[NOTE: ON APRIL 25, 2002, SNYDER ET. AL., TOOK JUDICIAL REVIEW IN THE STEUBEN CIRCUIT COURT IN CAUSE NUMBER 76C01-0204-PL-0208. SNYDER, ET AL. FILED MOTION TO DISMISS MAY 13, 2002. ON MAY 14, 2002, THE STEUBEN CIRCUIT COURT ENTERED AN ORDER OF DISMISSAL.]
Summary judgment is granted in favor of the Respondents and against the Claimants with respect to 312 IAC 11-3-1(b)(8). As residents of Oakwood Place, the Respondents have legal standing to place, by or with the acquiescence of a riparian owner, piers or docks within the 30-foot easement of Dock Street on Hamilton Lake.
FINDINGS OF FACT
A. JURISDICTION AND APPLICATION OF AOPA
1. At common law, property owners with lands abutting a river, stream, or lake acquire "riparian rights" with respect to the body of water. TUESBURG LAND CO. v. STATE, 78 Ind. App. 327, 131 N.E. 530 (1921)[FOOTNOTE 1].
2. The Indiana General Assembly enacted public trust legislation that modifies common law riparian rights by recognizing the public's right to preserve natural scenic beauty and recreational values. Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001). The legislation is codified at IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act"), and rules to help implement the statutory structure are set forth at 312 IAC 11.
3. The legislation provides the state has "full power and control of all of the public freshwater lakes" and "holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes." IC 14-26-2-5(d).
4. These recreational purposes include fishing, boating, swimming, water storage to maintain water levels, and any other purpose for which lakes are ordinarily used and adapted. IC 14-26-2-5(b).
5. A person who owns land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake. IC 14-26-2-5(e).
6. Riparian landowners continue to possess rights along a public freshwater lake, but the rights are now statutory and must be balanced with the public's rights. Lake of the Woods v. Ralston at 401.
7. In order to support the values expressed in the Lakes Preservation Act, as well as to balance the rights of the public and those of riparian landowners, the legislature established a licensure system to be administered by the Department of Natural Resources (the "Department").
8. A person may not change the level of the water or the shoreline of a public freshwater lake by excavating, filling in, or otherwise causing a change in the area or depth of or affecting the natural resources, scenic beauty, or contour of the lake below the waterline or shoreline without having a written license issued by the Department. IC 14-26-2-6.
9. The Court of Appeals of Indiana declined to apply this licensing authority to the placement of temporary piers in Indiana Department of Natural Resources v. Town of Syracuse, 686 N.E.2d 410 (Ind. App. 1997). The statutory authority was found applicable only to activities of a "more violent and substantial nature," such as dredging and mining.
10. Following the TOWN OF SYRACUSE decision, the Indiana General Assembly clarified its legislative intent to reflect the licensing requirements of the Lakes Preservation Act apply also to the placement of both permanent and temporary structures. P.L. 64-2000. In order to assist
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in the implementation of the Lakes Preservation Act, the Indiana General Assembly directed the Commission to provide, by rule, standards for licensing "(A) the placement of a temporary or permanent structure or material; or (B) the extraction of material; over, along, or within a shoreline or waterline" of a public freshwater lake. "The standards shall exempt any class of activities from licensing if the [C]ommission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights"[FOOTNOTE 2] described in Finding 3, Finding 4, and Finding 5. IC 14-26-2-23.
11. Applying the statutory authority, the Commission exempted the placement of temporary structures, such as temporary piers, where those structures meet standards set forth 312 IAC 11-3-1(b). In order for a temporary structure to qualify for the exemption (sometimes called a "general license"), it must satisfy each of the following: (1) Be easily removable. (2) Not infringe on the access of an adjacent landowner to the public freshwater lake. (3) Not unduly restrict navigation. (4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake. (5) Not extend more than one hundred fifty (150) feet from the legally established or average normal waterline or shoreline. (6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the legally established or average normal waterline or shoreline. (7) Not be a marina. (8) Be placed by or with the acquiescence of a riparian owner.
12. In statutory amendments made by the Indiana General Assembly in 2000, a process was also described for mediation and administrative review by the Commission of disputes among riparian owners or between a riparian owner and the Department concerning the usage of an area over, along, or within a shoreline or waterline for a matter within the jurisdiction of the Lakes Preservation Act. P.L. 64-2000 as codified at IC 14-26-2-3(3).
