CADDNAR


[CITE: Plymate v. Paton and DNR, 13 CADDNAR 28 (2012)]

 

 

[VOLUME 13, PAGE 28]

 

 

Cause: 11-089W

Caption: Plymate v. Paton and DNR

Administrative Law Judge: Lucas

Attorneys: Snyder (Plymate); Harris (Paton); Lavender (Weir); Wyndham (DNR)

Date: March 21, 2012

 

 

FINAL ORDER       

 

(1) Robert Paton, as Personal Representative of the Estate of Amelia E. Paton; Robert Paton as an individual; the Gary T. Weir Revocable Trust; and Gary T. Weir as an individual are ordered to remove by April 1, 2012 any structures associated with their respective piers located in the vicinity of Park Avenue on Lake Tippecanoe, Kosciusko County, Indiana. 

 

(2) Robert Paton, as Personal Representative of the Estate of Amelia E. Paton; Robert Paton as an individual; the Gary T. Weir Revocable Trust; and Gary T. Weir as an individual, are further ordered to refrain from placing a pier, mooring buoy, or other structure in the vicinity of Park Avenue after April 1, 2012.

 

(3) Elizabeth M. Plymate, Virginia M. Shaffer, and Shirley K. Myers, each individually; the Elizabeth M. Plymate, Virginia M. Shaffer, and Shirley K. Myers Revocable Trust; and Kalamara Properties, LLC are ordered to refrain from placing a pier, mooring buoy, or other structure in Lake Tippecanoe at the vicinity of Park Avenue that would impair public rights in the use of Park Avenue, including access to Lake Tippecanoe.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Proceeding and Jurisdiction

 

1. The proceeding was initiated on June 2, 2011, under IC § 4-21.5 (sometimes referred to as “AOPA”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 § IAC 3-1 to assist with its implementation of AOPA, when Elizabeth Y. Plymate, Virginia M. Shaffer, Shirley K. Myers Revocable Living Trust, and Kalarama Properties, LLC (collectively, the “Claimants”) filed their “Petition for Administrative Review” (the “original petition”).

 

2. Stephen Lucas was appointed the Commission’s administrative law judge.  He entered a “Notice of Prehearing Conference” on June 3 and served the notice upon the Claimants’ attorney, persons identified by the Claimants’ attorney as respondents, and the Department of Natural Resources (the “DNR”).  Attached to the notice was a copy of the original petition.

 

3. On June 10, “the alleged Respondents Amelia E. Payton and Robert Payton” by their attorney filed a “Motion to Dismiss” and a “Motion to Vacate and Cancel Scheduled Date of Prehearing”.

 

4. On June 13, the Claimants filed a “Motion for Leave to File Amended Petition” which proffered an “Amended Petition for Administrative Review” (the “amended petition”).

 

5. On June 14, 2011, the administrative law judge made “Entries with Respect to Pending Motions by the Respondents and by the Claimants”.  The initial prehearing conference was rescheduled from June 24 to July 29.  In addition, the “Motion for Leave to File Amended Petition” was granted.  In granting the motion, the administrative law judge found the Commission had subject-matter jurisdiction, under IC § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Commission at 312 IAC § 11 to assist with implementation of the Lakes Preservation Act, over the alleged wrongful placement of structures within Lake Tippecanoe, a “public freshwater lake”[1].  If an agency has jurisdiction over the subject matter, a party under AOPA must be provided an opportunity to plead over.  Indiana Office of Environmental Adjudication v. Kunz, 714 N.E.2d 1190 (Ind. App. 1999).  The “Motion to Dismiss” was taken under advisement, and a schedule was established for renewal of a motion to dismiss directed to the amended petition.

 

6. On June 17, the Claimants filed a “Motion to Reschedule Prehearing Conference”.  A “Notice of Rescheduled Prehearing Conference” entered on June 20 rescheduled the initial prehearing conference for August 12, 2011.

 

7. On June 28, Robert W. Paton, as personal representative of the Estate of Amelia E. Paton, and Robert Paton (collectively the “Paton Respondents”) filed timely a renewed “Motion to Dismiss”.  Portions of the “Motion to Dismiss” which was filed on June 10 were incorporated. 

