CADDNAR

[CITE: Pipp v. Spitler, et al., 11 CADDNAR 39 (2007)]

 

[VOLUME 11, PAGE 39]

 

Cause #: 05-098W

Caption: Pipp v. Spitler, et al.

Administrative Law Judge: Lucas

Attorneys: Snyder; Hagan; Helm; Hoffman; Green; Thieman; Miner; Knotek

Date: February 12, 2007

 

 

FINAL ORDER

 

(1) Except as provided in paragraph (3) of this Order and as anticipated by Finding 66, a person must not construct or maintain a pier or other improvement or moor a boat within the “channel”, as the term is defined and delineated in the Findings.  The effectiveness of this paragraph is deferred until April 1, 2007 to allow a reasonable period for the removal from the channel of any pier, improvement or mooring.

 

(2) The “Joint Stipulation of Claimants Williams J. Pipp and Terry Anne Pipp and Respondents Ronald A. Mason and Melanie J. Mason” is approved under the conditions and terms described in the Findings.

 

(3) If the Kosciusko County Commissioners vacate or otherwise terminate the existence of the “subject public way”, as the term is defined and delineated in the Findings, the “Joint Stipulation of Claimants William J. Pipp and Terry Anne Pipp and Respondents Ronald A. Mason and Melanie J. Mason” governs the allocation of riparian rights within the channel.

 

(4) The Natural Resources Commission retains jurisdiction to resolve any dispute concerning interpretation of this Order and shall conduct a proceeding to resolve the dispute following a written petition by a party that has not been previously dismissed or defaulted, by the Board of County Commissioners of Kosciusko County, or by the Department of Natural Resources.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Statement of the Case, Defaults, Dismissals and Jurisdiction

 

1.      William J. Pipp and Terry Anne Pipp (collectively the “Pipps”) filed a “Petition for Administrative Review” with the Natural Resources Commission (the “Commission”) on May 26, 2005.  The petition sought the resolution of a dispute as to riparian rights for the placement of temporary piers and the docking of boats on Lake Wawasee in Kosciusko County, Indiana.

 

 

2.      This proceeding is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”).  The Commission has adopted rules at 312 IAC 3-1 to assist with its implementation of AOPA.

 

[VOLUME 11, PAGE 40]

 

3.      Lake WawaseeA is a “public freshwater lake” as the term is defined at IC 14-26-2-3.  Lake Wawasee is governed by IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”).

 

4.      The Lakes Preservation Act is based upon statutory enactments that became effective in March 1947.  Acts 1947, c. 181 and Acts 1947, c. 301.

 

5.      The Commission has adopted rules at 312 IAC 11 to assist with implementation of its responsibilities under the Lakes Preservation Act.

 

6.      A dispute concerning the exercise of riparian rights within a public freshwater lake is subject to administrative review by the Commission as the “ultimate authority” for the Department of Natural Resources (the “DNR”) under AOPA.  IC 14-10-2-3 and IC 14-26-2-23.

 

7.      The Commission has jurisdiction over the subject matter of this proceeding.

 

8.      The Pipps are the owners of real estate adjacent to Lake Wawasee which they described in the “Petition for Administrative Review” as “Part of Lot 1, Marsh Addition to South Park” (the “Pipp property”) in Kosciusko County, Indiana.  They maintain a temporary pier and dock boats at the pier in Lake Wawasee that is adjacent to the Pipp property.  See, also, “Joint Stipulation of Claimants Williams J. Pipp and Terry Anne Pipp and Respondents Ronald A. Mason and Melanie J. Mason” [Exhibit Stip. 1].

 

9.      In the “Petition for Administrative Review”, the Pipps alleged the existence of “a public way which has been utilized by non-waterfront owners, believed to be organized by Jeffery L. Spitler” (“Spitler”).  The usage by Spitler and others included the placement of a pier within the public way, if the public way were extended into Lake Wawasee.  At the time of filing the “Petition for Administrative Review”, the identities of other non-waterfront owners and some other potentially interested parties were unknown.

