Content-Type: text/html Cause #: 01-161l.v9.html

CADDNAR


01-161l.v9 [CITE: Messenger v. Lenz, 9 CADDNAR 118 (2003)]

[VOLUME 9, PAGE 118]

Cause #: 01-161L
Caption: Messenger v. Lenz
Administrative Law Judge: Wilcox
Attorneys: Benson; pro se
Date: May 20, 2003

FINAL ORDER: [NOTE: ON JUNE 8, 2004, THE STEUBEN CIRCUIT COURT ENTERED AN ORDER OF DISMISSAL. THE LENZES APPEALED. ON DECEMBER 28, 2004, THE COURT OF APPEALS (76A03-0406-CV-288) ENTERED AN ORDER OF DISMISSAL. FOLLOWING THE ALJ'S FINDINGS OF FACT, IS THE APPEALS COURT MEMORANDUM DECISION-(NOT FOR PUBLICATION).]

Except for the Messenger's family members, the Messenger's guests, and non-paying invitees of the Messengers who occupy Lot 39, the Easement Agreement between Lenz and Messenger precludes the use of the easement by non-titleholders of property located at Lot 39 in Old Ford Plat, Steuben County, Indiana.

The Messengers, the Messenger's family members, the Messenger's guests, and non-paying invitees of the Messengers who occupy Lot 39, are allowed the use of the easement, specifically for ingress and egress across the vacated alley between Lots 25 and 26, to maintain a pier at the end of the alley, and to use the platform at the Water's edge as Strohl has done in the past.

The Messengers' riparian rights include the use of the pier as shown in Exhibit 9, including five sets of posts extending into the lake and attached to the deck. The Messenger's riparian rights include the use of mooring poles, nine, (9) feet eastward of the pier at the former Strohl pier.

Lenz shall remove the three, (3) foot extension to his pier, westward of the Lenz pier and adjacent to the Lenz boatlift, as shown in Exhibits 8 and 9.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. IC 4-21.5, IC 14-8 and IC 14-26 apply to these proceedings.

2. IC 14-26-2 is commonly referred to as the Lake Preservation Act. The Department of Natural Resources, "Department", is the state agency responsible for the protection and management of public freshwater lakes in Indiana, as provided in IC 14-26-2-5(d). As set forth in the statute, the state of Indiana "holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes." Id.

3. IC 14-26-2-23 authorized the Natural Resources Commission, "Commission" to promulgate rules in order to provide for the mediation and resolution of riparian disputes along shorelines. Rules were adopted at 312 IAC 11-1 to regulate construction activities at Indiana lakes.

4. 312 IAC 11-1-3 provides an opportunity for riparian owners to seek resolution of disputes along public freshwater lakes. The section provides:

Sec. 3. (a) A riparian owner or the department may initiate a proceeding under IC 4-21.5 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 a shoreline or waterline of a public freshwater lake.

[VOLUME 9, PAGE 119]

(b) A party to a proceeding initiated under subsection (a) may seek mediation of the dispute under IC 4-21.5. The administrative law judge shall approve the use of mediation if the request is made by:
(1) a party within thirty (30) days of the initiation of the proceeding;
(2) a party within thirty (30) days after a party is joined as determined necessary for just adjudication or by agreement of the parties; or
(3) agreement of the parties.
(c) The administrative law judge may at any time approve the use of mediation.
(d) If a good faith effort by the parties to the mediation fails to achieve a settlement, the department shall make an initial determination of the dispute, file the determination with the administrative law judge, and serve it upon the parties. Within twenty (20) days after filing the initial determination, a party may request that the administrative law judge perform administrative review of the initial determination.
(e) If a request for administrative review is received under subsection (d), the administrative law judge shall seek a final disposition of the proceeding as soon as is practicable.

5. On August 22, 2001, the Messengers, by counsel, filed a petition with the Commission to seek resolution of a dispute with George and Ann Lenz. The petition provides:

...Mr. and Mrs. Messenger are the owners of lot 39 in Old Ford Plat at Lake James, Pleasant Township, Steuben County, Indiana. Old Ford Plat is on the west side of the second basin of Lake James.... Their predecessor in title, Marilyn Strohl, entered into an easement agreement with Jean Webb Messenger, George C. Lenz, Jr. and Ann Lenz concerning certain riparian rights and easement rights that would be retained by the owner of lot 39 if the Steuben County Board of Commissioners would vacate a public alley that provided access to Lake James.

Mr. and Mrs. Messenger purchased Lot 39 in June of last year... This year Mr. and Mrs. Messenger rented lot 39, The tenants were planning to use personal water craft attached to the pier and Mr. Lenz objected to any portion of the water craft being on his portion of the vacated alley. The parties are not able to resolve this matter...