 

8. No filing was made on behalf of the Gary T. Weir Revocable Trust (the “Weir Respondent”). 

 

9. The Paton Respondents and the Weir Respondent are collectively the “Respondents”.

 

10. On July 5, the Claimants filed timely a “Response to Motion to Dismiss”. 

 

11. On July 11, the administrative law judge found the proceeding was ripe for disposition with respect to the Paton Respondents’ “Motion to Dismiss” and entered an “Order Denying Paton Respondents’ Motion to Dismiss and Order Denying Paton Respondents’ Motion to Vacate Date Rescheduled for Prehearing Conference”.  For completeness of the record on administrative review, the disposition of the renewed “Motion to Dismiss” is made a part of this Final Order as set forth in Finding 12 through Finding 23.

 

12. In their June 10 “Motion to Dismiss”, the Paton Respondents asserted:

 

The subject matter of the Claimants’ Petition filed herein is to determine the respective property rights and interests of the parties in regards to real estate located in Kosciusko County, Indiana being the County where the Respondents having an interest therein reside.  Accordingly, the proper and only jurisdiction and venue for determining such property issues are Courts of record in either the Circuit or one of the Superior Courts in Kosciusko County, Indiana.  The Respondents should not and cannot be deprived of their rights and protection afforded by a civil trial in the Circuit or Superior Court of proper jurisdiction.  There are at least three (3) cases filed and appearing of record in the Kosciusko Circuit Court involving subject matters and issues regarding property interests similar to those in the Petition filed herein, in two (2) of which the Claimants’ attorney herein represented some of the parties.  Those previous suits filed in the Kosciusko Superior Court are Saunders vs. Murman, Cause Number 30024, filed in 1962; Guard vs. Cripe, Cause Number 43C01-9207-CP-575, filed in 1992 and King vs. Paton, Cause Number 43C01-9503-CP-200, filed in 1995…. 

 

13. The Claimants countered the Indiana General Assembly enacted the Lakes Preservation Act to give the State of Indiana full power to control public freshwater lakes.  IC § 14-26-2-23 requires a DNR permit for the installation of temporary structures within a public freshwater lake and directs the Commission to adopt rules and processes to resolve disputes between riparian owners or between a riparian owner and the DNR.  With adoption of 312 IAC § 11-1-3, the Commission created procedures for implementing the requirements of IC § 14-26-2-23 and specifically authorized a proceeding by a riparian owner to resolve a dispute among riparian owners.  “Claimants’ amended petition involves a dispute between a riparian owner (Claimants) and a person claiming to have riparian rights along the shoreline of a public freshwater lake.”  The Claimants added the Commission “has jurisdiction of the dispute between Claimants and Respondents” under AOPA.

 

[VOLUME 13, PAGE 29]

 

14. The Lakes Preservation Act places full power over public freshwater lakes in the State of Indiana.  The State holds public freshwater lakes in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes.  The DNR is the agency primarily responsible for administering the trust.  Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001).

 

15. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act, including those derived from competing interests among persons claiming riparian rights or interests in riparian rights that may be sufficient for the placement of piers and similar structures in public freshwater lakes.  IC § 14-10-2-4 and IC § 14-26-2-23.  Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).

 

16. Today’s Lakes Preservation Act is derived from legislation enacted originally in 1947.  Significant statutory amendments were made in 2000, including the addition of IC § 14-26-2-23 cited by the Claimants.  The 2000 amendments clarified the DNR (and the Commission on administrative review) is responsible for implementing a permitting program that applies within a public freshwater lake to both temporary and permanent structures.  The Commission was charged with resolving disputes between “the interests of landowners having property rights abutting public freshwater lakes or rights of access to public freshwater lakes.”  The Commission is to address “competing riparian interests”.  IC § 14-26-2-23(e) and IC § 14-26-2-23(f).

