CADDNAR

[CITE: Adochio, et al. v. Kranz, et al., 11 CADDNAR 400 (2008)]

 

 

[VOLUME 11, PAGE 400]

 

 

Cause #: 07-204W

Caption: Adochio, et al. v. Kranz, et al.

Administrative Law Judge: Lucas

Attorneys: Kocher (Adochio); Gifford (Kranz); Bartoszek (pro se)

Date: July 16, 2008

 

 

[NOTE: THE ADMINISTRATIVE LAW JUDGE ENTERED THE DISPOSITION OF A STAY REQUEST ON JUNE 27, 2008 in ADOCHIO, ET AL. v. KRANZ, ET AL. (STAY), 11 CADDNAR 396 (2008).]

 

FINAL ORDER

 

Each of the Claimants is ordered to remove any pier, boat station, or moored watercraft from the waters of Bass Lake adjacent to, and 350 feet lakeward from, Kranz Lot 49 and Bartoszek Lot 48.  The effectiveness of this order is stayed until August 1, 2008.  After January 1, 2009, the owners of lots in the Meyers Subdivision must not maintain or relocate any pier, boat station, or moored watercraft in Bass Lake except pursuant to an individual license issued by the Department of Natural Resources. 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Proceeding and Jurisdiction

 

1. On October 15, 2007, Nancy Adochio (“Adochio”) filed correspondence with the Natural Resources Commission (the “Commission”) which states in substantive part as follows:

 

I am writing on behalf of the Meyer’s Subdivision who have a deeded fifteen [foot] easement to Bass Lake, which is currently recorded in Plat Book pages 141-142 and 168-169 southwesterly 15 foot of Lot 49 in the Scoville’s Subdivision dated April 14, 1962. (see attached copy of deed)

 

Since 1962 the Meyer’s Subdivision has installed a pier on our access to egress the lake and to our boats.  We currently have twenty five residents of the Meyer’s Subdivision of which only eight residents have boats that are, either by use of augering or shore stations docked within the 15’ easement of the lake.

 

This Spring 2007 the owner of Lot 49, Mr. Gunther Kranz, of which our fifteen foot easement is located, told us not to install our pier.  He gave no reason other than the fact that he did not want Meyer’s Residents to be able to egress the lake through our deeded easement.  Since 1962 the owners have been able to ingress and egress the lake and to enjoy themselves.  He even tried to block our entry to our easement by parking his vehicles in the access.  Local Firefighters informed him this was not a good idea in the case of an emergency.  We were forced to retain a lawyer, Mr. John Kocher from Winamac.  Mr. Kocher forwarded a letter to Mr. Kranz telling him that he had no right to stop the installation of our pier.  Our pier was installed by carrying each and every section down the easement from across the street while Mr. Kranz sat in his truck trying to block the easement.  The Starke County Police and DNR were called and Mr. Brian Culbreth of the DNR has investigated the issues that have been brought up to him by Mr. Gunther Kranz.

 

[VOLUME 11, PAGE 401]

 

Prior to living on the lake, Gunther and Carol Kranz owned a home in the Meyer’s Subdivision for several years and used the same easement for the enjoyment of his family.  The Kranz’ lived at 6478 S. Tee Street and the use of the easement was a selling feature for his home.  Only now that Mr. Kranz owns the home on the easement that all the problems and issues have arisen.

 

We, the owners of the Meyer’s Subdivision, only want what has been ours since 1962 and comes with the purchase of every home in this subdivision, the Right to the lake through the easement that Mr. Joseph and Blanche Meyers dedicated and deeded to us April 14, 1962, and to use the lake as other owners.

 

Mr. Brian Culbreth from the DNR stopped by my home on Saturday, October 13, 2007, and told me that we only have a footpath to the lake and that we have no right in install a pier nor to have a boat on the lake, and that I would have to appeal this decision before the next boating season.  My question is, “why if we, the owners of the easement, cannot have a pier or boat on Bass Lake, then why can others.”  If we need to have the permission of the Department of Natural Resources or if we need to have a hearing to resolve this matter, then we, the owners of the Meyer’s Subdivision are asking for a hearing.  Meyer Subdivision resident’s are just trying to use their deeded easement to ingress and egress the lake, whether it be to just sit on the pier or enjoy their boats just as any other owner on the lake.

 

In closing, several of the current Meyer’s Subdivision residents lived in this subdivision when the deed was signed by Joseph and Blanche Meyers and their signatures appear on the deed.  We are only asking to install our pier and our boats as we have for some of us, forty seven years.

 

Thank you very much for your time and consideration and I will look forward to hearing from you.  I have enclosed a list of homeowners of the Meyer’s Subdivision for your records.

 

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

 

2. Attached to the correspondence described in Finding 1 was a “Vacation and Relocation of Easement”.  This document provides in substantive part as follows:

 

VACATION AND RELOCATION OF EASEMENT

 

In consideration of the easement hereinafter granted, the undersigned, constituting all of the owners of lots and lands in Joseph Meyers Subdivision to Bass Lake, in Starke County, Indiana, recorded in Plat Book No. 2 pages 141-142 in the office of the Recorder of Starke County, Indiana, or lots in First Addition to Joseph Meyers Subdivision to Bass Lake, recorded in Plat Book 2, pages 168 and 169 in the office of the Recorder of Starke County, Indiana; do

 

[VOLUME 11, PAGE 402]

 

hereby vacate the lake easement of a foot path over the northeasterly 15 feet of Lot Number 48 in Scoville’s Subdivision of Original Lot 2 in the N.E. ¼ of Section 24, Township 32 North, Range 2 West of the 2^nd P.m., as heretofore dedicated and granted as an appurtenance to the dwelling owners on said subdivisions described above or as appurtenant to any other lots in Scoville’s Subdivision of Original Lot 2 in Section 24, Township 32 North, Range 2 West of the 2^nd P.M., as may have been granted by the said Joseph Meyers and Blanche Meyers, husband and wife.  And the undersigned do hereby release all rights in and to said lake easement over the said northeasterly 15 feet in and to said lake easement over the said northeasterly 15 feet of Lot Number 48 in Scoville’s Subdivision of Original Lot 2 in the N.E. ¼ of Section 24, Township 32 North, Range 2 West of the 2^nd P.M.