13. Applying the statutory authority, the Commission adopted a new rule section. A riparian owner or the Department may initiate a proceeding under IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and 312 IAC 3-1 to seek resolution by the Commission of a dispute among riparian owners, or between a riparian owner and the Department, concerning the usage of an area over, along, or within the shoreline or waterline of a public freshwater lake. A party to the proceeding may also seek mediation under IC 4-21.5-3.5. 312 IAC 11-1-3.
14. Coleen Snyder and Glen Snyder initiated this proceeding when on June 18, 2001 they filed correspondence with the Commission. The correspondence alleged Ed Linder and Lee Reed wrongfully placed a pier at the end of an easement known as Dock Street in the plat of Oakwood Place on Hamilton Lake, Steuben County.
15. Mr. and Mrs. Dennis Miller, Charles Lamb, Pam Kruse, Dr. and Mr.s Duane Nodine, Mr. and Mrs. Jim Smolik, and Dr. and Mrs. Wayne Miller subsequently requested and were granted leave to intervene with Coleen Snyder and Glen Snyder as Claimants. These persons are collectively referred to as the Claimants.
16. Donald L. Reed, Margo Reed, Max A. Gnagy, Lynn Gnagy, and Joan A. Campbell subsequently requested and were granted leave to intervene with Ed Linder and Lee Reed as Respondents. These persons are collectively referred to as the Respondents.
17. Hamilton Lake in Steuben County is a "public freshwater lake" as defined in IC 14-26-2-3 and 312 IAC 11-2-17. The pier described in Finding 14 would be located, at least in part, within the shoreline or water line of Hamilton Lake.
18. The Commission has jurisdiction over the subject-matter of this dispute under the Lakes Preservation Act and over the persons of the Claimants and
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the Respondents. AOPA and rules adopted by the Commission at 312 IAC 3-1, to assist in the Commission's implementation of AOPA, apply to this proceeding.
B. COMMISSION AUTHORITY TO DETERMINE RIPARIAN RIGHTS
19. A prehearing conference was held on July 26, 2001 at which the Claimants and the Respondents agreed, through their respective attorneys, that a threshold issue is who has riparian rights on the portion of Hamilton Lake that is in dispute. A full determination of the issue may require disposition of who may exercise the rights of others, the exclusivity or non-exclusivity of certain rights, and the nature of the rights.
20. The Claimants and Respondents also agreed the Commission should determine the issue in the exercise of its regulatory authority lakeward of the shoreline, although any determination by the Commission would be subject to judicial review.
21. The Commission authority described in Finding 20 may be derived directly from IC 14-26-2-23, or it may be derived from the doctrine of primary jurisdiction. Determining which is the source of authority may bear upon whether the Commission is entitled to deference on judicial review, but determining the source of its legal authority is unnecessary to administrative review.
22. During the July 26 prehearing conference, the attorneys for the Claimants and Respondents also agreed upon, and were then ordered to complete, a schedule for filing cross-motions for summary judgment with respect to riparian rights. The Brief of Claimants with supporting documentation was filed on October 12, 2001. The Respondents' Motion for Summary Judgment with supporting documentation, and their Brief in Support of Motion for Summary Judgment, were filed on October 15, 2001. The Claimants filed their Reply Brief on November 15, 2001. All the filings were made in a timely fashion.
23. The Respondents elected not to file a reply brief, but they requested oral argument be set for December 12, 2001. The request was granted and oral argument heard in Fort Wayne as scheduled.
24. The proceeding is ripe for disposition by the Commission on summary judgment with respect to riparian rights.
C. SUMMARY JUDGMENT UNDER AOPA
25. Summary judgment is appropriate where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insuance Co., 560 N.E.2d 459 (Ind. App. 1990). A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).
26. Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n cited previously. Summary judgment is made applicable to this proceeding by IC 4-21.5-3-23 that provides in pertinent part:
(a) A party may, at any time after a matter is assigned to an administrative law judge, move for summary judgment in the party's favor as to all or any part of the issues in the proceeding. The motion must be supported with affidavits or other evidence permitted. . .