 

 17. “In Indiana, if a party is required by [AOPA] to exhaust its administrative remedies before an agency before obtaining judicial review of the agency decision, courts are completely ousted of subject matter jurisdiction to hear the case at all.”  IC § 4-21.5-5-4.  Austin Lakes Joint Venture v. Avon Util., 648 N.E.2d 641, 644 (Ind. 1995).  Even if an action is initiated in a civil court, “when an activity is arguably subject to agency regulation” the doctrine of primary jurisdiction requires that “the administrative agency initially decides the argument while the court makes the final determination.”  Austin Lakes Joint Venture at 648, n. 8.  Emphasis supplied by the court.

 

 18. Two years ago, the Court of Appeals of Indiana observed with respect to the Indiana Department of Environmental Management and the Office of Environmental Adjudication, (agencies, which like the DNR and the Commission, are governed by AOPA):

 

The purpose of administrative review of agency decisions is to allow the agency “to correct its own errors, to afford the parties and the courts the benefit of [the agency’s] experience and expertise, and to compile a [factual] record which is adequate for judicial review.” …Clearly, it is better for such issues to be presented to the typical administrative review process prior to consideration by the trial court.  The administrative review process allows [the agency] to correct its own mistakes and allows those with the requisite expertise a first look at the issues.”  [Citations omitted.]

 

Ind. Dept. of Env. Mgt. v. NJK Farms, Inc., 921 N.E.2d 834, 844 (Ind. App. 2010).

 

19. The Indiana General Assembly placed responsibility in the DNR and the Commission for implementing the Lakes Preservation Act.  These agencies must be given the opportunity to exercise their experience and expertise and to compile a factual record in implementing those responsibilities.  Following a final agency action by the Commission, a trial court of proper venue may be called to exercise judicial review. 

 

20. The DNR and the Commission have jurisdiction over the subject matter.  Indeed, if they did not exercise jurisdiction under the Lakes Preservation Act, they would be derelict and would additionally deprive the courts of the benefit of their expertise.

 

21. The Paton Respondents also contended decisions from the Kosciusko Circuit Court or the Kosciusko Superior Courts “could be relevant as precedent and determining res judicata and interpretation issues in the instant action.”  Although an accurate premise, the premise does not form a basis for dismissal. Affirmative defenses such as res judicata are addressed in AOPA and at 312 IAC § 3-1-4.

 

22. The DNR is the authority that issues permits for the placement of piers in public freshwater lakes.  Although the Commission has approved general permits through 312 IAC § 11-3-1 for many qualified temporary piers, they are permits just the same.  To qualify for a general permit, the pier must be “placed by a riparian owner or with the written approval of a riparian owner.”  312 IAC § 11-3-1(b)(9).

 

23. The renewed “Motion to Dismiss” by the Paton Respondents was properly denied, and the denial is affirmed.

 

24. On July 14, 2011, the administrative law judge made an “Entry Regarding Possible Addition of Department of Natural Resources as Party Needed for Just Adjudication”.  The existing parties and the DNR were provided until August 1 to respond. 

 

25. On July 21, the Paton Respondents filed their “Response to Entry Regarding Possible Addition of Department of Natural Resources as Party in These Proceedings”.  Also on July 21, the DNR filed its “Petition to Intervene”.

 

26. On August 3, 2011, the administrative law judge entered an “Order Granting Petition to Intervene by Department of Natural Resources”.  For completeness of the record on administrative review, the August 3 disposition is made a part of this Final Order as set forth in Finding 27 through Finding 34.

 

27. The DNR’s “Petition to Intervene” was persuasive.  For consideration is a riparian rights dispute with consequences within Lake Tippecanoe, a “public freshwater lake”.  Lake Tippecanoe is governed the Lakes Preservation Act.  The DNR is the licensing authority and has jurisdiction over the placement of piers and proper configuration of piers on Lake Tippecanoe.

 

28. As stated in Finding 14, the Lakes Preservation Act places the full power of public freshwater lakes in the State of Indiana to hold in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes.  The DNR is the agency primarily responsible for administering the trust.  Indiana Dept. of Nat. Res. v. Lake George and Lake of the Woods v. Ralston.  The DNR is the licensing authority for piers and similar structures.  See most notably IC § 14-26-2-23.  The Lakes Preservation Act does not abrogate the rights of riparian owners on public freshwater lakes but rather provides those rights must be exercised in harmony with the public trust.  Bath v. Courts, 459 N.E.2d 72, 75 (Ind. App. 1984). 