6. Respondent George and Ann Lenz filed Contentions on October 21, 2001, and provided:

(1). It is the contention of the Respondents that the Easement Agreement supplied by the Petitioners to the Court on or about the 22nd day of August, 2001, provides specifically in Paragraph No. 5, that the easement in question shall be used for personal benefit of the titleholders of Lot 39 and shall not be used for any commercial purpose.

(2). The Respondents contend that the proposed use of the easement by the Petitioners is, in fact, a commercial use and prohibited under its terms.

7. A mediation session was held in this matter, without success. See Mediator's June 17, 2002 Letter.

8. The easement agreement provides that it is "appurtenant and not in gross; said easement rights and obligations shall run with the title to both the servient parcels of MESSENGER (the one-half of the alley which adjoins Lot 25) and Lenz (the one-half of the alley which adjoins Lot 26) and the dominant parcel of STROHL (Lot 39.) An appurtenant

[VOLUME 9, PAGE 120]

easement passes by conveyance or inheritance with the dominant tenement. Sauxay v. Hunger (1873), 42 Ind. 44.

9. The easement agreement in the present case provides that the alley which extends between the Lenz and Messenger lots, #26 and #25 respectively, shall be utilized by Merilyn Shrohl, titleholder of Lot 39, her successors and assigns, as an easement across the alley. Additionally, the Agreement provides for the Lot #39 titleholder to have the "right of ingress and egress across the vacated alley" and "riparian rights, including the right to place a pier a the end of the alley and to continue using a platform at the water's edge as STROHL has done in the past."

10. In dispute is paragraph 5 of the Agreement, which provides, "[S]aid easement shall be used for the personal benefit of the titleholder(s) of Lot 39 and shall not be used for any commercial purpose."

11. The easement agreement for the property located at Lot 39, allows for the titleholder(s) of the lot to have "ingress and egress across said vacated alley and shall have riparian rights, including the right to place a pier at the end of the alley and to continue using a platform at the water's edge as STROHL has done in the past." See Claimant's Exhibit 4, paragraph 4.

12. Paragraph 5 of the Agreement provides that "Said easement shall be used for the personal benefit of the titleholder(s) of Lot 39 and shall not be used for any commercial purpose."

13. "An easement is limited to the purpose for which it was created and cannot be extended by implication." Brown v. Heidersbach, 360 N.E. 2d 614, 618 (1977), citing U.S. v. Johnson (D. Wash. 1933), 4 F. Supp. 77. Easements created by grant depend, for the determination of the extent of rights acquired, upon the terms of the grant properly construed; general rules of construction apply. Id. "An instrument creating an easement must be construed according to the intention of the parties, as ascertained from all facts and circumstances, and from examination of all its parts." Id. At 620.

14. Commercial purpose is analogous to commercial activity, defined as "any type of business or activity which is carried on for a profit." See Black's Law Dictionary, p. 270 (6th ed. 1990). In the summer of 2001, the Messengers rented Lot 39. Lenz asserts that the use of the easement by the Messenger's tenants, is use for a commercial purpose.

15. Lenz's argument is persuasive. The rental of the property at lot 39 constitutes an activity for profit by the Messengers, thereby qualifying as an activity for a commercial purpose. The Easement Agreement at paragraphs four (4) through seven (7) clearly provide for the rights of the Lot 39 titleholders to utilize the easement for ingress and egress across the vacated alley between lots 25 and 26. The Messengers, as titleholders of Lot 39, may utilize the easement.

16. The Easement Agreement additionally allows the Lot 39 titleholders to maintain a pier at the end of the alley and to use 'the platform at the water's edge as Strohl has done in the past."

17. The language of the Easement Agreement clearly provides for the Lot 39 titleholder's use of the easement. When read in conjunction with paragraph five (5), the restriction of commercial use of the easement, a reasonable interpretation is found in Lenz's position, that tenants of the Messengers may not utilize the easement.

18. This preclusion does not prevent the Messenger's and the Messenger's guests, from using the Messenger's pier which is not located on the easement.

ADDITIONAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND MODIFIED FINAL ORDER SUBSEQUENT TO MESSENGER OBJECTIONS OF DECEMBER 27, 2002

19. Upon receipt of Claimant's Objections to Findings of Fact and Conclusions of Law, the record of proceeding was reviewed by the Administrative Law Judge and the following

[VOLUME 9, PAGE 121]

additional findings of fact, conclusions of law, and nonfinal order are entered.