 

In consideration of the premises and vacation of the easement above described, Joseph Meyers and Blanche Meyers, husband and wife, do hereby dedicate and grant, to owners of lots in, or within the boundary lines of Joseph Meyers Subdivision and Joseph Meyers First Addition to Bass Lake recorded in Plat Boot 2 pages 141-142 and 168-169, a foot path over the southwesterly 15 feet of Lot Number 49 in Scoville’s Subdivision of Original Lot 2 in the N.E. ¼ of Section 24, Township 32 North, Range 2 West of the 2^nd P.M., extending 15 feet wide from Lakeside Avenue to the waters of Bass Lake; said foot path to be along and adjacent to the southwesterly line of said Lot Number 49.

 

All owners of lands joining herein do hereby accept the easement last above described and do relinquish and release all right or title to an easement over the northeasterly 15 feet of Lot Number 48 in Scoville’s Subdivision of Original Lot 2 in the N.E. ¼ of Section 24, Township 32 North, Range 2 West of the 2^nd P.M., in Starke County, Indiana.

 

IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals as of this 14^th day of April 1962.

 

The “Vacation and Relocation of Easement” was subsequently entered into evidence by stipulation of the parties as Exhibit 14[1] and is referenced here as the “subject easement”.  The lots in the “Joseph Meyers Subdivision and Joseph Meyers First Addition to Bass Lake” are referred to here as the “Meyers Subdivision”.  The owners of lots in the Meyers Subdivision enjoy the dominant estate in the subject easement.

 

[VOLUME 11, PAGE 403]

 

3. Bass Lake in Starke County, Indiana is a “public freshwater lake” as described in IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Commission at 312 IAC 11-1 through 312 IAC 11-5 to assist with implementation of the Lakes Preservation Act.  Zapffe v. Srbeny (1992), Ind. App., 587 N.E.2d 177; Krivak v. DNR, Dempsey, Lenzen, and Amelio, 6 Caddnar 176 (1994); and, Lauder and Starke Co. Comn. v. DNR, 7 Caddnar 180 (1996).

 

4. Stephen L. Lucas was appointed as the Commission’s administrative law judge for this proceeding.  He wrote to Adochio on October 22, 2007 and requested a current address for Gunther Kranz and Carol Kranz (the “Kranzes”) so that service could be made upon them.  Adochio responded with a letter filed on October 26, 2007 which provided a mailing address for the Kranzes.

 

5.  The initial prehearing conference was conducted as scheduled in Michigan City, Indiana on December 7, 2007.  Adochio and other persons who are owners of lots in the Meyers Subdivision were notified and were designated the “Claimants” as set forth in the caption.[2]  The Kranzes, who are owners of Lot 49 (sometimes referred to here as “Kranz Lot 49”) described in the subject easement, hold the servient estate and were initially identified as Respondents.  Christopher Bartoszek (“Bartoszek”) is the owner of Lot 48 (sometimes referred to as “Bartoszek Lot 48”), which is immediately southwest of and adjacent to Kranz Lot 49 and to the subject easement, and he was added as an additional Respondent.  The Kranzes and Bartoszek are here collectively the “Respondents”.  The Department of Natural Resources (the “DNR”) was also served and was added as a “Third Party Respondent” because the DNR is the regulatory authority for the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  The Claimants, the Respondents and the DNR are collectively the “Parties”.

 

6. Following the initial prehearing conference, the administrative law judge summarized the issues presented by the Parties in a “Report of Prehearing Conference and Notice of Telephone Status Conference” entered on December 10, 2007:

 

The attorneys for the parties outlined the issues.  For consideration is a dispute as to the placement of a pier and similar facilities within Bass Lake in Starke County.  Bass Lake is a “public freshwater lake” [under the Lakes Preservation Act].  The Claimants contend they hold the dominant estate for an easement which allows the placement of the pier and similar facilities.  The Respondents do not deny the existence of an easement but dispute that the easement authorizes the placement of a pier and similar facilities as advocated by the Claimants.

 

[VOLUME 11, PAGE 404]

 

In response to a question by [the Kranzes’s attorney], the administrative law judge said he included the [DNR] as a party because the original petition by [Adochio] stated that Conservation Office, Brian Culbreth, issued an order pertaining to the use of the easement within Bass Lake.  The administrative law judge said the terms of the order needed to be memorialized to facilitate full responses by the [P]arties and a more comprehensive understanding of issues by the [P]arties and the administrative law judge.  On the other hand, a proceeding could have been initiated by the Claimants under the Lakes Preservation Act even in the absence of DNR action or participation.

 

7. “A dispute concerning the exercise of riparian rights within a public freshwater lake is subject to administrative review by the Commission under AOPA.  IC 14-10-2-3 and IC 14-26-2-23.”  Havel & Stickelmeyer v. Fisher, et al., 11 CADDNAR 110, (2007).

 

8. During the initial prehearing conference, the Parties also agreed and were then ordered by the administrative law judge to provide written statements of contentions.  Each of the Parties timely complied with their agreement and the order.

 

9. The DNR filed its “Statement of Contentions” on January 3, 2008 which stated in substantive parts:

 

1. The cause was initiated by Claimants as a Petition to the [Commission] as a result of a pier dispute between Claimants (“Easement Holders”) and Respondents (“Riparian Neighbors”).

 

2. The dispute concerns a fifteen (15’) foot easement on Bass Lake.

 

3. In May, 2007, IDO Brian Culbreth was contacted by Gunther Kranz, one of the Riparian Neighbors, regarding ongoing issues between the Easement Holders and Riparian Neighbors.

