CADDNAR


[CITE: Porter v. Swain, et al., 12 CADDNAR 1 (2009)]

 

[VOLUME 12, PAGE 1]

 

 

Cause #: 04-148W

Caption: Porter v. Swain, et al.

Administrative Law Judge: Jensen

Attorneys: Pro se (Porter); Armey (Olovich)

Date: January 29, 2009

 

 

FINAL ORDER

 

72. The parties’ respective riparian zones shall be determined utilizing the second of Nosek’s principles for such determination, which requires the identification of the point at which their respective real property boundaries intersect with the legally established shoreline of Webster Lake and the extension of straight lines lakeward of that point at a ninety degree (90o) angle to the shoreline.

 

73. Each party is individually responsible for professional surveying necessary to the identification of their real property boundaries and for identifying the location of the lines extended lakeward.  With respect to the Oloviches, the Mishler Survey, admitted in the instant proceeding as Exhibit C, which was prepared in 1992 contemporaneous with the Oloviches’ purchase of their real property, fulfills this requirement as to their real property boundaries.

 

74. To the extent conflict exists with respect to real property boundaries such dispute shall be resolved through the application of legal principles related to such disputes.

 

75. Each party to the instant proceeding is prohibited from placing of any structure, temporary or permanent, or attaching any appendage, including watercraft, to such structure in such a manner that the structure or appendage extends across the riparian lines established through the means set forth in Paragraphs 72 through 74.

 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

 

Procedural History

 

1.      Claimant, Stephen L. Porter (Porter), initiated the instant proceeding before the Natural Resources Commission (Commission) with the filing of his Petition for Administrative Review on August 3, 2004.

 

[VOLUME 12, PAGE 2]

 

2.      Within his Petition for Administrative Review, Porter alleges that he is the owner of real property located in Kosciusko County that fronts on a channel to Webster Lake, and that shares a boundary with real property owned by Peter and Angeline Olovich (collectively the Oloviches) that also fronts on the same channel to Webster Lake.  Further, Porter alleges that Rose Spencer (Spencer) is the owner of real property that shares the opposing property boundary of the Oloviches’ real property and fronts on the same channel to Webster Lake in Kosciusko County.

 

3.      Porter maintains that he and Spencer are entitled to exercise riparian rights associated with the channel but that the Oloviches have “placed their pier so that it extends into the riparian areas of Claimants’ properties and prevents the Claimants and Respondent Spencer from utilizing the riparian rights associated with their properties.”  Petition for Administrative Review, ¶ 5.

 

4.      A prehearing conference was conducted on October 5, 2004 with Porter appearing by counsel, Jack Birch.  The Oloviches appeared in person and by counsel, Michael Armey, and Spencer appeared on her own behalf.

 

5.      The parties reported at the prehearing conference that settlement was unlikely and preparations were commenced in anticipation of scheduling an administrative hearing.  The parties filed witness and exhibit lists and during a subsequent status conference reported that the majority of the evidence would likely be submitted through stipulations that would be supplemented with a short evidentiary presentation by all parties. 

 

6.      The stipulations were not filed by the parties as anticipated and upon inquiry by the administrative law judge the parties reported being involved in settlement negotiations.  Settlement negotiations continued from near April 2005 until July 18, 2006, when Stephen R. Snyder, substitute counsel for Porter, filed his Motion to Schedule Final Hearing.

 

7.      A final status conference and hearing date were scheduled for October 17, 2006 and October 19, 2008, respectively.

 

8.      Three (3) days before the scheduled final hearing and one (1) day before the final status conference Stephen R. Snyder, at Porter’s request, filed his Motion for Leave to Withdraw Appearance.   

 

9.      The administrative hearing was rescheduled for January 24, 2007, but was again continued based upon the January 23, 2007 representation by the parties that a tentative agreement had been reached. 

 

10.  Settlement discussions continued until October 9, 2007, at which time the Oloviches requested that the matter be rescheduled for hearing. 

 

 

11.  During the latter period of settlement discussions, Spencer sold her real property to Rick and Nikki Swain (collectively the Swains), who were joined as parties to the instant proceeding. Notice of Addition of Parties and Scheduling of Status Conference, issued October 9, 2007.

 

[VOLUME 12, PAGE 3]

 

12.  In order to facilitate the Swains preparation for the upcoming administrative hearing, Porter and the Oloviches were ordered to provide them with copies of all exhibits and the administrative law judge provided a complete copy of the case file.  At a subsequent status conference, the Swains indicated their intent to proceed without counsel and ability to be prepared for the administrative hearing when it was scheduled. 