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and set forth specific facts showing that there is not a genuine issue in dispute.
(b) . . . The [summary] judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. After the filing of a motion for summary judgment . . . .the requirements of subsection (f) apply.
. . . .
(f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party's pleadings as a response to the motion.
27. The principles of summary judgment under AOPA should be applied based upon facts set forth in the following Findings.
D. RIPARIAN RIGHTS WHERE DOCK STREET TERMINATES ON HAMILTON LAKE
28. The plat of Oakwood Place was recorded in the Records of Steuben County, Indiana, Plat Book Volume II, Page 44, on April 21, 1913. Respondents' Exhibit A. The dedication portion of the plat as it is found in the Records of the Steuben County Recorder states in substantive part:
Oakwood Place a village situated on Fish Lake[FOOTNOTE 3] near Hamilton in Steuben County, State of Indiana, which is represented by this Plat, is situate in sections twenty eight (28), thirty three and thirty four (34) in Otsego Township, in said Steuben County, Indiana, a particular description of which is contained in a deed of conveyance from Jno. F. Cameron and his wife to the DeKalb Mortgage Loan Co. which deed is recorded in the office of the County Recorder of said Steuben County in Deed Record No. 68 at page 541 which description is made a part hereof as fully and completely as though set out herein in full.
The size of lots, width of streets and alleys, and shore line is designated in said plat.
The said land is platted for the purpose of establishing a place for summer homes and the streets, alleys and shore line is hereby dedicated to the use of the lot owners of said Village of Oakwood subject however to the rules and regulations to be hereafter promulgated by said owners and subject to the conditions named in deeds of conveyance hereafter made by the DeKalb Mortgage Co. of Auburn, Indiana, to the Purchasers of said lots in said Village of Oakwood.
In Witness Whereof the said Dekalb Mortgage Loan Co. hereby subscribes its name by its President and Secretary and has caused its Corporate seal to be herein fixed, the 25th day of July 1912.
29. The streets, alleys, and shoreline area referenced in Finding 28 (the "common areas") were also reflected in the original plat of Oakwood Place. As originally documented, the common areas had no legal distinctions among them. Commission's Exhibit I.
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30. On May 1, 1993, Glen Snyder and Coleen Snyder and others filed suit in the Steuben Circuit Court under cause number 76C01-9305-CP-269 for the purpose of quieting title to the portions of the plat of Oakwood Place that lie between their respective parcels and the shore of Hamilton Lake. In June 1994, the Steuben Circuit Court entered judgment quieting title in favor of the Snyders and the other claimants.
31. Subsequent to the quiet title action described in Finding 30, the common areas became restricted to the alleys, the streets, and the extensions of the streets to the shoreline of Hamilton Lake. Other portions of what was formerly shoreline area are now in the individual ownership of the adjacent lot owners.
32. The relevant portion of the plat map of Oakwood Place, as currently maintained in the Records of the Auditor of Steuben County, Indiana, illustrates the positioning of lots and their relation to Hamilton Lake. Alleys and streets are described within Oakwood Place, including those roughly parallel to the shoreline of Hamilton Lake and those roughly perpendicular to Hamilton Lake. Those perpendicular to Hamilton Lake are Hill Street, Water Street, and Dock Street. With the quieting of title to the portions of the common areas that were originally along the shoreline, lots adjacent to what were formerly shoreline common areas now abut Hamilton Lake. Respondents' Exhibit B.
33. Hill Street, Water Street, and Dock Street are all 30 feet wide at the shoreline. Affidavit of Donald Reed and Commission's Exhibit I.
34. The first deeds of DeKalb Mortgage Loan Company (the grantor recording the plat of Oakwood Place) were issued to the first purchasers of property in Oakwood Place between 1914 and 1918. These identify opportunities and responsibilities of the first purchasers relative to development of their lots. The portion of these deeds that is most pertinent states a purchaser "shall have the right to use of any and all streets dedicated as shown by the plat" described in Finding 29 "together with the right to pass over and upon the land on the lake front which is not platted into lots;" the first purchaser "shall have no right to erect any boathouse or buildings on the water's edge or upon the lake front except by written permission" by Dekalb Mortgage to the purchaser, but the first purchaser "shall have the right to use the docks and shore for the landing of boats and the use of the bathing beaches in common with all the owners of lots in said Village of Oakwood Place. The conditions named in this conveyance shall be equally binding upon" the first purchaser and the "heirs and assigns" of the first purchaser. "For a wilful violation of the conditions named in this conveyance, the first purchaser and the heirs and assigns of the first purchaser "shall forfeit all rights to said property and the title and ownership thereof and it shall become the absolute property of the other owners of lots in said Village of Oakwood Place." Although there are clerical or typographical distinctions among the first deeds, they are substantively identical. Respondents' Exhibit C.