 

4. Officer Culbreth submitted a written Incident Report Form detailing his involvement in the dispute….

 

5. Officer Culbreth determined from the deed creating the easement that included in the rights given to the Easement Holders was the right to use the easement as a path to the lake, but that the easement did not convey the right for them to place a pier in the waters of Bass Lake….

 

6. He advised them to seek a judicial determination construing the meaning of the grant of easement with the [Commission]….

 

7. He further advised that, pending a judicial determination, the easement pier could remain in the waters of Bass Lake to the end of the 2007 boating season, but was not to be placed in the waters of Bass Lake in Spring, 2008.

 

[VOLUME 11, PAGE 405]

 

8. The following issues need to be determined by a settlement between the Claimants and Respondents or a judicial determination: whether the fifteen (15’) foot easement held by the Easement Holders contains a grant of riparian rights; if the Easement Holders are determined to have riparian rights, whether the right to place a pier in the waters of Bass Lake is among those rights; if the Easement Holders have the right to place a pier in the waters of Bass lake, what are the dimensions of their riparian zone; and, are the Easement Holders required to obtain a group pier permit from the Department for a pier that they may wish to place within their riparian zone within the waters of Bass Lake.

 

9. Once these issues are determined, the [DNR] will have the information it needs to regulate the portion of Bass Lake involved in this dispute.

 

10. Bartoszek filed his “Statement of Contentions” on February 4, 2008.  The substantive parts are set forth below, with deletions of matters which are outside the Commission’s subject matter jurisdiction under the Lakes Preservation Act[3]:

 

1. This cause was initiated by the Claimants as a Petition to the [Commission] as a result of a dispute between Claimants and the Respondents over the right of the Claimants to install and operate a pier at the lakeshore.

 

2. The “marina-like” and “party” atmosphere infringes on our ability to use and enjoy our property and lake-front.  The usage of the lake by the Claimants has exceeded what is reasonable and the historical intent and purpose of the easement as originally granted.  We are not objecting to the right of access, only to current evolution of this “right” into a de facto and unauthorized “marina and social club”….

 

3. The number of boats at the pier has escalated over the past few years from a couple of boats to as many as 20 or more boats.  These boats all congregate in a very small area.

 

4. During one such event, one of the Claimants boats came loose from its screw anchor and drifted into our pier and impacting the pier and the tethered wave runners.  When the Claimant observed this condition, the response was to jump into the water and attempt to untie my wave runners to avoid damage to his craft.  This action exhibited disregard from my property.

 

….

 

[VOLUME 11, PAGE 406]

 

13. There are rental properties in the Meyers Subdivision that also offer the use [of] the pier when the properties are rented.  This economic advantage, I believe, was never the intent of the original easement.  These property owners are advertising “lake access and a private pier”.

 

14. I have read the deed and no where in it does it state the permission to have a pier.  This document (deed) states in multiple locations “foot path only”.  No where is there a mention of a pier or pier access to the lake.

 

15. We endorse the decision by Mr. Brian Culbreth of the Indiana DNR that the Meyer’s subdivision residents do not have Riparian Rights to install a pier on Bass Lake and are entitled only to the “foot path” access as described in the easement.  The easement cannot convey such riparian rights.

 

[16]. We further petition the Indiana DNR to not permit the installation of the pier for the above cited reasons but as importantly for the ecological and environmental protection of Bass Lake.  Furthermore, the Claimants have operated the pier without obtaining approval from the Indiana DNR and have failed to obtain a group pier permit from the DNR.

 

11. The “Claimants Statement of Contentions” was filed on February 5, 2008, and the document stated in substantive parts:

 

It is Claimants’ position that due to over 40 years of continuous placement and use of a pier into the waters of Bass Lake, Respondents have no legal right to enjoin or prevent continuous, uninterrupted placement of the pier.

 

If this were a situation involving use of land over a lengthy period of time, a case could be made to sustain a claim of adverse possession by prescriptive easement.

 

The part asserting the claim of adverse possession must prove by “clear and convincing evidence” each of the following:

 

1. Control—Claimants must exercise a degree of use and control over the parcel that is normal and customary.  Here, Claimants used the pier for many years to moor their boats, (normal and customary).

 

2. Intent—Claimants must demonstrate intent to claim full ownership of the tract superior to the right of all others, particularly the legal owner.  Here Claimants utilized the pier exclusively by their families and invitees.  The general public was not granted access.  Until recently, the pier placement was permitted by owners of Lot 49 for their private and exclusive use.

 

3. Notice—Claimants must demonstrate their activities were sufficient to give actual and constructive notice to the legal owner of the control and the intent elements.  Here Claimants openly and regularly used the pier, in full view of the past and present owner of Lot 49.  It was not until the past two summers that the issue of pier placement was raised by Respondents.

 

[VOLUME 11, PAGE 407]

 

4. Duration—Claimants must demonstrate control, intent and notice existing continuously.  Here, Claimants and their predecessors in title placed and utilized a pier extending from their easement for a continuous period in excess of 40 years.

 

In the present case Claimants are submitting that by the clear and convincing evidence of control, intent, notice and duration a recreational prescriptive easement is established expanding Claimants easement over the riparian areas of Respondents Kranz.

 

As noted in Havel & Stickelmyer v. Fisher, et al, 11 CADDNAR 110, Cause No. 05-212W, “Recreational use (especially of water which leaves no telltale path or road)….  Seems…likely to be ‘permissive rather than adverse’.

 

From the beginning of Meyers Subdivision, a pier has been annually placed at the end of the 15’ easement extending into the waters of Bass Lake.  Mr. Bill Felgenhauer, a 39-year Meyers Subdivision property owner and a 21-year continuous resident affirms in the attached Affidavit of the continuous pier placement for well in excess of 20 years.