 

10.  The public way connects Waco Drive and Lake Wawasee and was depicted in Exhibit “A” that was attached to the “Petition for Administrative Review”.  The public way separates parcels depicted on Exhibit “A” as “11136” and “11140”.  These depictions refer, respectively, to street addresses 11136 North Ideal Beach Drive and 11140 North Ideal Beach Drive, Syracuse, Indiana 46567.  The public way is 24 feet wide and is located in an unincorporated area of Kosciusko County.  This public way is subsequently described here as the “subject public way”. 

 

[VOLUME 11, PAGE 41]

 

11.  To the extent the subject public way is within the jurisdiction and control of a governmental entity, as a street or roadway, it is within the jurisdiction of the Board of County Commissioners of Kosciusko County (the “Kosciusko County Commissioners”).  The Commission has jurisdiction under the Lakes Preservation Act and 312 IAC 11, but the Commission’s jurisdiction does not extend outside the “shoreline or water line” (under IC 14-26-2-4) of Lake Wawasee.B.

 

12.  The Commission caused the appointment of an administrative law judge who served a “Notice of Prehearing Conference” upon the Pipps and upon Spitler.

 

13.  Prudence Twigg (“Twigg”) filed a “Motion to Intervene” on July 13, 2006 in which she alleged usage of the same pier as used by Spitler within the subject public way if extended into Lake Wawasee.

 

14.  Following a continuance of the date originally set, the prehearing conference was held as rescheduled on July 14, 2005 in Syracuse, Indiana.  During the prehearing, Twigg’s “Motion to Intervene” was granted without objection.  In addition, Catherine Popp Hoffman orally moved to intervene on the basis she was a riparian owner of property located near the subject public way, and her motion was granted without objection.

 

15.  During the July 14 prehearing, the parties agreed there likely were other persons who should be notified and joined as parties needed for just adjudication.  Spitler and Twigg agreed to identify other persons, who might use the pier within the subject public way as extended into Lake Wawasee, and within 30 days to notify the administrative law judge of their names and addresses.  The Pipps agreed to provide the administrative law judge with a draft notice by publication to be directed to persons who might claim an interest in the outcome of the proceeding but who could not, with due diligence, be identified or located.  These parties agreed the DNR and the Kosciusko County Commissioners were not needed for just adjudication.  The administrative law judge did, however, direct them to serve copies of pleadings and documents upon the DNR’s attorney, in the event the DNR subsequently determined it wished to seek intervention.

 

[VOLUME 11, PAGE 42]

 

16.  By email filed and served on July 23, 2006, the Pipps tendered a draft notice by publication.  No objection was filed to the form or content of the draft notice.  On July 28, the administrative law judge gave approval to the Pipps to cause its publication in a newspaper of general circulation in Kosciusko County.

 

17.  The notice by publication was published on August 18, August 25 and September 1, 2005 in the Warsaw Times-Union, a newspaper of general circulation published in Warsaw, Kosciusko County, Indiana.  The Pipps caused a copy of the proof of publication to be filed and served on September 14, 2005.

 

18.  On September 9, 2005, Spitler and Twigg filed and served their “Report to the Court” in which they provided names and addresses of property owners of Ideal Beach First Addition, together with other property owners in the immediate area of the subject public way, so that they could be notified of this proceeding.

 

19.  A telephone status conference was conducted as scheduled on September 14, 2005.  The parties present at the conference agreed, and the administrative law judge then found and ordered, that the following persons identified in the “Report to the Court” were persons needed for just adjudication: Robert S. Pojeta; Erin E. Hagar; Darrell W. Bowman; Elizabeth Bowman; Pat Richardson; Larry L. Smith; Linda L. Smith; Gerald W. Paulausky, also known as Jerry W. Paulausky; B. William Gingrich; Agnes Clyde Gingrich Trust; Carl A. Grummann; Ronald A. Mason; Melanie J. Mason; HB Financial, LLC; Toni Van Gompel; Nancy C. Olivares; Jose F. Olivares Trust, Jose F. Olivares, Trustee; Sylvia J. Gargett Living Trust, Sylvia Gargett Trustee; Donald J. Curry; and, Amy L. Curry.  With this finding and order, the determination was made that these persons would be notified of the proceeding, advised they had been added as parties needed for just adjudication, notified of the scheduling of the next prehearing conference, and informed that if they failed to appear and participate, they might be defaulted and the relief sought granted in their absences.