35. A "pier" is a long narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes. A "dock" is a slip or waterway that is between two piers or cut into the land for the berthing of boats. Glossary, 6 WATERS AND WATER RIGHTS, pp. 904 and 929 (The Michie Company 1991, 1994 Replacement).
36. Two piers are maintained within the easement at the end of Hill Street. The piers were erected by Greg Meekus and Tim Derck. Piers have been erected at the extension of Hill Street into Hamilton Lake for many years. Affidavit of Donald Reed. The existence of these piers has the effect of establishing docks extending lakeward from the shoreline of Hamilton Lake.
37. Water Street has been used for many years as a site for [PAGE (IX 50) BEGINS] launching boats from vehicular trailers into Hamilton Lake. Railroad ties are placed in the ground and concrete submerged in the water to form a more solid base for boat trailers to back through the easement and into the water to facilitate boat launching. Affidavit of Donald Reed.
38. The focus of the Respondents' motion for summary judgment, and of the Claimants' response to the motion, is Dock Street. The threshold question presented is who has rights lakeward of the shoreline at the terminus of Dock Street on Hamilton Lake. Relative to the jurisdiction of the Commission, this question bears upon IC 14-26-2-23 (Finding 10) and its administration of the jurisdiction as described in 312 IAC 11-3-1 (Finding 11). Notably, 312 IAC 11-3-1(b)(8) authorizes the placement of a temporary pier or other temporary structure upon a general license if placed by or with the acquiescence of a riparian owner.
39. "Riparian owner" is defined at 312 IAC 11-2-19 as "the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake. The term includes a littoral owner."
40. 312 IAC 11-2-19 was a recodification of the definition originally set forth at 310 IAC 6-2-12 for "riparian owner." 310 IAC 6-2-12 became effective December 6, 1990 and was adopted by the Commission shortly after decisions were reported in Maxwell v. Hahn, 508 N.E.2d 555 (Ind. App. 1987) and Klotz v. Horn, 558 N.E.2d 1096 (Ind. 1990).
41. The Court of Appeals of Indiana determined in Maxwell v. Hahn that in construing an easement, the intention of the grantor must be given effect. When lands are granted according to a plat, the plat becomes part of the grant by which the land is conveyed so far as the limits of the land are concerned. Maxwell v. Hahn citing Gary Land Co. v. Griesel, 179 Ind. 204, 209, 100 N.E. 673, 675 (Ind. 1913). In effect, the holder of easements can enjoy riparian rights, if, in reviewing the easement and attendant plat, the fee owner is found to have intended to convey the enjoyment of riparian rights.
42. The Indiana Supreme Court stated in Klotz v. Horn that even though easement holders are not fee simple owners of real estate that touches the lake, it "does not necessarily mean that they, as easement titleholders, cannot use the riparian rights of the servient tenant." Emphasis in original. Once again, the intent of the grantor controls.
43. In identifying "an interest in land sufficient to establish the same legal standing as the owner of land," the Commission included the concepts embodied by Maxwell v. Hahn and Klotz v. Horn in the definition of "riparian owner." For purposes of 312 IAC 11-2-19, a "riparian owner" includes the holder of an easement if the grantor intended to convey riparian rights. For the purposes of 312 IAC 11-3-1(b)(8), an easement holder would place a temporary structure by or with the acquiescence of a riparian owner if the fee owner had intended to convey the enjoyment of riparian rights.
44. A deed granting an easement or right of way to a lake may be ambiguous as to the intent of the grantor. A conveyance providing "access to the lake" to noncontiguous owners was found to be ambiguous in Brown v. Heidersbach, 172 Ind. App. 434, 360 N.E.2d 614 (Ind. 1977). The court determined that where a conveyance is ambiguous, extrinsic evidence may be used to determine the intent of the grantor.