 

….  Respondents Kranz, prior to their ownership of their Lot 49, owned property in Meyers Subdivision.  Respondents Kranz, during their ownership of Meyers Subdivision property, annually participated in collecting subdivision funds for pier placement and maintenance.  Respondents Kranz had actual knowledge of the annual pier installation and use by Meyers Subdivision residents.  Respondents Kranz cannot now deny Meyers Subdivision residents the placement and use of the pier.

The Claimants, due to the continuous past use which had been permitted for well over 20 years of a pier placement, have the right to continue the placement of the pier, subject only to DNR regulations.

 

 

12. The “Statement of Contentions of Respondents, Gunther and Carol Kranz” were also filed on February 5, 1008 and stated in substantive parts:

 

1. The cause was initiated by Claimants as they petitioned to the [Commission] as the result of a pier dispute between Claimants (“Easement Holders”) and Kranz (“Riparian Neighbors”).

 

2. The dispute concerns a fifteen (15) foot easement on Bass Lake on, over, and through real estate owned by Kranz.

 

3. That Kranz believes that the deed creating the easement that included the rights given to the Easement Holders gave to the Easement Holders the right to use the easement as a foot path to Bass Lake, but that the easement does not convey the right for them to place a pier in the waters of Bass Lake nor does it provide them with any riparian rights in the absence of any evidence that the original grantor intended to convey riparian rights.

 

[VOLUME 11, PAGE 408]

 

4. That such riparian rights have also not been acquired by means of a prescriptive easement.

 

5. That Kranz would concur that the issues that need to be determined, either through a settlement between the Claimants and Kranz or a judicial determination, are whether the fifteen (15) foot easement held by the Easement Holders contain a grant of riparian rights; if the Easement Holders are determined to have riparian rights, whether the right to place a pier in the waters of Bass Lake is among those rights; if the Easement Holders have the right to place a pier in the waters of Bass Lake, what are the dimensions of their riparian zone; and are the Easement Holders required to obtain a group pier permit from the [DNR] for any pier that they may wish to place within the riparian zone within the waters of Bass Lake.

 

6. Kranz believes that the fifteen (15) foot easement held by the Easement Holders does not contain a grant of riparian rights nor does it give those Easement Holders any right to place a pier in the waters of Bass Lake at the end of the foot path easement either because of language in the easement or through a prescriptive easement of any kind.

 

13. The Commission has jurisdiction over the subject matter and over the persons of the Parties.

 

B. Burdens of Proof and Hearing de Novo

 

14. On behalf of the DNR, Conservation Officer Brian Culbreth determined the subject easement provided the Claimants with a foot path to Bass Lake, but the subject easement did not convey riparian rights to the Claimants to place a pier.  Culbreth’s determination was a “status determination” under IC 4-21.5-3-5(a)(5) (the “subject status determination”).  On October 13, 2007, he communicated the subject status determination to the Claimants through Adochio.

 

15. The Claimants initiated this proceeding when Adochio sought administrative review of the subject status determination. 

 

16. At each stage of a proceeding, a party requesting that an agency take action or asserting an affirmative defense has the burden of going forward and the burden of persuasion (sometimes collectively referred to as the “burden of proof”) with the evidence.  IC 4-21.5-3-14(c).  A party seeking to set aside a status determination has the burden of proof.  Ind. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991) and Pierson v. DNR and American Aggregates, d/b/a Martin Marietta, 9 Caddnar 19, 20 (2001).

 

17. Findings under AOPA must be based upon evidence that is “substantial and reliable”.  IC 4-21.5-3-27(d) and Citizens Action Coalition of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264 (Ind. App. 2003). 

 

[VOLUME 11, PAGE 409]

 

18. Typically, the standard of review under AOPA is “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Dowden v. Department of Natural Resources, 6 Caddnar 25 (2001). 

 

19. “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994).  The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true.  Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).

 

20.  Until 2005, the standard applicable to a claim of adverse possession was problematical.  In Fraley v. Minger, 829 N.E.2d 476, 483 (Ind. 2005), the Indiana Supreme Court synthesized and simplified the various holdings of Indiana’s appellate courts: 

Deferring to the majority of cases that have actually discussed the quantum of proof issue, we find that the heightened standard is appropriate.  Employing current terminology, however, we believe that ‘clear and convincing’ is a preferable way to describe the heightened standard needed to establish possession, thus embracing and superseding the variety of terms previously used.

 

21. As a consequence of Fraley, in order to sustain a claim of adverse possession, the party asserting the claim must prove, by clear and convincing evidence, each of the following four elements:

1. Control: The person asserting adverse possession must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual”, and, in some ways, of “exclusive” possession).

 

2. Intent: The person asserting adverse possession must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right”, “exclusive”, “hostile” and “adverse”).

 

3. Notice: The person asserting adverse possession must demonstrate its actions with respect to the land were sufficient to give actual and constructive notice to the legal owner of the control and the intent elements (reflecting the former “visible”, “open”, “notorious”, and in some ways “hostile” elements).

 

[VOLUME 11, PAGE 410]

 

4. Duration: The person asserting adverse possession must demonstrate control, intent and notice existing continuously for the required period of time (reflecting the former “continuous” element).

 

22. Clear and convincing evidence has been described as more than a preponderance of the evidence but less than beyond a reasonable doubt.  Clear and convincing proof will be shown where the truth of the facts asserted is highly probable.  Black’s Law Dictionary, 6^th Edition (West Publishing Co. 1990), p. 251.

 

23. IC 32-23-1-1 requiring 20 years of use was not modified by the Indiana Supreme Court in Fraley.

 

24. In the first decision following Fraley, the Indiana Supreme Court applied the same elements to a claim of prescriptive easement in Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005).  “This reformulation applies as well for establishing prescriptive easements, save for those differences required by the differences between fee interests and easements.”  Wilfong at 406.  Fraley and Wilfong were recently applied favorably by the Commission in Havel & Stickelmeyer cited previously at 11 Caddnar 110, 121.