 

13.  Ultimately, Porter retained new counsel, Jay L. Lavender, who was authorized to supplement Porter’s exhibit list and the administrative hearing was ultimately rescheduled for May 29, 2008. 

 

14.  The administrative hearing was commenced as scheduled on May 29, 2008, with Mr. Lavender beginning the presentation of Porter’s case in chief.  Shortly after commencing with the presentation of evidence Mr. Lavender’s lack of preparedness became apparent.  A recess to allow Mr. Lavender and Porter to confer resulted in a request for continuance and for bifurcation of the hearing.  In the interest of developing a full record upon which a fair and complete determination of the issues might ultimately be forthcoming, the continuance motion was reluctantly granted.

 

15.  Mr. Lavender, citing his inability to cooperate with Porter, filed his Motion for Leave to Withdraw Appearance, which was granted on June 13, 2008.

 

16.  The administrative hearing was reconvened on July 14, 2008, with Porter and the Swains appearing pro se.  Mr. Armey appeared on behalf of the Oloviches, who also appeared in person.

 

17.  The instant proceeding alleges a cause of action before the Commission pursuant to Indiana Code § 14-26-2-23 and 312 IAC 11-1-3, which authorizes riparian owners to seek dispute resolution between them relating to the “usage of an area over, along, or within a shoreline or waterline of a public freshwater lake”.

 

18.  Webster Lake, located in Kosciusko County, is a public freshwater lake.  312 IAC 11-2-17.

 

19.  Procedurally, this cause of action is governed by the Administrative Orders and Procedures Act, or AOPA, and administrative rules adopted by the Commission for the implementation of AOPA in proceedings within its jurisdiction.   Indiana Code § 4-21.5-3; 312 IAC 3.

 

20.  The Commission is the ultimate authority over matters involving Indiana Code §§ 14-26-2 et seq.  Indiana Code § 14-10-2-3.

 

[VOLUME 12, PAGE 4]

 

21.  The Commission possesses jurisdiction over the persons of the parties and the subject matter of this proceeding.   

 

 

Findings of Fact

 

22.  The parties to the instant proceeding, each own one of the Darrell Leap Tracts located on Webster Lake in Kosciusko County, Indiana.  More specifically, Porter is the owner of Tract #5, the Oloviches own Tract #4 and the Swains are the owners of Tract #3.  Claimant’s Exhibit F, Testimony of Porter.

 

23.  The parties’ respective tracts are located on and around the southern most end of a channel to Webster Lake.  Claimant’s Exhibits C, D and K.

 

24.  The Oloviches real property is situated in between the real property owned by Porter and the Swains, with Porter’s property lying to the west of the Oloviches and the Swains property lying east of the Oloviches.  Claimant’s Exhibits C, D and K.

 

25.  The Oloviches’ frontage on Webster Lake extends in a generally straight east and west direction.  Claimant’s Exhibits C and G.

 

26.  From the shared boundary between Porter and the Oloviches, Porter’s frontage on Webster Lake extends in a general westerly direction to the western edge of the channel and then extends to the north along the western edge of the channel.  Claimant’s Exhibits D and H.

 

27.  From the boundary shared by the Swains and the Oloviches, the Swains’ frontage on Webster Lake extends easterly to the eastern edge of the channel and then extends in a northerly direction along the eastern edge of the channel.  Claimant’s Exhibit F and K.

 

28.  Porter acquired title to his real property from Henry and Lois Deaton (collectively “the Deatons”) on November 13, 1993.  Claimant’s Exhibit H.  The Deatons’ predecessors in title were Alva Gene Kuhn and Margaret M. Kuhn (collectively “the Kuhns”), who transferred title to the Deatons on April 14, 1976. Claimant’s Exhibit E.

 

29.  The Oloviches acquired title to their real property on May 29, 1992 from Thelma M. Mishler and Gene R. Mishler (collectively “the Mishlers”), who owned the real property at least as early as April 1, 1975.  Claimant’s Exhibit G and J.

 

30.  The Swains acquired title to their real property from Spencer.  The available evidence does not reveal when or from whom Spencer acquired title; however, the available evidence does establish without controversy that the Swains’ real property was for a period of time, including April 1, 1975, owned by Ivan S. Thompson (Thompson).  Claimant’s Exhibit K.