20. Ind. Code 14-26-2 provides jurisdiction to the Natural Resources Commission, hereinafter "NRC", to resolve riparian disputes along public freshwater lakes in Indiana. Claimants seek resolution of the riparian rights dispute between themselves and the Lenzs. Related claims may also be considered by the NRC based upon the doctrine of primary jurisdiction. See Klann, et al. v. Wright Timber & Veneer Co., Inc., et al., 9 CADDNAR 76 (2002).

21. Under the doctrine of primary jurisdiction, "the judicial process may be suspended or await completion of the administrative process, and the agency may review matters ordinarily outside its subject matter jurisdiction, in order to develop a comprehensive record for ultimate judicial review. The doctrine of primary jurisdiction is prudential rather than jurisdictional. Austin Lakes Joint Venture v. Avon Util., 648 N.E.2d 641, 645 (Ind. 1995)." Id.

22. Based on the doctrine of primary jurisdiction, the NRC may consider the claims regarding use of the easement, as it relates to both the pier and platform-use at the former Strohl site, and use of the ingress-egress easement to the pier and platform.

23. Mr. Lenz concedes that the easement agreement allows for the Messenger's family members, the Messenger's guests, and non-paying invitees of the Messengers who occupy lot 39, to use the easement, specifically for ingress and egress across the vacated alley between lots 25 and 26, to maintain a pier at the end of the alley, and to use "the platform at the water's edge as Strohl has done in the past."

24. Testimony of Jean Messenger provides that the Strohl Deck as portrayed in Exhibit 1 and Exhibit 2, contains five, (5) set of posts extending into the lake and attached to the Strohl deck.

25. Evidence supports a finding that the Strohl pier, as shown in 1994 (Exhibit 2), and as shown in 2002 (Exhibit 9), are the same length, including five set of posts extending into the lake and attached to the Strohl deck. Lenz, in testimony, agreed that the Strohls had used 5 pier sections extending into the water in the past.

26. In 1976, 1989 and 1994, the Strohl pier included mooring poles located approximately nine, (9), feet eastward of the pier, as provided by testimony of Donald Messenger, and shown in Exhibits 1 and 2. The use of mooring poles nine, (9) feet eastward of the Strohl pier, are included in the riparian rights enjoyed by Strohl and conveyed to the Messengers, the Messenger's family members and guests, and non-paying invitees of the Messengers who occupy lot 39.

27. Testimony of Jean Messenger supports a finding that, but for repair to the platform by the Messengers, in 2001, Exhibits 9, 10 and 11 represent the same pier, at the same angle, as used by the Strohl's in the past and shown in Exhibit 1, 2 and 3. Lenz's testimony that the pier's pole sockets have been in the same location for forty years, supports this finding.

28. In 1996, Lenz testified he installed a boatlift on the west side of his pier, between his and the Strohl's pier. See Exhibit D. The lift and the Strohl's boat are seen in Exhibit 3. In 1999, the Lenz lift station was located next to the Lenz pier, without extension westward towards the Strohl pier.

29. Lenz testified that in 2001, he added a three, (3) foot extension on his pier, westward of the pier and adjacent to the boatlift. See Exhibit 8 and Exhibit 9.

30. Exhibit 8 also shows the placement of the entire Strohl platform is on the Messenger side of the easement. Jean Messenger testified that George indicated he was constructing a seawall, precluding placement of the platform on his portion of the easement.

31. The Messengers indicated that watercraft on the Strohl pier was moved to the Messenger side in order to diffuse argument with the Lenzs.

32. The record in Exhibits 7 and 3, support a determination that both the eastern portion of the Strohl pier, and the western portion of the Lenz pier, may be used simultaneously, if Lenz's three (3) foot extension to the boat lift is removed.

33. The Messengers' riparian rights to use the eastside of the Strohl pier are impeded with the Lenz's use of the three, (3) foot extension to the boatlift.

COURT OF APPEALS
MEMORANDUM DECISION - NOT FOR PUBLICATION
DECEMBER 28, 2004

Statement of Case

Appellants-Petitioners George C. Lenz, Jr. and Ann Lenz (collectively, "the Lenzes") appeal the dismissal of their petition for judicial review of an administrative agency action in favor of Appellees-Respondents Donald Messenger and Jean Messenger. [FOOTNOTE 1] We dismiss because the Lenzes' failure to comply with the Indiana Rules of Appellate Procedure precludes our review. Specifically, the Lenzes failed to articulate an issue for review, pursuant to Indiana Appellate Rule 46(A)(4).