 

25. Administrative review of a DNR status determination is conducted de novo.  Rather than deferring to the DNR determination, de novo review requires the administrative law judge to consider and apply proper weight to the evidence.  Pierson v. DNR and American Aggregates and DNR v. United Refuse Co., Inc., cited previously.

 

26. The hearing in this proceeding has been conducted de novo.  The Claimants had the burden of proof to set aside the subject status determination.  Except for their claim to a prescriptive easement, the Claimants have the burden of proof by a preponderance of the evidence.  With respect to the prescriptive easement, the Claimants were required to demonstrate each element referenced in Finding 21 by clear and convincing evidence.

 

C. Entitlement of Claimants to Place Pier within the Subject Easement

 

27. On the subject easement, the Claimants enjoy the dominant estate for a 15-foot wide easement across the southwestern extremity of Kranz Lot 49.  The Kranzes have the servient estate. 

 

28. The Kranzes and Bartoszek share a common property line and are riparian owners of Bass Lake.  The subject easement borders and is immediately northeast of Bartoszek Lot 48 but does not encumber Bartoszek Lot 48.

 

[VOLUME 11, PAGE 411]

 

29. The Claimants are not riparian owners. Yet a determination that persons are not riparian owners “does not settle the question of whether they are entitled to install and use a dock in the property enjoyment of their easement for right-of-way purposes.”  Klotz v. Horn, 558 N.E.2d 1096, 1097 (Ind. 1990), citing Farnes v. Lane, 281 Minn. 222, 161 N.W.2d 297, 301 (Minn. 1968).  “The issue is not whether the easement holder attains riparian ownership status, but rather, whether he is entitled to use the riparian rights of the servient tenant who has given him access to the body of water bordering the servient estate.  Emphasis supplied by court in Klotz at 1097. 

 

30. The intentions of the riparian owner who granted an easement are to be implemented in construing the easement.  In a plat or other recorded conveyance, clear language controls.  “Dominant owners of lakeside easements may gain the rights to erect and maintain piers, moor boats and the like by the express language of the creating instrument.”  Klotz at 1097 and 1098.  The Commission determined a right-of-way for lake ingress and egress and “for the maintenance of a boat and swimming pier” expressed a clear intent and established the right to place a pier, even though the right-of-way was only three feet wide.  Havel & Stickelmeyer at 11 Caddnar 110, 117.

 

31. “[G]enerally, access to a body of water is sought for particular purposes beyond merely reaching the water, and where such purposes are not plainly indicated, a court may resort to extrinsic evidence to assist the court in ascertaining what they may have been.”  Klotz citing Badger v. Hill, 404 A.2d 222, 226, (Me. 1979).  In Klotz, the Indiana Supreme Court determined the phrase “access to Eagle Lake” for a six-foot wide easement was ambiguous and properly required the consideration of “extrinsic or parol evidence to ascertain the intent of the parties who created the instrument.”  A factor determined appropriate to identifying intent was whether, in the absence of a pier, shoreline conditions would make difficult the dominant estate’s access to and enjoyment of the lake.  The court in Klotz also cited favorably the Badger decision which determined the deed granting “a pedestrian right of way or foot-path, being six (6) feet in width” was ambiguous and required extrinsic and parol evidence to implement the grantor’s intent.

 

32. The subject easement for “a foot path over the southwesterly 15 feet of Lot Number 49…from Lakeside Avenue to the waters of Bass Lake” is ambiguous and properly requires the consideration of extrinsic or parol evidence to ascertain whether the grantors intended to allow for the placement of a pier by the dominant estate.

 

33. A hearing was conducted as scheduled in this proceeding at 4320 Toto Road, North Judson, Indiana on April 29, 2008.  Documents were stipulated, testimony was given and other evidence was received.

 

34. Richard Leadbetter testified he purchased a lot in the Meyers Subdivision in 1956.  He and his wife built a home on the lot, and they since have been residents or have seasonally used the home.  Included with his purchase was access through an easement to Bass Lake, although the original easement was in a location different from the subject easement.  A pier was placed on the original easement. 

 

[VOLUME 11, PAGE 412]

35. Leadbetter testified that in the spring 1962, Joseph Meyers “got the people together”[4] who lived in the subdivision and informed them that he “was getting ready to retire.”   According to Leadbetter, the subdivision residents were informed the easement was being relocated to the site of the subject easement, “and all the rights that was being enjoyed” from the former location would be incorporated in the subject easement.  These included “the rights to the lake” and “the enjoyment of the pier” that had been placed on the original easement.  Leadbetter testified Joseph Meyers told the subdivision residents to “just take this” pier “and move it over there, and that’s the way it was.” 

 

36. Leadbetter testified that Meyers said all the owners of the lots would have to sign agreement to relocate the easement in order for the relocation to be effective.  He testified all subdivision lot owners signed the agreement.  “And at that time, it was an old wooden pier” with eight sections which was “36 to 40 feet” long, “at the most”.  Leadbetter continued, “We did move that over, and that’s the way it was for years.”  He said the “men in the subdivision” maintained the pier and seasonally put the pier in and took it out.  We “would paint it and maintain it.”  The original pier was a wooden A-frame.  He testified that later the pier became longer and was replaced with a metal structure. 

 

37. Leadbetter testified there were years when no pier was placed due to low water on Bass Lake, or there were only one or two sections placed.  On cross-examination, Leadbetter testified he could not recall how many years a pier was not placed or during which years a pier was not placed.  “But we always put something out there so we could get in past the so-called abutment we had there….  We used railroad ties for erosion purposes, and it was always difficult to step over those things and get down into the so-called lake water.”