 

29. The DNR and the Commission serve distinct functions under AOPA.  The Commission is the “ultimate authority” for DNR determinations under the Lakes Preservation Act, including those derived from competing interests among persons claiming riparian rights or interests in riparian rights that may be sufficient for the placement of piers and similar structures in public freshwater lakes.  IC § 14-10-2-4 and IC § 14-26-2-23.  Lukis v. Ray.

 

30. As the DNR’s “ultimate authority”, the Commission appoints administrative law judges who are subject to Commission supervision and who are governed by ethics requirements.  IC § 14-10-2-2 and 312 IAC § 3-1-2.5.  An administrative law judges conducts proceedings on behalf of the Commission and not the DNR.  The administrative law judges are required to conduct de novo reviews.  IC § 4-21.5-3-10(d) and Indiana Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).  An administrative law judge may set aside a DNR decision made under the Lakes Preservation Act.  A recent example is Pier 343 and Muncie YMCA v. DNR.

 

[VOLUME 13, PAGE 30]

 

31. The DNR acts independently from the Commission and its administrative law judges.  The DNR may seek judicial review of a decision by a Commission’s administrative law judge.  Peabody Coal v. Indiana DNR, 629 N.E.2d 925 (Ind. App. 1994); summarily affirmed at 664 N.E.2d 1171 (Ind. 1996).  .  The DNR may file “objections” under IC 4-21.5-3-29 to a nonfinal order of an administrative law judge, and those would then be heard and acted upon by the Commission’s AOPA Committee.  Illustrative is Clem, et al. v. Ruble and DNR, 12 Caddnar 209 (2010),[2] also referenced as Clems, Landis and the Cass County Drainage Board v. Ruble and the DNR inMinutes of the AOPA Committee of the Natural Resources Commission” (March 16, 2010) at www.ai.org/nrc/files/March_2010_AOPA_Committee_Minutes_(revised).pdf.

 

32. The DNR’s interests and responsibilities within a public freshwater lake also differ remarkably from those of the Claimants and the Respondents who have competing riparian claims.  The DNR is the trustee for the public trust and the regulatory authority under the Lakes Preservation Act. 

 

33. The administrative law judge granted the DNR’s “Petition to Intervene” and designated the DNR the Respondent Intervenor. 

 

34. The DNR is properly a party to this proceeding.  Granting of its “Petition to Intervene” is affirmed.

 

35. The Claimants, the Respondents, and the DNR are collectively the “parties”.

 

36. The Commission has jurisdiction over the subject matter and over the persons of the parties.

 

37. A hearing of the facts was commenced as scheduled in Columbia City, Indiana and completed on February 7, 2012.  The DNR elected not to participate in the hearing, and to the extent factual findings are derived from the hearing, the DNR has waived any objection to them.  Following adjournment of the hearing, the parties other than the DNR provided brief oral arguments on the record.  The proceeding is ripe for disposition.

 

B. Facts Deduced at Hearing

 

38. On July 9, 1906, the Kalorama Resort Company caused the plat for the map of the First Addition to Kalorama Park to be recorded with the Recorder of Kosciusko County, Indiana at Plat Book 3, Page 75.  The Kalorama Resort Company certified the map was “a true plat of the First Addition to Kalorama Park, in the County of Kosciusko, State of Indiana, to be known as such First Addition.  That the lots as shown on said map; and said streets and alleys are hereby dedicated to public use for the purpose of public highways.”  Claimants Exhibit P.  The First Addition to Kalorama Park is referenced as the “Kalorama First Addition”.