 

20.  A “Notice of Prehearing Conference” was entered on September 30 by which a prehearing conference was scheduled for November 9, 2005 in Syracuse.  The “Notice of Prehearing Conference” was served on all parties or their attorneys.  For the persons added as parties needed for just adjudication under the Finding 19, service was made by certified mail with return receipt requested, and these persons were also provided with copies of all pleadings and documents previously filed or entered in the proceeding.

 

[VOLUME 11, PAGE 43]

 

21.  A prehearing conference was conducted as scheduled in Syracuse on November 9, 2005.  Present in person or by their attorney were the following parties: the Pipps, Spitler, Twigg, Catherine Popp Hoffman, HB Financial LLC, Donald Curry, Ronald A. Mason, Melanie J. Mason, Larry Smith, Linda Smith, and Patricia Richardson.  Ronald A. Mason and Melanie J. Mason are referred to collectively as the “Masons”.  Catherine Popp Hoffman is the manager of HB Financial, LLC, and for convenience these two persons are collectively referred to as “Hoffman”.  The DNR was also present by its attorney.  The Pipps expressed an intention to move to default the legal claims of persons, who without apparent good cause, had failed to appear or to participate in the prehearing conference.

 

22.  On November 10, 2005, the Pipps filed their “Verified Application for Default” with respect to the following persons: Nancy C. Olivares, Jose F. Olivares Trust, Erin E. Hagar, Gerald W. Paulausky, B. William Gingrich, Agnes Clyde Gingrich Trust, Carl A. Grummann, and Toni VanGompel.

 

23.  On November 15, 2005, the administrative law judge made an “Entry Regarding Verified Application for Default of Jose F. Olivares, Trustee for the Jose F. Olivares Trust, and Regarding Possible Affirmative Defenses by the Jose F. Olivares Trust” in which sufficient excuse was found for the failure by Jose F. Olivares to attend the prehearing conference.  As a consequence, a notice of proposed default was not entered at this time against Jose F. Olivares.

 

24.  On November 16, 2005, the administrative law judge entered a “Notice of Proposed Defaults Directed to Nancy C. Olivares, Erin E. Hagar, Gerald W. Paulausky, B. William Gingrich, the Agnes Clyde Gingrich Trust, Carl A. Grummann and Toni Van Gompel”.

 

25.  On November 22, Toni Van Gompel filed correspondence in which she disclaimed any interest in the disposition of this proceeding.  On November 29, 2005, the administrative law judge entered a “Vacation of Proposed Default Directed to Toni Van Gompel and Notice of Proposed Dismissal as to Toni Van Gompel”.

 

26.  On November 23, 2005, a “Motion for Substitution of Parties” was filed for Pat J. Richardson and Patricia L. Richardson, husband and wife, (collectively the “Richardsons”) for property previously titled individually to Pat. J. Richardson but which had subsequently been titled jointly to the Richardsons.  On November 25, 2005, James Thieman and Tonya Thieman (collectively the “Thiemans”) filed their motion to intervene in substitution for Darrel Bowman and Elizabeth Bowman because the Thiemans had purchased the property formerly titled to Darrell Bowman and Elizabeth Bowman.  Based upon these motions, the administrative law judge made an “Entry with Respect to the Addition of Patricia L. Richardson, as a Party Respondent and with Respect to the Substitution of James Theiman and Tonya Thieman for Darrell Bowman and Elizabeth Bowman as Party Respondents” on December 2, 2005.