 

[VOLUME 12, PAGE 5]

 

31.  On April 1, 1975, the Kuhns, the Mishlers and Thompson each filed with the Indiana Department of Natural Resources (DNR) an “Application for Approval to Alter Shore Line or Bed of a Public Fresh Water Lake” for the purpose of gaining authorization to construct a concrete seawall along the lakeward frontage of their respective tract within the Darrell Leap Subdivision.  Claimant’s Exhibits L, M and N.

 

32.  The DNR issued to Thompson, a “Permit or Approval to Alter the Shore Line or Bed of a Public Fresh Water Lake” on April 22, 1975, which authorized him to:

 

Construct a concrete seawall in conformance with attached sketch, with its lakeward face along the legally established shore line, joined to existing metal seawall on adjacent property to the north and joined to the authorized concrete seawall on the adjacent property to the west and located on the approximate 32 foot frontage of the property described below. 

 

The present waters edge is not necessarily the legally established shore line.  The shoreline is defined as that line formed on the bank or shore of Webster Lake by the water surface at its legally established average normal water level of 852.75 feet, elevation, sea level datum, or 12.75 feet, gage reading. A gage is located at the old Mill Race Dam on the southwest side of the lake.

 

Claimant’s Exhibit K.

  

33.  The DNR issued to the Kuhns, a “Permit or Approval to Alter the Shore Line or Bed of a Public Fresh Water Lake” on April 22, 1975, which authorized them to:

 

Construct a concrete seawall in conformance with attached sketch, with its lakeward face along the legally established shore line, joined to authorized concrete seawall on adjacent property to the east and located on the approximate 32 foot frontage of the property described below. 

 

The present waters edge is not necessarily the legally established shore line.  The shoreline is defined as that line formed on the bank or shore of Webster Lake by the water surface at its legally established average normal water level of 852.75 feet, elevation, sea level datum, or 12.75 feet, gage reading. A gage is located at the old Mill Race Dam on the southwest side of the lake.

 

Claimant’s Exhibit I.

 

34.  The DNR issued to the Mishlers, a “Permit or Approval to Alter the Shore Line or Bed of a Public Fresh Water Lake” on April 22, 1975, which authorized them to:

 

[VOLUME 12, PAGE 6]

 

Construct a concrete seawall in conformance with attached sketch, with its lakeward face along the legally established shore line, joined to the authorized concrete seawalls on the adjacent property to the east & west and located on the approximate 20 foot frontage of the property described below. 

 

The present waters edge is not necessarily the legally established shore line.  The shoreline is defined as that line formed on the bank or shore of Webster Lake by the water surface at its legally established average normal water level of 852.75 feet, elevation, sea level datum, or 12.75 feet, gage reading. A gage is located at the old Mill Race Dam on the southwest side of the lake.

 

Claimant’s Exhibit J.

 

35.  The concrete seawalls authorized by the DNR, upon the applications of Thompson, the Kuhns and the Mishlers, were constructed as a continuous seawall with a west facing section approximately 19.9 feet in length from north to south where by virtue of what appears to be a near ninety degree (90o) corner it transitions to a north facing section approximately 43.3 feet in length extending from east to west to meet with a second apparent ninety degree (90o) corner transitioning to the third, east facing section that extends approximately 21 feet from south to north.  Claimant’s Exhibits I, J & K.

 

36.  What is of particular import to the instant proceeding is the ownership interest of Porter and the Oloviches in the northern facing section of the seawall which forms the southern most end of the channel.

 

37.  According to a survey of the Darrell Leap Tracts, prepared by Charles M. Brower, dated June 22, 1972 (hereinafter referred to as the “Brower Survey”), Porter’s real property was described to include nine (9) feet “along the waters edge” on the southern most point of the channel or the location where the north facing concrete seawall now exists. Claimant’s Exhibit F.

 

38.  Despite the construction of the concrete seawall sometime after April 22, 1975, the Kuhns transferred real estate title to the Deatons in 1976 by Warranty Deed utilizing the legal description provided in the Brower Survey.  The Deatons, similarly, conveyed that same parcel of real property to Porter by Warranty Deed dated November 13, 1993 using that identical real estate description.  Claimant’s Exhibits E, F & H. 

 

39.  The Deatons commissioned a survey of their real property by Walker and Associates that was certified on November 10, 1993 (hereinafter referred to as the “Deaton Survey”), just three (3) days prior to their conveyance of the real property to Porter.  Within that survey, Jerry K. Walker, registered land surveyor, offered a real estate description indicating that the Deatons’, now Porter’s, real property was comprised of only 7.4 feet of land along the “north face of said concrete seawall.”  Claimant’s Exhibit D.

