellings, a friend of Ray Martin. Former Winona Mayor Jerry Miller agreed, "Ray was the last of a breed."
Ray Martin set up his houseboat on a part of Aghaming Park far from Latsch Island. Folks and officials alike knew he was living at the site. Fisherman and all kinds of people would come over for coffee on Sunday mornings, Eric Martin recalled of his childhood along the river backwaters. Ray Martin had Sheriff Dave Brand's personal phone number, Ellings said. When Ray would cross the river to go to town in the winter, he would leave his canoe staked to the ice in the middle of the river, after canoeing across any open water. He always called Sheriff Brand to let him know, Ellings said, in case anyone who saw the empty canoe would call in a drowning.
Ray Martin also got calls from the coroner when real drownings occurred, according to Ellings. "He lived on the river and he had the hooks," Ellings said. "He knew the currents; if somebody drowned, the sheriff would call Ray." Because of his expertise, Ray Martin helped establish the Winona County Dive and Rescue Team.
At first, Ray Martin's residence was illegal—some say he was "squatting." However, under Wisconsin law, if a person uses and maintains a property for twenty years without being evicted, the property legally becomes his. That process is called "adverse possession" and has been upheld by many court decisions.
Eric Martin said if the city follows through with its threats to remove the boathouse he is prepared to sue with a claim of adverse possession.
"In the end I'm willing to do what it takes to preserve my father's legacy. But it really doesn't have to go that far," Eric Martin said. "If it goes to court, everybody loses. I have to pay for an attorney and so does the city. That's a horrible way to spend tax money."
Martin said that what he would like to see happen is for the property to be excluded from the FWS agreement (see sidebar) and for the city to lease the property to him for 10 years. Martin also offered to donate the property to a public group like the Boy Scouts, he said, but the city refused.
Martin said that removing the property in the winter—or anytime when the water was not open and high enough—was physically impossible. "Even if the city did not want me there in 10 years, I could start planning my departure," he said.
Winona City Manager Judy Bodway said the city disagrees with the adverse possession claim. City Attorney Chris Hood also said he he did not believe adverse possession applied to the Martin property. For starters, municipalities are exempt from adverse possession, he said. However, since Winona is generally treated by Wisconsin law as a private property owner with regard to Aghaming Park, it is unclear whether the Wisconsin statute's exemption of municipalities from adverse possession would apply. Hood said that he believed that it did and added that there are other reasons why adverse possession did not apply, in his opinion. However, he declined to comment on the specifics of potential litigation.
Hood said that the city is willing to face a lawsuit over the property. "We are doing what we believe is correct. If someone wishes to pursue a lawsuit, that's their right to do," Bodway said.
Bodway declined to answer questions about whether risking a lawsuit (and the expenditure of public funds that goes with it) over the property was wise, except to say that "there is no lawsuit at this point."
Removal of Ray Martin's boathouse
A long hike through frozen backwaters (and some questionably frozen ones) leads to the isolated sliver of land where the Martin boathouse still sits. A blaze orange square of rough plywood with a sign reading "Notice of Removal" stands out from the neatly-painted cabin. The "Notice of Removal" is marked with the crisp signature of City Manager Bodway and the scrawl of a FWS officer.
Ray Martin spent all his time there. "This place was his life," said Ellings. If the water had not been too low just before his death, Ray Martin "would have been out here with an oxygen tank," Ellings said.
Eric Martin grew up on that property. "Each year during duck season my father marked how much I grew from the year before," he said. "When I had my oldest son, we marked his height there as well. I could look at every thing there and tell you a story about it; that is how in-tune to that place I am and how much it is a part of my life."
So far no action has been taken to follow through on the notice's threat of removal. Whether the city has the authority to take the property may be a legal question mark.
The State of Wisconsin has legal jurisdiction over Aghaming Park. Since the reason for the city's deal with the FWS (see sidebar) is the city's lack of jurisdiction in the park, one might assume that the city also lacks the authority to legally take a private residence in the park.
Bodway declined to answer questions about the city's legal authority for the notice of removal. Hood said that the legal authority for removal did not rest solely with Wisconsin.
"The city has the legal authority to remove that property and to act through appropriate channels to do so," Hood said. "Meaning that if we have to take action, we will take action, we will defend action in district court or federal court, and we have the legal authority based on the laws in the State of Wisconsin and laws of the State of Minnesota to act on personal property that is located on property owned by the city."
Discussion of friendly deal between city, Martin failed
It is hard to imagine, given their current relationship, but open and amiable talks between the city and the Martins were going on less than three years ago. Former Mayor Miller and City Planner Mark Moeller met with Ray Martin before his death, and met with Eric Martin and Skip Ellings after Ray Martin's death to discuss a possible deal. The idea was a 10-year lease agreement, in which the city would maintain ownership of the land and lease it for 10 years to Ray Martin's heirs. "This discussion was off the cuff at this point," said Moeller. Miller also said it was a preliminary discussion and that no agreement was made.
The lease agreement would have "drawn a circle" around the disputed property, excluding it from the management agreement with the FWS. Local FWS District Manager Mary Stefanski said this was discussed with the FWS. "Yeah, that was one of the options that we had," she said of excluding the disputed property from FWS management (see sidebar).
Later, city officials determined a lease agreement was legally impossible because the John Latsch deed for Aghaming Park specifies that the property cannot be leased to private parties. "It wasn't until after [meeting with Eric Martin] that we did our research on Latsch deeds," Moeller said. "After the research we felt like there was no way we could enter an agreement with anybody. There was not a valid way to lease that property."
The Aghaming deed does restrict private leases. However, other Latsch land gifts with similar restrictions have seen exceptions to the rule against private leases. In 2010, the city and the John Latsch Memorial Board attempted a deal which would have removed a number of private cabins from Winnebago Island (another Latsch gift) because of deed language forbidding private leases of the land. After a Winona Post investigative report showed evidence that private cabins were present on the island while Latsch was alive, and that he would visit them on canoe trips, city and John Latsch Memorial Board leaders re-thought assumptions about what Latsch really wanted for the land. Ultimately, the city signed long-term leases allowing the cabins to remain.
Latsch and Ray Martin were kindred spirits when it came to freely enjoying river lands, Ellings said. "If Latsch were alive he would be sitting here having coffee [with Ray]."
But, for now, the city is as strongly set on removing the property as Eric Martin is on preserving it. "We do not believe it is adverse possession, the agreement with the Latsch property exists, it doesn't allow the usage, and that's our position," Bodway said.
"I'm kind of perplexed by the whole situation—that they are not even willing to negotiate. It is like they're trying to strong arm me," Eric Martin said.
"I want to preserve my father's legacy," he added. "Everything on that island tells his story. I would be doing his legacy a dishonor if I didn't fight for it."
One way or another, the city will have to come to a resolution for the disputed property before the FWS will take over Aghaming Park.