 

[VOLUME 11, PAGE 44]

 

27.  On December 5, 2005, a “Vacation of Proposed Default Directed to Nancy C. Olivares” was entered.

 

 

28.  On December 6, 2005, a “Final Order of Default Directed to Erin E. Hagar, Gerald W. Paulausky, B. William Gingrich, the Agnes Clyde Gingrich Trust and Carl A. Grummann” was entered.  This final order indicated that the administrative law judge would conduct any further action needed to complete this proceeding without the participation of these parties.  It provided that person who wished to seek judicial review of the final order must file a petition for judicial review within 30 days in an appropriate court and must also serve notice to the Commission under AOPA and under 312 IAC 3-1-18.  No such petition or notice has been served.  Any interests of Erin E. Hagar, Gerald W. Paulausky, B. William Gingrich, the Agnes Clyde Gingrich Trust and Carl A. Grummann in this proceeding were fully adjudicated in the December 6, 2005 final order.

 

29.  On December 16, 2005, a “Final Order of Dismissal as to Toni Van Gompel” was entered based primarily on her correspondence of November 22, 2005 in which she disclaimed any interest in the proceeding.  The finding was made that Toni Van Gompel did not own property at 6949 Waco Drive, Syracuse, Indiana nor did she have a proprietary or other interest that would cause her properly to be a party to this proceeding.  A final order of dismissal was made with respect to Toni Van Gompel and the dismissal was made with prejudice.  After issuing this dismissal order, the administrative law judge would conduct any further action without the participation of Toni Van Gompel.  It provided that person who wished to seek judicial review of the final order must file a petition for judicial review within 30 days in an appropriate court and must also serve notice to the Commission under AOPA and under 312 IAC 3-1-18.  No such petition or notice has been served.  Any interests of Toni Van Gompel in this proceeding were fully adjudicated in the December 16, 2005 final order.

 

30.  On December 19, 2005, an “Order to Modify Identification of Party Respondents and to Modify Caption” was entered by which Patricia L. Richardson was added as a Party Respondent.  In addition, James Thieman and Tonya Thieman were substituted for Darrel Bowman and Elizabeth Bowman as Party Respondents.

 

31.  On January 18, 2006, the administrative law judge made an “Entry with Respect to Consideration of Joinder, as a Party, of Board of County Commissioners of Kosciusko County”.  This entry was precipitated by the “Notice of Claim by Respondent Jose F. Olivares, Trustee” in which Jose Olivares alleged, in part, the Kosciusko County Commissioners were “necessary parties for the purpose of defending the rights of the sovereign in the public way and thereafter uphold the rights and appurtenances of the non-waterfront owners.”  The other parties were provided until February 20, 2006 to respond either in support of or opposition to the joinder of the Kosciusko County Commissioners.

 

[VOLUME 11, PAGE 45]

 

32.  On January 24, the Pipps indicated they had no objection to joining the Kosciusko County Commissioners.  On January 25, the Masons indicated they had no objection to joining the Kosciusko County Commissioners.  On February 16, 2006, Twigg and Spitler indicated they had no objection to joining the Kosciusko County Commissioners.

 

33.  An “Order Granting Request to Join, as a Party, the Board of Commissioners of Koscisuko County” was entered on February 21.  On February 23, a “Notice to Board of Commissioners of Kosciusko County” was entered to advise the Kosciusko  County Commissioners of this proceeding.  The notice was served on February 27, 2006.

 

34.  The “Response of Board of Commissioners of Kosciusko County” was filed on March 16, 2006 and stated in part:

 

(1) Kosciusko County does not currently maintain the [subject public way].

 

(2) Kosciusko County does not assert jurisdiction over claims regarding riparian use at the interface of the [subject public way] with the shoreline of Lake Wawasee.

 

(3) Use of the [subject public way] by members of the public for appropriate purposes is not disputed by Kosciusko County, nor is it regulated or administered; Kosciusko County understands that presently some neighbors, including the two immediately adjacent neighbors, as well as others, may be utilizing the 24-foot wide [subject public way], along with local pier companies which may utilize this way as a means of lake access seasonally, along with the local fire department which maintains a “dry hydrant” associated with this [subject public way].

 

(4) Kosciusko County has no objection to the current identified uses in the preceding paragraph [of this Finding].