 

39. The usage of Park Avenue in the Kalorama First Addition was at issue in William J. Saunders, Harry V. Myers and George R. Paton v. Harvey H. Murnan, Julius H. and Elizabeth Beaman, William Z. King and Shirley Meyers, Kosciusko Circuit Court, Cause Number 30025.  On January 9, 1962, the Court entered its Order and Decree which states in substantive parts as follows:

 

The Court having heard the evidence adduced and being sufficiently advised in the premises NOW FINDS for the defendants and petitioners and that the allegations in their petition are true; that they are entitled to have the boundary lines of Park Avenue in Kalorama Park, Kosciusko County, Indiana, as the same is laid out and platted in Plat Book 3 at page 75 of the records of Kosciusko County, fixed and determined to be as the same are actually located and used, and that they are entitled to an injunction perpetually enjoining the plaintiffs, William J. Saunders, Harry V. Myers and George E. Paton from moving and extending the North line of said Park avenue North of the true line thereof and the South line of Park Avenue South of the true line thereof into and upon the private property and premises of the defendants and petitioners.

 

THE COURT FURTHERS FINDS that the true North line of Park Avenue in said Kalorama Park is located as follows, to-wit:

 

Beginning at an iron pipe at the Southwest corner of Lot Number Eleven (11) in [Kalorama First Addition], as the same is laid out and platted in Plat Book 5 at page 75 of the records of Kosciusko County, Indiana, thence South 27 degrees 45 minutes West 25.12 feet to a cross in a concrete seawall for a point of beginning; thence North 58 degrees 15 minutes East 218.59 feet to an iron pipe.

 

AND THE COURT FURTHER FINDS that the true South line of said Park Avenue is located as follows, to-wit:

 

Beginning at an iron pipe at the Southwest corner of Lot Number Eleven (11) in [Kalorama First Addition], as the same is laid out and platted in Plat Book 3 at page 75 of the records of Kosciusko Count, Indiana, thence South 37 degrees 45 minutes West 26.12 feet; thence South 44 degrees 23 minutes East 29.22 feet to an iron pipe near a seawall for a principal place of beginning; thence North 56 degrees 25 minutes East 210.59 feet to an iron pipe.

 

AND THE COURT FURTHER FINDS that the plaintiffs are entitled to an injunction perpetually enjoining the defendants Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King and Shirley Meyers from obstructing, infringing upon or otherwise interfering with public rights in said Park Avenue as the same is hereon found and adjudged to be located.

 

IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT that the true North boundary line of Park Avenue in [Kalorama First Addition], as the same is laid out and platted in Plat Book 3 at page 75 of the records of Kosciusko County, Indiana, is located as follows, to-wit:

 

Beginning at an iron pipe at the Southwest corner of Lot Number Eleven (11) in [Kalorama First Addition], as the same is laid out and platted in Plat Book 3 at page 75 of the records of Kosciusko County, Indiana, thence South 37 degrees 45 minutes West 26.13 feet to a cross in a concrete seawall for a point of beginning; thence North 58 degrees 15 minutes East 219.50 feet to an iron pipe.

 

And that the true South line of said Park Avenue in said Kalorama Park is located as follows: to-wit:

 

Beginning at an iron pipe at the Southwest corner of Lot Number Eleven (11) in [Kalorama First Addition], as the same is laid out and platted in Plat Book 3 at page 75 of the records of Kosciusko County, Indiana, thence South 37 degrees 45 minutes West 26.12 feet; thence South 44 degrees 23 minutes East 29.22 feet to an iron pipe near a seawall for a principal place of beginning; thence North 58 degrees 25 minutes East 210.58 feet to an iron pipe.

 

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT that the plaintiffs William J. Saunders, Harry V. Myers and George R. Paton be and they are hereby perpetually enjoined from moving the boundary line of said Park Avenue into and upon the private property of the defendants and petitioners.

 

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT that the defendants, Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King and Shirley Myers, be and they are herby perpetually enjoined from obstructing, infringing upon, or otherwise interfering with public rights in said Park Avenue as the same is herein adjudged located.

