[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
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
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.
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
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
10. The public way connects
[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
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
14. Following a
continuance of the date originally set, the prehearing conference was held as
rescheduled on July 14, 2005 in
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
[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
17. The notice by
publication was published on August 18, August 25 and September 1, 2005 in the
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
[VOLUME 11, PAGE 43]
21. A prehearing
conference was conducted as scheduled in
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
[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
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
[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)
(2)
(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)
(5)
(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)
(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.
[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
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
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
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
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 (
[VOLUME 11, PAGE 48]
45. The current
status of the law was summarized in Parkison
v. McCue, 831 N.E.2d 118, 128 (
Easements burdening land with riparian rights attached do no
necessarily provide the easement holder use of these riparian rights. Brown
v. Heidersbach, 172
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
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
[VOLUME 11, PAGE 49]
52. The evidence in
this proceeding does not disclose whether
53. The Indiana
Court of Appeals was invited to determine whether
54. Regardless of
whether
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 (
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
[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
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:
[VOLUME 11, PAGE 52]
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
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).
A
B. The facts
contained in this Finding and in Finding 10
were proffered by the administrative law judge in a January 18, 2006 “Entry
with Respect to Consideration of Joinder, as a Party, of Board of County
Commissioners of
Effective July 1, 2006, the Indiana General Assembly
made several amendments to the Lakes Preservation Act, including expanding the
DNR’s jurisdiction ten feet landward of the shoreline with regard to the construction
of walls. See IC 14-26-2-23(a)(2)(B) as
amended by P.L. 152-2006, SEC. 3.
Previously, the Commission had found the DNR has jurisdiction to
“exercise control over construction activities in immediate proximity to the
lake which have the potential for negatively impacting the lake, such as
through sedimentation.”
C. Noteworthy is that a motorboat traveling within the channel is limited to a maximum of “idle speed”. IC 14-15-3-17(b). “Idle speed” means the slowest possible speed, not exceeding five miles per hour, to maintain steerage so that the wake or wash created by a boat is minimal. IC 14-8-2-129.