 

(5) Kosciusko County does not wish to participate in this dispute and litigation, unless it interferes with the previously identified public uses.

 

(6) Kosciusko County does not presently show this [subject public way] as part of its road system maintenance map, and this way has not been accepted for county maintenance and is not expected to be so accepted in the future. 

 

(7) Kosciusko County reserves the right to accept this [subject public way] into county maintenance upon proper petition under current rules for such proceedings, and future amendments thereto.

 

(8) Kosciusko County therefore requests that it not be required to participate in this litigation, disclaims any participation in disputes relating to lake access and use, other than those identified above in paragraph 3 [of this Finding], and understands that the dispute is over maintenance of the pier in the waters of Lake Wawasee. Kosciusko County therefore requests that it be dismissed from this cause of action.

 

[VOLUME 11, PAGE 46]

 

35.  On May 30, 2006, the administrative law judge entered a “Notice of Proposed Dismissal of the Board of Commissioners of Kosciusko County”, under stated terms, with an opportunity to the parties to file objections to those terms.  No objections were filed to the notice.

 

36.  On June 23, 2006, the administrative law entered a “Final Order of Dismissal of the Board of Commissioners of Kosciusko County”.   The dismissal was approved on the basis that the Kosciusko County Commissioners had disclaimed any interest in a disposition of riparian or other property rights along the shoreline or water line of Lake Wawasee or within the waters of Lake Wawasee where adjacent to, or in the vicinity of, the subject public way.  The dismissal provided that the disclaimer did not apply to the subject public way landward of the shoreline or water line.

 

37.  The final prehearing conference was held in Columbia City, Indiana on July 6.  During the prehearing conference, the Pipps reported tht Robert S. Pojeta no longer owned the property that caused him to be named as a party.  Ownership of the property had been transferred to Hoffman.  Also, the property that has caused the Sulvia Gargett Living Trust to be named as a party had been transferred to Pat J. Richardson and Patricia L. Richardson.   During the prehearing conference, the Pipps, the Masons and Hoffman orally moved to default Donald J. Curry, Amy L. Curry, Nancy C. Olivares, and Jose F. Olivares Trust, Jose F. Olivares, Trustee.  As memorialized by a “Report of Final Prehearing Conference including Notice of Proposed Defaults” entered on July 7, 2006, the administrative law judge issued a notice of proposed default as to these persons.

 

38.  On July 25, 2005, a “Final Order of Default Directed to Donald J. Curry; Amy L. Curry; Nancy C. Olivares; and, Jose F. Olivares Trust, Jose F. Olivares, Trustee” was entered.  This final order indicated that the administrative law judge would conduct any further action needed to complete this proceeding without the participation of these parties.  It provided that a person who wished to seek judicial review of the final order must file a petition for judicial review within 30 days in an appropriate court and must also serve notice to the Commission under AOPA and under 312 IAC 3-1-18.  No such petition or notice has been served.  Any interests of in this proceeding of Donald J. Curry; Amy L. Curry; Nancy C. Olivares; and, Jose F. Olivares Trust, Jose F. Olivares, Trustee were fully adjudicated in the July 25, 2006 final order.

 

39.  The Commission has jurisdiction over all persons needed for just adjudication. 

 

[VOLUME 11, PAGE 47]

 

40.  A full and fair opportunity was provided to interested persons to participate in the proceeding, and a hearing was conducted as scheduled at Columbia City, Indiana on July 11, 2006.

 

Geographic Boundaries of the Channel

 

41.  In anticipation of the public hearing, the parties stipulated that the historical usage of the subject public way, as extended into Lake Wawasee, is perpendicular to the shoreline or water line.  This usage is generally distinguished from any other angle that public usage might be exercised as described from the shoreline and into the Lake.  In the stipulation, this usage was specifically distinguished from the angle that would be formed by an extension of the boundaries of the subject public way in a straight line beyond their intersections with the shoreline or water line and into Lake Wawasee.  The area of this usage within Lake Wawasee is referenced as the “channel”.