 

Respondent Paton Exhibit 7.[3]

 

[VOLUME 13, PAGE 31]

 

40. Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King, and Shirley Myers petitioned the Kosciusko Circuit Court to vacate a portion of Park Avenue.  On March 26, 1962, the Kosciusko Circuit Court granted the petition, and Park Avenue was vacated, except for the following:

 

Beginning at an iron pipe at the Southwest corner of Lot Number Eleven (11) in [Kalorama First Addition] as the same is laid out and platted in Plat Book 3, at page 75, of the records of Kosciusko County, Indiana; thence South 37 degrees 45 minutes West 26.12 feet to a cross in a concrete seawall for a principal place of beginning; thence North 58 degrees 15 minutes East 218.50 feet to an iron pipe; thence South 25 degrees 55 minutes East, 21.9 feet to an iron pipe; thence South 56 degrees 25 minutes West 210.9 feet to an iron pipe; thence South 56 degrees 25 minutes West 210.59 feet to an iron pipe near a seawall; thence North 44 degrees 23 minutes West 29.22 feet to the point of beginning.

 

In the Matter of the Petition of Harvey H. Murnan, et al., for the Vacation of a Part of Park Avenue in the First Addition to Kalorama Park, Tippecanoe Lake, Kosciusko County, Indiana, Kosciusko Circuit Court, Cause Number 30287.  Respondent Paton Exhibit 6.

 

41. Respondent Paton Exhibit 9 through Respondent Paton Exhibit 11 are pleadings from William Z. King and Shirley King Myers v. Robert Paton, David Crider, Harry Williams, Randy Williams and any other persons claiming an interest in the real estate described herein, Kosciusko Circuit Court, Cause Number 43C01-9503-CP-200.  On September 4, 1998, a “Stipulation of Dismissal” was entered in this civil action in which “The parties, by counsel, stipulate dismissal of the foregoing cause, without prejudice, plaintiffs’ costs.”  Respondent Paton Exhibit 11.  No probative matter is contained in Respondent Paton Exhibit 9 through Respondent Paton Exhibit 11.

 

42. Currently, Kalorama Properties, LLC owns Lot 11, and the vacated portion of Park Avenue immediately south or southeast of Lot 11, in the Kalorama First Addition.  James T. Beaman is the sole member of Kalorama Properties, LLC.  The street address for Lot 11 and the vacated portion of Park Avenue is 6725 North Kalorama Road, Leesburg, Indiana.  This property has been owned by Beaman’s family since 1954, and he is familiar with its usage from 1954.  James T. Beaman testimony.

 

43. Park Avenue connects Kalorama Road to the shoreline of Lake Tippecanoe.  The unvacated portions of Park Avenue are used by the Claimants, the Respondents, and the general public for access between Kalorama Road and Lake Tippecanoe.  Testimonies of James T. Beaman, Elizabeth M. Plymate, and Robert Paton.  Park Avenue has never been improved and is today grass covered.  James T. Beaman testimony.  A true and accurate representation of the unvacated portions from Kalorama Road, looking generally westerly (and slightly southerly), is provided by Claimants’ Exhibit A-5:

 

 

44. Elizabeth M. Plymate owns Lot 12 in the Kalorama First Addition with her sister, Virginia M. Shaffer, and her mother, Shirley K. Meyers.  Lot 12 is immediately south or southeast of the unvacated portion of Park Avenue.  The property has been owned by her mother’s family since about 1912, and her first recollection of the area was from about 1958.  For as long as Plymate can remember, the family of the Paton Respondents had a pier extending into Lake Tippecanoe at Park Avenue.  Elizabeth M. Plymate testimony.

 

45. The Handi Spot[4] convenience store existed across Kalorama Road in the immediate vicinity of Park Avenue.  The store was a “restaurant counter” and “grocery store”.  In addition, the store “sold bait and things like that”.  Boaters on Lake Tippecanoe could dock on a small pier at the end of Park Avenue “and walk back to the Handi Spot to get a sandwich, or buy milk, or buy bait.”[5]  James T. Beaman testimony.

 

46. People came from Lake Tippecanoe and used the “Handi Spot pier to park there and walk down the access to get to the store.”  The Handi Spot pier was present in the 1950s and 1960s.  In addition, rental properties used a pier at the end of Park Avenue to access Lake Tippecanoe.  Plymate did not typically know the identities of persons who used Park Avenue.  She was unaware of anyone in her family telling a person that the person could not use the access.  Her belief was Park Avenue was a public way.  Elizabeth M. Plymate testimony.