45. Similarly, extrinsic evidence was used to determine the intent of an easement in Metcalf v. Houk, 644 N.E.2d 597 (Ind. App. 1994). In Metcalf, an action was brought to prevent easement holders from building a pier on the lake at the end of an easement. In this instance, the easement granted "ingress and egress" over the servient estate "to the water's edge." Metcalf at 599. In determining the phrase was ambiguous, the court noted "generally, access to a
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body of water is sought for particular purposes beyond merely reaching the water, and where such purposes are not plainly indicated, a court may resort to extrinsic evidence to assist the court in ascertaining what they may have been." Metcalf at 600. To the same effect is Abbs v. Town of syracuse, 655 N.E.2d 114, 116 (Ind. App. 1995).
46. In the case currently before the Commission, the extrinsic evidence is unrefuted. Hill Street, Water Street, and Dock Street all provide access to Hamilton Lake that is 30 feet wide at the shoreline. Finding 33. Two piers are maintained within the easement at the end of Hill Street and have existed there for many years. Finding 36. Water Street has been used for many years as a site for launching boats from vehicular trailers into Hamilton Lake. Railroad ties are placed in the ground and concrete submerged in the water to form a more solid base for boat trailers to back through the easement and into the water to facilitate boat launching. Finding 37. The extrinsic evidence demonstrates each of these easements is suitable for the placement of docks to facilitate lake access, and the regular usages of Hill Street and Water Street indicate they have been understood by residents of Oakwood Place to be for these purposes. If the deed and attendant plat establishing these access routes were ambiguous, the record before the Commission would support a finding based upon extrinsic evidence that the Respondents are riparian owners who have standing under 312 IAC 11-3-1(b)(8).
47. Yet the deeds and the attendant plat do not suffer from the ambiguity challenging the fact-finders in Brown v. Heidersbach. The residents of Oakwood Place have "no right to erect any boathouse or buildings on the water's edge or upon the lake front except by written permission" by Dekalb Mortgage, but the residents of Oakwood Place do "have the right to use the docks and shore for the landing of boats and the use of the bathing beaches in common with all the owners of lots in said Village of Oakwood Place." Finding 34. Following the conclusion of the quiet title action described in Finding 30, the common areas available for these purposes were limited to the three 30-foot wide accesses at the ends of Hill Street, Water Street, and Dock Street. Finding 31, Finding 32, and Finding 33.
48. The plain meaning of the deeds is all the residents of Oakwood Place enjoy riparian rights for the placement of docks but not for the placement of boathouses. In the current context, the placement of docks is effected through the placement of piers.[FOOTNOTE 4] These rights are not exclusive to any particular type or class of resident but are rather held in common by all. This result is in harmony with Metcalf v. Houk discussed previously.
49. The Respondents have the requisite status under 312 IAC 11-3-1(b)(8) to place temporary piers at the end of Dock Street by or with the acquiescence of a riparian owner.[FOOTNOTE 5]
FOOTNOTES
1. Traditionally, a property owner along a river or stream was said to have "riparian" rights while one along a lake was said to have "littoral" rights. Following Hunter v. Kellogg, 563 N.E.2d 1338, 1339, n. 1 (Ind. App. 1990), the term "riparian" has been applied in Indiana to all bodies of water.
2. To similar effect is the Commission's authority to exempt an activity from licensing if the activity "poses not more than a minimal potential for harm." IC 14-10-2-4(b)
[VOLUME 9, PAGE 52]3. The parties agreed on December 12, 2001, during oral argument that this body of water is now commonly known as Hamilton Lake.
4. The deeds from DeKalb Mortgage would also authorize a dock formed by a cut into the shoreline, but this type of dock is not here at issue and would not qualify for a general license under 312 IAC 11-3-1.
5. Having the status of a riparian owner does not place in the Respondents unfettered authority. The lake access at Dock Street must be maintained in a way that allows for common usage by the residents of Oakwood Place. In addition, placement of a dock or pier is subject to the public trust doctrine and IC 14-26-2. In order to qualify for a general license, all subdivisions of 312 IAC 11-3-1(b) must be satisfied.