 

[VOLUME 12, PAGE 7]

 

40.  Despite the existence of a different real estate description based upon the Deaton Survey, the original real estate description, established by the Brower Survey, was used by the Deatons in the Warranty Deed conveying the real property to Porter.   Claimant’s Exhibit D and H. 

 

41.  The construction of the seawall on Porter’s property, which occurred in or near 1975, intervened between the establishment of the property description by virtue of the Brower Survey in 1972 that is contained within his deed and the property description developed by the Deaton Survey in 1993. 

 

42.  Porter assumes that his ownership of land extending 9 feet running easterly “along the waters edge” as reflected in his deed, presents the equivalent of his ownership of land running the easterly distance of 9 feet along the north facing channel seawall.  Porter’s assumption fails to consider the shoreline alterations associated with the seawall construction and further fails to address the discrepancy between the Brower Survey and the Deaton Survey.

 

43.  Similar to the original real estate description developed by the Brower Survey, in 1972 the Oloviches’ real property was described to contain land running east and west “along the waters edge” for a distance of seventeen (17) feet.  Claimant’s Exhibit F.

 

44.  The Oloviches acquired title to their real property through a Warranty Deed from the Mishlers on May 29, 1992 and at the time of their purchase, the real property was surveyed.  Claimant’s Exhibit G.  The survey, which was certified on May 21, 1992 (hereinafter referred to as the “Mishler Survey”), was prepared for the Mishlers by Jerry K. Walker, Registered Land Surveyor, Walker and Associates.  Claimant’s Exhibit C.

 

45.  The Mishler Survey reflects a revised real estate description reflecting that the parcel contains 20.75 feet running generally east “on and along the Northerly face of said seawall.”  Claimant’s Exhibit C.

 

46.  The Warranty Deed by which the Mishlers conveyed the real property to the Oloviches reflects that the original legal description established through the Brower Survey was modified in such a manner as to reflect the shoreline alterations associated with the construction of the seawall.  More specifically, the references to direction and distance “along the waters edge” that appeared in the original description were replaced with references to direction and distance “along the Northerly face” of the seawall.  Claimant’s Exhibit C and G.

 

47.  Porter did not commission an additional independent survey of his real estate. 

 

[VOLUME 12, PAGE 8]

 

48.  Photographic evidence was presented with respect to a pipe located a short distance east of the channel’s north-western seawall corner.  Claimant’s Exhibit P3, P10, P11 and P13.  Porter characterized this pipe as a survey marker as was acknowledged by Peter Olovich. 

 

49.  Nothing contained within the photographs allows for a determination of the distance between the north-western seawall corner and the pipe and witness testimony relating to that distance varies dependent upon the witness.  Sue Adams testified that the pipe was located approximately one (1) foot east of the pontoon boat that Porter used to maintain at that location.  Based upon Porter’s testimony that his pontoon boat was eight (8) feet wide, Adams’ placement of the pipe would be approximately nine (9) feet from the north-western corner of the channel’s seawall.  Adams’ testimony is consistent with Porter.  To the contrary, Peter Olovich testified that the pipe was only approximately seven (7) feet from the seawall’s north-west corner while Angeline Olovich testified that she was uncertain of the distance between the pipe and the north-west corner of the channel’s seawall.

 

50.  Despite all the testimony and evidence of the pipe’s existence, no one, including Porter who bears the burden of proof in this proceeding, testified to having actually measured the distance between the pipe and the seawall’s north-western corner.  Therefore, this evidence is not useful in identifying the landward boundary between the Oloviches and Porter and can therefore not be used for any purpose in identifying the riparian zones of these two parties.

 

51.  The shoreline associated with the north facing channel seawall is essentially a straight line.  Claimant’s Exhibits C, D, F, I, J and K.

 

52.  While the exact location of the shared boundaries between the Oloviches and Porter and the Oloviches and the Swains are not determinable by the evidence, it is not disputed that these boundaries are not perpendicular to the shoreline.  Id.

 

53.  The boundary lines shared by the Oloviches with the Swains and Porter meet with the north facing channel seawall in such a manner as to create obtuse angles on the Oloviches’ real property while creating acute angles on both the Swains’ and Porter’s real property.  Id.

 

54.  It is not disputed that Porter had, until 2004, maintained an eight (8) foot wide pontoon boat along the western edge of the channel seawall.  Testimony of Porter, Testimony of Sue Adams.   