 

38. Bill Selgenhauer and his wife are owners and residents of the Meyers Subdivision.  Selgenhauer testified he and his step-father bought two lots in the subdivision in 1969, and he started building a “home in 1975”, with it sufficiently completed for habitability by 1976.  His mother lived in the home until her death, when Selgenhauer lived in Lansing, Illinois, visiting the property regularly.  He testified that in different years, boats were moored in different ways.  The subdivision owners eventually agreed among themselves to moor their boats “out beyond the end of the pier” and affixed to a shore station.  “That’s how we did it most of the time.”  To get from the end of the pier to enter a boat, the operator would walk in the water and then might pick up passengers waiting at the pier.  On cross-examination, Selgenhauer testified the positioning of shore stations beyond the pier was “the first one out there is number one.”  There were “changes made in the pier over the years.”  But to the best of his knowledge, a pier was always placed in the water.

 

[VOLUME 11, PAGE 413]

 

39. Lori Bridegroom is an owner and resident of Meyers Subdivision.  She testified that in 1951 her grandparents built the house—the first house in what is now the Meyers Subdivision.   Her grandparents died in the 1980s, and her brother lived there briefly in the 1990s.  Bridegroom subsequently purchased the house from her mother.  She testified the house was an important part of her childhood, and she recalled visiting her grandparents there from about 1978.  Ever since she was a child, she observed her family enjoy the easement, a pier, and the lake.  When the lake level on Bass Lake was low due to a drought, only one or two sections of pier were placed.  She testified it would be difficult if not impossible for children and elderly persons to safely access Bass Lake in the absence of a pier to cross large stones placed along the shoreline.

 

40. Shirley Lobianco lives in Cicero, Illinois and has owned property in the Meyers Subdivision since 1976.  She testified, “I don’t ever remember the pier not being there.”  Lobianco added, “I remember the day when I bought it, sitting on the pier, and we were just so happy.”

 

41. Witnesses other than Richard Leadbetter, Bill Selgenhauer, Lori Bridegroom, and Shirley Lobianco also testified concerning the history of pier usage and the Meyers Subdivision.  Their testimonies were not persuasive as to the intentions of Joseph Meyers for the subject easement.  The personal knowledge of the other witnesses was limited to the 1990s and later.  References in their testimonies were unconvincing, notably when compared to Leadbetter, Selgenhauer, Bridegroom and Lobianco.  To the extent there was contrary testimony by the Respondents into the intentions of Meyers or purchasers from Meyers, the testimony was based on hearsay. 

 

42. In particular, the testimony by Richard Leadbetter was persuasive.  His demeanor was forthright and articulate.  He provided specifics as to early use of a pier at the former easement, as well as the relocation of the pier and its subsequent usage on the subject easement beginning in 1962.  He testified the pier relocation in 1962 was with the knowledge and approval of Joseph Meyers.  With the passage of time and people after 46 years, a more persuasive chronicle than Leadbetter’s would be difficult to imagine.  Although not so well-defined, the testimonies of Selgenhauer, Bridegroom and Lobianco were consistent with the testimony of Leadbetter.  Leadbetter and Bridegroom also testified as to the practical necessity for a structure to traverse an abutment or seawall placed along the shoreline to control erosion.

 

43. The ambiguity in the subject easement is resolved.  The preponderance of the evidence is that the intention of the subject easement was to provide an opportunity for the lot owners of the Meyers Subdivision to place a pier to facilitate reasonable access to Bass Lake.  At a minimum, the pier must afford the ability to safely and conveniently traverse shoreline structures, such as seawalls.[5] 

 

[VOLUME 11, PAGE 414]

 

D. Prescriptive Easement

 

44. “Prescriptive easements are not favored by the law.”  On land, physical evidence can help establish adverse use, and an unexplained use of a path or road for over 20 years offers a presumption of adverse use.  There is not a similar presumption “in favor of a party trying to establish a prescriptive easement for the recreational use of a body of water.... Recreational use (especially of water which leaves no telltale path or road)...seems...likely to be permissive” rather than an intent that is adverse. Carnahan v. Moriah Property Owners Ass’n, 716 N.E.2d 487 (Ind. 1999). 

 

45. In order to establish a prescriptive easement to expand the subject easement, the Claimants would be required to show by clear and convincing evidence that it had established each of the four elements described in Finding 21.  This burden of proof must properly be viewed in the context of recreational waters, such as those of Bass Lake, where the use may be likely to be permissive rather than adverse.  Havel & Stickelmeyer v. Fisher, cited previously at 11 Caddnar 110, 122.

 

46. The subject pier was placed seasonally beginning in 1962.  Richard Leadbetter testified the original structure was a wooden A-frame and at most 36 to 40 feet long.  In subsequent years, the structure generally become longer, but on one or more occasions during drought conditions extended no more than was needed to transverse seawalls or other structures located along the shoreline.  The evidence lacks specificity but suggests that the positioning of any pier varied through the 1980s and the early 1990s.

 

47. Nancy Adochio is a resident of Crest Hill, Illinois and owns a seasonal residence in the Meyers Subdivision.  She testified a deteriorating wooden structure continued to be used through 1995.  A new structure was constructed the following winter and placed as the subject pier in the spring of 1996.  That structure continues to be in use through 2008.

 

48. Adochio testified as to the process for placement of the current structure from 1996.  “[I]t was just I want to say like a grass seawall, and in between they pretty much centered a four-by-four piece of railroad tie or timber, and [residents of the Meyers Subdivision] had that sat there.  And we would place the first section of pier on top of that because that was kind of your step-over to get over into the lake.  So the section of pier went right on top of it, and went straight out.  And to the best of my knowledge we did the best job that we could of putting it straight.  You tried to use a string line to string it out there and keep everything going straight.  But it’s a little deceiving because the lake curves in areas.” 