 

42.  Prior to the public hearing, the parties’ stipulation concerning the channel was approved by the administrative law judge.  Evidence received at hearing was consistent with the stipulation, and its approval is affirmed.

 

43.  In support of clarity and durability, the following specifications shall be applied in determining the geographic boundaries of the channel:  The boundaries of the subject public way are formed by two lines that are approximately 24 feet apart.  The channel commences with the two points that are established by these lines at their respective intersections with the shoreline or water line of Lake Wawasee.  Based upon a straight line formed between the two points, a perpendicular line from each of the points is extended into Lake Wawasee.  The resulting two lines are parallel to each other and form the boundaries of the channel.  These two lines terminate 200 feet from the shoreline or water line. 

 

Usage of the Channel

 

44.  In determining the lawful usage of adjacent waters, the purpose of a terrestrial access to those waters must be determined.  An easement may provide a dominant estate with the opportunity to construct a pier or other improvement if the servient estate was intended to be so burdened.  A grant of authority may be express, implied or acquired through prescription.  Where the purpose of a grant is ambiguous, there “must be an inquiry into the surrounding facts and circumstances to determine” its purpose.  A grant providing “access to the lake” is sufficiently ambiguous to require inquiry into intent.  Klotz v. Horn, 558 N.E.2d 1096, 1099 (Ind. 1990), citing also, Brown, et al. v. Heidersbach et al. (1977), 172 Ind.App. 434, 360 N.E.2d 614.

 

[VOLUME 11, PAGE 48]

 

45.  The current status of the law was summarized in Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App. 2005):  

Easements burdening land with riparian rights attached do no necessarily provide the easement holder use of these riparian rights.  Brown v. Heidersbach, 172 Ind. App. 434, 441, 360 N.E.2d 614, 619-20 (1977).  Instead, we first look to the express language of the easement.  Klotz v. Horn, 558 N.E.2d 1096, 1097-98 (Ind. 1990).  “An instrument creating an easement must be construed according to the intention of the parties, as ascertained from all facts and circumstances, and from an examination of all its material parts.”  Brown, 172 Ind.App. at 441, 360 N.E.2d at 620.  Courts may resort to extrinsic evidence to ascertain the intent of the grantors creating the easement only where the language establishing the easement is ambiguous.  Gunderson v. Rondenelli, 677 N.E.2d 601, 603 (Ind.Ct.App. 1997) (citing Klotz, 558 N.E.2d at 1098).  A deed is ambiguous if it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.  See Abbey Villas Dev. Corp. v. Site Contractors, Inc., 716 N.E.2d 91, 100 (Ind. Ct.App. 1999), trans. denied.

 

46.  In order for the channel to be used lawfully for the placement of piers or other improvements, a purpose of the subject public way must have been to provide for the placement of improvements by an express, implied or prescriptive authorization.

 

47.  Although several of the parties asserted the benefits of a prescriptive easement early in this proceeding, most or all of these assertions were specifically withdrawn before the hearing.  No evidence was presented to support the existence of a prescriptive easement in favor of any party.

 

48.  To support the placement of piers or other improvements, the subject public way must make a grant of authority that is either express or implied.  The evidence is to the contrary.

 

49.  The preponderance of the evidence is that the subject public way has existed perhaps since 1879.  Claimant’s Exhibit H-1.  The subject public way is reflected in documents from 1889 (Claimant’s Exhibit P-3); 1890 (Claimant’s Exhibit P-4); 1914 (Claimant’s Exhibit H-2) and subsequently.  The subject public way is not a creature of modern lakeside or lake-vicinity development but rather a persisting roadway from an era when the local community was predominantly agrarian.

 

50.  A reasonable inference is that the original purpose of the subject public way was to avail use of Lake Wawasee itself as a public highway, implementing a perspective that Lake Wawasee was a navigable watercourse.

 

51.  The landmark decision in Indiana with respect to determining and applying navigability is State v. Kivett, 228 Ind. 629, 95 N.E.2d 148 (1950).  The Indiana Supreme Court stated that the test for determining navigability is whether a river or lake “was available and susceptible for navigation according to the general rules of river transportation at the time Indiana was admitted to the Union” in 1816.