 

55.  The fact that Porter has maintained an eight foot wide pontoon in that space is, alone, insufficient, to establish Porter’s right to the riparian zone previously occupied by that pontoon boat.

 

[VOLUME 12, PAGE 9]

 

56.  The available evidence reveals that the parties have historically determined their respective riparian zones by drawing lines lakeward at a ninety degree (90o) angle from the point at which their landward property lines intersect with the shoreline.  Claimant’s Exhibit P1-21.

 

57.  Watercraft moored by the parties and piers associated with those watercraft have historically been placed and maintained perpendicular to the north facing channel seawall.  Id.   

 

58.  The Swains and the Oloviches each testified that there exist no riparian rights disputes between them.

 

 

Conclusions of Law

 

59.  Each of the parties to the instant proceeding are “riparian owners” in so much as they are owners of land bound by Webster Lake.  312 IAC 11-2-19.

 

60.  The State of Indiana “holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana…”  Indiana Code § 14-26-2-5(d)(2).

 

61.  A riparian owner possesses certain “rights with respect to a public freshwater lake, but their rights are now statutory and must now be balanced with the public’s rights.”  Roberts v. Beachview Properties, LLC, Harbour Condominiums, and DNR, 10 CADDNAR 125, (2005), citing Lake of the Woods v. Ralston, 748 N.E.2d 396, (Ind. App. 2001).

 

62.  A qualifying temporary structure may be placed and maintained lakeward of the legally established shoreline without need to obtain a license issued by the Department of Natural Resources (DNR) pursuant to Indiana Code §§ 14-26-2.  In order to qualify, the temporary structure must meet each of the following criteria:

 

(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)   Not be a group pier.

(9)   Be placed by or with the acquiescence of a riparian owner.

 

312 IAC 11-3-1.

 

[VOLUME 12, PAGE 10]

 

63.  Certain of the criteria that must be met before a riparian owner may place a temporary pier reinforce the concept that the “opportunity to place a pier is subject to lateral limitations of the enjoyment of other riparians and to perpendicular limitation for the enjoyment of the public.”  Roberts, supra at 137.

 

64.  Indiana, through application by the Indiana Court of Appeals has adopted the methodologies set forth in Nosek v. Stryker, 309 N.W.2d 868, (Wis. App. 1981), for defining riparian rights and establishing riparian zones.  Bath v. Courts, 459 N.E.2d 72 (Ind. App. 3 Dist. 1984).

 

65.  Riparian zones are those areas “within which the parties enjoy riparian rights.”

 

66.  Nosek establishes that:

 

Where the course of the shore approximates a straight line and the onshore property divisions lines are at right angles with the shore, the boundaries are determined by simply extending the onshore property division lines into the lake…

 

Often, however, the boundary lines on land are not at right angles with the shore but approach the shore at obtuse or acute angles.  In such cases, it is appropriate to apportion the riparian tract by extending the onshore boundaries. (citations omitted) Instead, the division lines should be drawn in a straight line at a right angle to the shoreline without respect to the onshore boundaries…

 

A third method is used where the shoreline is irregular.  In that case, if it is impossible to draw lines at right angles to the shore to accomplish a just apportionment, then the boundary line should be run in such a way as to divide the total navigable waterfront in proportion to the length of the actual shorelines of each owner taken according to the general trend of the shore.

 

Nosek at 870 – 872.

 

67.  The shoreline at issue herein approximates a straight line with the landward property boundaries intersecting at acute and obtuse angles.

 

68.  Therefore, the riparian zones, as between the parties, should be determined by identifying the point at which their landward property boundaries intersect the legally established shoreline and extending a straight line lakeward at a ninety degree (90o) angle to the shoreline.

 

[VOLUME 12, PAGE 11]

 

69.  There is insufficient evidence contained within the record to conclusively determine the point at which the landward boundary shared by the Oloviches and Porter or the Oloviches with the Swains intersect the legally established shoreline of Webster Lake. 

 

70.  “A complete resolution of issues may require a professional survey and the application of legal principles to precisely delineate the boundaries of riparian rights lakeward of the shoreline.”  Roberts, supra at 137.

 

71.  The issues presented in the instant proceeding relate solely to infringements upon the access to Webster Lake by the adjacent riparian owners who are parties to the instant proceeding.  This decision shall be construed narrowly to address only the issues between these parties.

 

 

[Note: For editing purposes, the “Final Order” listed in Paragraphs 72 through 74, as originally issued by the Administrative Law Judge, have been relocated to the beginning of this decision in order to be consistent with CADDNAR format.]