 

[VOLUME 11, PAGE 415]

 

The angle of placement of the subject pier, relative to the shoreline, was determined because the Claimants would “kind of watch the driveway and string that straight out.  We have 18 sections of pier.”  She added, “we kind of eye-balled it to the driveway.”  Adochio testified she believed the driveway was within the subject easement.  She testified the current structure of the subject pier was approximately 180 feet long[6] from the shoreline, with an additional eight foot square bench.  Adochio also testified she inquired about determining the location of the easement through a professional survey but determined the cost of the survey was a “little pricey”.  The suggestion was made to her that irons which identified the subject easement could be located through metal detectors, but she did not subsequently use metal detectors to locate the irons.

 

49. More recently a glacial stone seawall has seemingly been placed, and the local volunteer fire department has undertaken responsibility for placing and removing the pier structure.  There was testimony that the firemen can identify “soft spots” where posts were placed in the previous summer, and these soft spots are used to help relocate the pier in its prior configuration.  No fireman testified, however, and there was no testimony as to how the firemen chose the original location of the posts.

 

50. The evidence falls far short of establishing a prescriptive easement that exceeds what was intended by Joseph Meyers in 1962 for the subject easement.  First, the general infirmity expressed by Carnahan for easements in lakes is applicable.  The placement of seasonal temporary piers seems likely to have been permissive among neighbors.  Notwithstanding recent personal conflicts, the record does not disclosure vigilant scrutiny of terrestrial property lines, to say nothing of the resulting riparian zones within Bass Lake.  Second, the evidence does not manifest intent by the Claimants to claim full ownership of interests beyond those provided by the subject easement.  Even assuming a structure of some nature was placed by the Claimants in each of the last 20 years (and the evidence is in dispute), the character and footprint of the structure has changed over time.  The subject easement authorized at least a structure to allow the Claimants safe and convenient access to the lake.  A pier which does no more than exercise the legitimate rights of the dominant estate is not hostile to the servient estate of the Kranzes.  The evidence is even less compelling that the subject pier has, for any continuous duration even approaching 20 years, encroached on the riparian interests of Bartoszek.  Third, the record reflects the materials, lengths, angling and widths of the subject pier have changed over time, with the only plausibly demonstrable consistency coming in recent years with placement by the local fire department.  Even testimony regarding the process used by the fire department was based on hearsay and less than clear and convincing.  There is no showing the footprint of the subject pier has had a continuous duration, even a continuous duration measured in seasonal terms, for the requisite 20 years.

 

[VOLUME 11, PAGE 416]

 

51. The Claimants have failed to show through clear and convincing evidence that they are, by prescriptive easement, entitled to any expansion of rights beyond those conferred by the subject easement.

 

E. Individual Licensure Requirement

 

52. The Indiana General Assembly directed the Commission to adopt rules to provide objective standards for issuing licenses under IC 14-26-2-23 of the Lakes Preservation Act, including standards for the configuration of piers, boat stations, platforms, and similar structures.  The standards are to exempt any class of activities from licensing, including temporary structures, if the Commission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in IC 14-26-2-5.  IC 14-26-2-23(e).

 

53. The “public rights” referenced in IC 14-26-2-5 are “natural resources and the natural scenic beauty of Indiana”.  “Natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.  The public of Indiana has a “vested right” in (A) the preservation, protection, and enjoyment of all the public freshwater lakes; and, (B) the use of public freshwater lakes for recreational purposes.  A “recreational purpose” means fishing, boating, swimming, the storage of water to maintain water levels, and any other purpose for which lakes are ordinarily used and adapted.  Indiana holds and controls all public freshwater lakes in trust for the use of all its citizens for recreational purposes.  IC 14-26-2-5.

 

54. The Lakes Preservation Act is “[p]ublic trust legislation” intended to recognize “the public’s right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes.”  Even so, “Riparian landowners...continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public’s rights.”  Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001).

 

55. Applying these statutory authorities, and particularly IC 14-26-2-23(e), the Commission has developed a regulatory design that authorizes the placement of qualified temporary piers, boat stations, and similar structures under a partial exemption that is commonly referred to as a “general license”.  Under this regulatory design, a structure can be placed within a public freshwater lake without obtaining a prior written license (or what is sometimes called an “individual license”) from the DNR.  Clauss v. DNR, 11 Caddnar 150, 152 (2007).

 

56. The ordinary standards for qualification for a general license to place temporary piers and related structures are provided in pertinent part in 312 IAC 11-3-1(a) and (b):

 

 

[VOLUME 11, PAGE 417]

 

(a) The placement of a temporary structure…is authorized without a written license issued by the [DNR under the Lakes Preservation Act and 312 IAC 11-3] if the temporary structure qualifies under this section.

(b) In order for a temporary structure to qualify, the structure must satisfy each of the following:

(1) Be easily removable.

(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.

(3) Not unduly restrict navigation.

(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.

(5) Not extend more than one hundred fifty (150) feet from the…shoreline [or water line].

(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…shoreline [or water line].

(7) Not be a marina.

(8) Not be a group pier.

(9) Be placed by…a riparian owner.

 

57. For Bass Lake, temporary piers and boat lifts, extending farther from the shoreline than those described by 312 IAC 11-3-1(b)(5), may qualify for a general license, if other aspects of 312 IAC 11-3-1 are satisfied.  As provided in 312 IAC 5-6-3(a):

 

Sec. 3. (a) Notwithstanding 312 IAC 11-3-1(b)(5), a temporary pier or boat lift is authorized on Bass Lake in Starke County by a general license under IC 14-26-2 if the structure conforms with both of the following:

(1) Satisfies 312 IAC 11-3-1(b)(1) through 312 IAC 11-3-1(b)(4), 312 IAC 11-3-1(b)(7), and 312 IAC 11-3-1(b)(8).

(2) Extends not more than:

(A) one hundred fifty (150) feet from the shoreline or water line and satisfies 312 IAC 11-3-1(b)(6); or

(B) three hundred (300) feet from the shoreline or water line and does not extend over water that is continuously more than three (3) feet deep.