 

[VOLUME 11, PAGE 49]

 

52.  The evidence in this proceeding does not disclose whether Lake Wawasee meets the Kivett standard for determining navigability.  Authorities cited by the parties are insufficient to make a determination whether the Kivett standard was met.  Yet a determination of the navigability of Lake Wawasee is here unnecessary.

 

53.  The Indiana Court of Appeals was invited to determine whether Nyona Lake in Fulton County was legally navigable in Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984).  Based upon the Lakes Preservation Act, however, the court found “our statutory law renders such a determination unnecessary.”  Based upon the Lakes Preservation Act, the court went on to apply a statute, which on its face governed navigable waters, to Lake Nyona.  Bath at 75.  Very recently, the Court of Appeals of Indiana again construed the Lakes Preservation Act and applied principles of navigable waters law to resolve a riparian dispute on Clear Lake, a “public freshwater lake” in Steuben County.  Parkison v. McCue cited previously.

 

54.  Regardless of whether Lake Wawasee is navigable, it is a “public freshwater lake” that in 1947 became subject to the Lakes Preservation Act.  Principles governing boating on a navigable watercourse also apply to a public freshwater lake.  Illustrative is IC 14-26-2-5 and particularly IC 14-26-2-5(b)(2).

 

55.  The preponderance of the evidence is that the primary usage is consistent with the channel serving as a navigation corridor extending from the subject public way.  Illustrative is seasonal usage for the commercial transport by boat of materials for the placement of piers at properties near the subject public way.  In addition, the site is occasionally used as lake access for small recreational boats.  Recently, the channel has also served as an access corridor to a dry hydrant maintained by the local fire department on the adjacent property of the Masons.  These purposes are consistent with the public rights described in the Lakes Preservation Act at IC 14-26-2-5.

 

56.  To hold otherwise would be to conclude the intent for the subject public way was the creation of a dead-end street.  Ordinarily, a roadway that connects to a public freshwater lake is minimally intended to provide ingress and egress to and from the lake.  Under proper facts, an intent may be documented that roadway was intended to provide more than ingress and egress.  Abbs v. Town of Syracuse, 655 N.E.2d 114, 116 (Ind. App. 1995) citing Klotz v. Horn, cited previously, and Metalf v. Houk, 644 N.E.2d 597 (Ind. App. 1994). 

 

57.  There is no evidence to support the proposition that the subject public way was intended as a dead-end street.  The history of usage is consistent with the proposition that the function of the subject public was to provide ingress and egress to Lake Wawasee, and the geographic boundaries of the channel are an appropriate lakeward extension for ingress and egress.

 

[VOLUME 11, PAGE 50]

 

58.  On the other hand, use of the channel for the placement of temporary piers or other improvements, or for the mooring of boats, is inconsistent with the likely intent of the subject public way and with the Lakes Preservation Act.  The narrow channel makes it more like a water alley than a water boulevard.C.  The placement of structures within the channel would pose navigational challenges and hazards.

 

59.  Spitler and Twigg are specifically found to have no legal or equitable rights beyond those of the general public to utilize the channel.

 

 

60.  Neither does the record support the proposition that another person has legal authority to place a pier or other improvement within the channel.

 

61.  The channel should properly be maintained as a navigation corridor.  The construction of temporary piers or improvements and the mooring of boats within the channel should be prohibited.

 

62.  During the hearing, a “Joint Stipulation of Claimants Williams J. Pipp and Terry Anne Pipp and Respondents Ronald A. Mason and Melanie J. Mason” [Exhibit Stip. 1] was entered that provides in substantive part as follows:

The following parties stipulate, for purposes of this trial and any future proceedings as between them, all as follows:

 

1. William J. Pipp and Terry Anne Pipp (hereinafter “Pipps”) are the owners of Lot 1 in Marsh Addition to South Park, Kociusko County, Indiana.