Discussion and Decision

A hearing officer of the Indiana Natural Resources Commission (the "Commission") ordered the Lenzes to remove a three-foot portion of a lakeside dock they maintained. The Lenzes sought review from the Commission, alleging that the hearing officer lacked authority to issue its order. On May 22, 2003, the Commission upheld the decision of its hearing officer. App. 29.

On June 19, 2003, the Lenzes filed their Petition for Judicial Review of Administrative Final Order in the Steuben Superior Court, identifying the respondents as Donald and Jean Messenger, the Commission and the Indiana Attorney General. App. 27. The cause was transferred to the Steuben Circuit Court. On August 19, 2003, the trial court dismissed the claims against the Commission and the Indiana Attorney General. On August 20, 2003, the Lenzes filed a certified transcript of proceedings that occurred on September 19, 2002, together with some uncertified papers. App. 12.

On November 11, 2003, the trial court conducted a pre-trial conference, at which George Lenz ("George") appeared pro-se. The trial court advised George that the transcript of the administrative record was not filed within thirty days after the petition for judicial review, a jurisdictional requirement of Indiana Code Section 4-21.5-5-13. [FOOTNOTE 2] App. 11.

George argued to the trial court that he had complied with the requirements of Indiana Code Section 4-21.5-5-13, because the petition for judicial review contained the following language:

Specific Facts to demonstrate that the petitioner is entitled to obtain judicial review under section 2 of this chapter: (IC 4-21.5-7(b)(5))
...
(1) Petitioners have requested certified agency records for judicial review of the agency action in accordance with Indiana Code Section 4-21.5-5-13. A request for an extension of time is requested from the court, since the certifying agency can not supply the certified agency records to the petitioners in the required 30 days from this petition filing. Petitioners request the filing of the certified agency records be submitted August 31, 2003 to the court to allow the agency the requested time and for the petitioners to review the records.

(App. 28.)

In response, the trial court advised George that he could submit a bench brief addressing the trial court's jurisdiction, and that a subsequent bench brief on the merits of the underlying claim would be allowed "iff [the court] would grant that the court has jurisdiction." (App. 19.) On June 1, 2004, the Lenzes filed in the trial court their "Motion for Transfer[ing] Cause to the Supreme Court of Indiana. App. 8. They also filed a "Petition for Writ of Mandamus" in the Indiana Supreme Court. App. 8. [FOOTNOTE 3]

On November 18, 2003, the Lenzes filed their "Brief in Support of Continuing Jurisdiction by the Court." (App. 2). On June 8, 2004, the trial court dismissed the claim, concluding that it lacked jurisdiction because the Lenzes failed to timely file the administrative record or show good cause for an extension of time, in accordance with Indiana Cod Section 4-21.5-4.13. App. 4-6. The Lenzes now appeal.

Although we prefer to dispose of cases on their merits, where an appellant fails to substantially comply with the appellate rules, then dismissal of the appeal is warranted. Hughes v. King, 808 N.E. 2d 146, 147 (Ind. Ct. App. 2004). Indiana Appellate Rule 46(A)(4) provides: "Statement of Issues. This statement shall concisely and particularly describe each issue presented for review." However, the Lenzes have articulated no specific issue for review. Assuming that the Lenzes intended to present on appeal their contention argued in the trial court - that the trial court was required to treat the language in their petition as a timely motion for an extension of time for good cause - they do not present a corresponding coherent argument with citation to relevant authority to support that contention, as required by Indiana Appellate Rule 46(A)(8)(a). It is well settled that we will not consider an appellant's assertion on appeal when he or she has not presented a cognizable argument supported by authority and references to the record as required by the rules. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). We will not become an advocate for a party, and we will not address arguments that are either inappropriate, too poorly developed, or improperly expressed to be understood. Id. For the foregoing reasons, the appeal is dismissed.

Dismissed.

MATHIAS, J., concurs.
SULLIVAN, J., concurs in result.

FOOTNOTES:

1. The Messengers have not filed an appellee's brief.

2. Judicial review of an agency action is governed by the Administrative Orders and Procedures Act ("AOPA"), Ind. Code 4-21.5-5-1. Indiana Code Section 4-21.5-5-13(a)-(b) provides:
(a) Within thirty (30) days after the filing of the petition, or within further time allowed by the court or by other law, the petitioner shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action, consisting of:
(1) any agency documents expressing the agency action;
(2) other documents identified by the agency as having been considered by it before its action and used as a basis for its action; and
[(3)] any other material described in this article as the agency record for the type of agency action at issue, subject to this section.
(b) An extension of time in which to file the record shall be granted by the court for good cause shown. Inability to obtain the record from the responsible agency within the time permitted by this section is good cause. Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding.

3. On September 20, 2004, the Indiana Supreme Court dismissed the application for a writ.