 

58. A person who acts under 312 IAC 11-3-1(a) and (b) has a general license with conditions that have been codified by rule, and a person who purports to act under the rule’s authority but who violates the conditions, violates the license. 

 

59. A person who wishes to place a temporary pier or other temporary structure, which does not meet each of the conditions of 312 IAC 11-3-1(b), is disqualified from obtaining a general license.  The person is not disqualified from obtaining an individual license.  The consequence of disqualification is that a person must undergo the rigors of the full licensure process of the Lakes Preservation Act and must comply with any applicable rules.

 

[VOLUME 11, PAGE 418]

 

60. 312 IAC 11-3-1(b)(7) disqualifies a “marina” from approval under a general license.  Pursuant to amendments which became effective May 24, 2008, a “marina” is a defined at 312 IAC 11-2-6 as follows:

Sec. 6. “Marina” means a structure that:

(1) can service simultaneously at least five (5) watercraft; and

(2) provides, for a fee, one (1) or more of the following:

(A) Watercraft engine fuel.

(B) Watercraft repair.

(C) Watercraft sales or rental.

 

61. There was no evidence at hearing that the subject pier, individually, or in combination with other facilities at the subject easement, provides for watercraft engine fuel, watercraft repair, or watercraft sales or rental.  312 IAC 11-3-1(b)(7) does not apply.

 

62. 312 IAC 11-3-1(b)(8) disqualifies a “group pier” from approval under a general license.  A “group pier” is defined at 312 IAC 11-2-11.5 as follows:

 

Sec. 11.5. “Group pier” means a pier that provides docking space for any of the following:

(1) At least five (5) separate property owners.

(2) At least five (5) rental units.

(3) An association.

(4) A condominium, cooperative, or other form of horizontal property.

(5) A subdivision or an addition.

(6) A conservancy district.

(7) A campground.

(8) A mobile home park.

(9) A yacht club.

 

63. A conventional pier on a public freshwater lake provides slips along a single stem projecting from the shoreline or from slips along branches extending (often at right angles) from the main stem.

 

64. The configuration used with the subject pier is unconventional.  A metal structure forms a single stem.  Slips are provided at satellite shore stations located lakeward and roughly perpendicular from the end of the pier. 

 

65. Although unconventional, the subject pier is no less a “group pier”.  The evidence is undisputed that the facility actively serves at least eight property owners, and potentially as many as 20 property owners.  As such, the facility qualifies as a “group pier” under 312 IAC 11-2-11.5(1).  In addition, the pier serves the lot owners of the Meyers Subdivision.  As such, the facility qualifies as a “group pier” under 312 IAC 11-2-11.5(5).

 

66. The subject pier is disqualified from approval as a general license and requires an “individual license” as described in Finding 55.

 

[VOLUME 11, PAGE 419]

 

67. The satellite shore stations are integral parts of the subject pier and must properly be considered with it for licensure under the Lakes Preservation Act.  This result is implicit to consideration of the public trust, but the legislative intent is also refocused by 2006 statutory amendments.  P.L. 152-2006, Sec. 3.  In language codified at IC 14-26-2-23(c)(4), the DNR is directed, when conducting licensure under the Lakes Preservation Act, to consider the management of watercraft operations under IC 14-15.  Watercraft moored lakeward of a temporary pier pose an equal or greater potential for harm to the public trust and to boating safety than if they were moored alongside the pier.

 

68. Any of the Claimants that wish to participate in the enjoyment of the subject pier, including the ability to use satellite shore stations lakeward of the pier, must successfully complete an application for an individual license with the DNR.

 

69. The Claimants must make service of the application as required by the Lakes Preservation Act under IC 14-11-4 and under rules adopted at 312 IAC 2-3 to assist with implementation of IC 14-11-4.  Among the persons entitled to notice under these provisions is Bartoszek as the owner of property adjacent to the affected real property.  See, also, IC 4-21.5-3-5(b)(2).  In addition, notice shall be provided to persons entitled under AOPA.  Among the persons entitled to notice under these provisions are the Kranzes, as well as any owners of any of lots in the Meyers Subdivision who do not join in the license application.  The Kranzes and the owners of lots in the Meyers Subdivision are persons who have, under IC 4-21.5-3-5(b)(5), substantial and direct proprietary interests in the outcome of the license application.

 

70. The record does not support a finding that an entity, other than the individual lot owners, currently has the requisite legal authority to represent the Meyers Subdivision in the license application or in another matter pertaining to ownership or management of the subject pier and the satellite shore stations.  By the consent of each lot owner, an association or other person may be identified to represent them and to apply for the required license under the Lakes Preservation Act and under 312 IAC 11-1 through 312 IAC 11-5.  In the alternative, the owners of Meyers Subdivision may seek relief in support of a common use under IC 14-26-2-23(e)(2)(A) and 312 IAC 11-3-4.

 

71. The evidence is undisputed that the subject easement is 15 feet wide where it intersects the shoreline or water line of Bass Lake.  The evidence is also undisputed that the elevation of Bass Lake for determination of the “shoreline or water line” under the Lakes Preservation Act is 713.65 feet elevation, Sea Level Datum.

 

72. The evidence is insufficient to determine where the subject easement intersects the shoreline or water line of Bass Lake, at what angles the boundary of the riparian zone enjoyed by the subject easement should extend into Bass Lake, or how far into Bass Lake this riparian zone should extend.  An application for the individual license must identify these boundaries to the reasonable satisfaction of the DNR.  If a license is granted, any pier or shore station must be located within the boundaries of the riparian zone, subject to the limitations of the Lakes Preservation Act and the terms of the license.

 

73. None of the Claimants and none of the Respondents have established any right or authority, in fact or by law, to place a structure or to moor a boat outside their respective riparian zones.