 

2. Ronald A. Mason and Melanie J. Mason (hereinafter “Masons”) are the owners of Lot 1 and part of Lot 2 in the plat of Ketring and Blanchard’s Ideal Beach 1897, Kosciusko County, Indiana.

 

3. Lying between the Pipps’ described property and the Masons’ described property is a 24-foot area labeled on various plats as “24 foot W”, “public road”, or “road”.

 

4. Pipps and Masons believe they are the only persons who may have a proper claim to the ownership of the underlying fee title for that 24-foot strip.

 

5. The various plats depict the 24-foot strip, but no plat distinctly describes the strip as being within the perimeter of the plat; under that circumstance, Pipps and Masons are the only persons within plats to which this road might have been properly appended, and it would have been appended to one of the other of their plats by reason of chronology, prior to other later plats within the area.

 

[VOLUME 11, PAGE 51]

 

6. In order to resolve and remove any dispute between Pipps and Masons with regard to the ownership of the underlying title, the Pipps and Masons now stipulate that:

a. On the shoreward part of the 24-foot strip, in all places where it abuts and separates the property of Pipps from the property of Masons, the parties agree that they each own one-half of 12 feet adjacent to their respective lots and if the strip, by survey, is larger than 24 feet, that they each own 50%.

b. On the lakeward side, with regard to riparian uses, they stipulate that all riparian uses will be determined by a perpendicular extension lakeward from the point on the shore where the right-of-way line and the respective lot lines of Pipps and Masons intersect.  In other words, at the southeast corner of the Pipp lot, where it intersects the water, a perpendicular to the shoreline will determine the riparian uses of the 24-foot strip; at the northeast corner of the Masons’ property, where it meets the shoreline, a perpendicular line determines the riparian uses; and Pipps and Masons further stipulate that of the approximately 24 feet of riparian use, Pipps are the owners of the north 10 feet thereof underlying the waters of Wawasee, and Masons are the owners of the approximate 14 feet thereof, underlying the waters of Wawasee.

 

7. Pipps and Masons further stipulate that no other person owns the riparian uses related to the 24-foot strip.

 

8. Pipps and Masons further acknowledged that the 24-foot strip is currently utilized, in part, by the local fire department for access to a dry hydrant and by two local pier companies for spring and fall access to the waters of the lake, and that there are no objections to those uses.

 

63.  As an allocation of interests between the Pipps and the Masons, their successors and assignees, the stipulation contained in Finding 62 should be approved and adjudicated.  Excepted from this Commission approval and adjudication should be any matter landward of the shoreline or water line and over which the Kosciusko County Commissioners has jurisdiction. 

 

64.  The viability of the channel as a navigation corridor is dependent on the existence of subject public way.

 

65.  If the Kosciusko County Commissioners were to vacate the subject public way or to otherwise terminate its legal existence, the allocation of riparian interests lakeward of the shoreline or water line should be as set forth in the stipulation contained in Finding 62.

 

66.  The Masons and their predecessors in interest have maintained a portion of their pier facilities, specifically an L-shaped extension of pier encompassing a boat lift, on the north side (directions are nominal, based upon an assumption that the shoreline or water line is approximately north-south in direction] of their pier, for a time span exceeding twelve years.  As to that usage, it will be modified as follows:

 

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A. In order to provide greater facility of navigation of the public waters of the 24-foot strip, the Masons will relocate their L-shaped pier extension, and their boat lift, lakeward or eastward a distance of 20 farther from its present location.

B. The relocation of the L-shaped extension and boat lift shall not extend into the public waters of the 24-foot strip, extended, greater than six feet.

C. If it is necessary or convenient to do so, the Masons may add additional sections to their primary pier, not to exceed distances permitted by Indiana statute or Commission rules, in order to accommodate the lakeward relocation of the L-shaped extension and boat lift.

D. The L-shaped extension which is the subject of this order is depicted in several of the exhibits.

E. The main pier of the Masons’ pier facilities shall remain aligned as presently located, and as determined by the pier sockets presently installed, or any extension of them lakeward (eastward).