 

47. Beaman never denied or granted permission to a person using Park Avenue because he understood the unimproved highway was public.  He observed the Paton Respondents, the Weir Respondent, and members of the general public use Park Avenue.  James T. Beaman testimony.

 

48. On cross-examination, Robert Paton testified he never prevented anyone from using Park Avenue to access the lake.

 

49. Since at least 1954, a pier or piers have extended from the unvacated portion of Park Avenue into Lake Tippecanoe.  A pier existing in 1954 was “fairly similar, maybe shorter than the one that’s there now.”  James T. Beaman testimony.

 

50. Robert W. Paton is the son of Amelia E. Paton, deceased, and is the personal representative for her estate.  Robert W. Paton testimony.

 

51. The Estate of Amelia E. Paton owns Lot 15, Lot 16, Lot 17, and Lot 18 in the Second Addition to Kalorama Park and Lot 1 in the Third Addition to Kalorama Park.  These five lots are known as “Kalorama Woods RV Park”.  In the early 1970s, the Kosciusko County Board of Zoning Appeals approved six spaces for rental.  The addresses for these spaces are on Kalorama Road, Leesburg.  Robert W. Paton testimony.

 

52. The Estate of Amelia E. Paton also owns Lot 9 and a triangular strip of Lot 8 in the Third Addition to Kalorama Park which is commonly known as the “Paton Rental”.  The Paton Rental currently “has a ‘For Sale’ sign in front of it.”  Robert W. Paton testimony and Respondent Paton Exhibit 2.

 

[VOLUME 13, PAGE 32]

 

53. The Estate of Amelia Paton until recently owned Lot 2 and Lot 3 in the Third Addition to Kalorama Park, also known as “Tiptoe Cottage”, with an address at 6766 Kalorama Road.  In the fall of 2011, this property was sold to Michael J. Sandberg and Sarah E. Sandberg.  On cross examination, Paton testified he told the Sandbergs, “There is some contention on this.  That because we have used it, we feel it’s legal to be able to continue to use, but I could not guarantee them anything.”  Robert W. Paton testimony.

 

54. Each of the lots described in Finding 51 through Finding 53 have been used by the Paton family as rental properties, and part of the rental fees were for the installation of a pier (the “Paton” pier) extending into Lake Tippecanoe from Park Avenue.  Robert W. Paton testimony.

 

55. The “Paton pier” is maintained by the Paton Respondents.  Robert Paton prepared a sketch of the Paton pier as it existed on August 9, 2011.  The Paton pier then consisted of nine sections with a total length of 100 feet.  At the lakeward end of the Paton pier, the water depth was 4 ½ feet.  The Paton pier extends from the approximate center of Park Avenue and is typical of other piers along this portion of Lake Tippecanoe.  The Paton pier was installed each summer from the early 1960s.  Paton’s recollection is that his father and the owners of the Handi Spot placed “one pier that we shared together.”  From the early 1970s, the Paton pier included nine sections.  Robert W. Paton testimony.

 

56. Robert Paton testified on cross-examination he believed the Order and Decree described in Finding 39 “solidified that we would be able to have piers out.”  Particular note was made of the last paragraph which stated:

 

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT that the defendants, Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King and Shirley Myers, be and they are herby perpetually enjoined from obstructing, infringing upon, or otherwise interfering with public rights in said Park Avenue as the same is herein adjudged located.

 

Paton testified when the Order and Decree was issued by the Kosciusko Circuit Court, “we had piers out there, and I would say that would enjoin them from interfering with us using that and putting out piers.”

 

57. On cross-examination, Robert Paton testified he believed Jack Saunders also had a right to place the Handi Spot pier “at that time”.

 

58. In about 2000, the Weir Respondent added sections to the Paton pier.  The Paton family objected, and Gary Weir removed the additional section.   The Paton family entered negotiations with Gary Weir for the development of a joint pier.  A draft settlement agreement was prepared but never executed.  Robert W. Paton testimony.

 

59. In 2005, the Weir Respondent placed a separate pier and began mooring boats in Lake Tippecanoe.  The pier contained three sections and has since been seasonally installed by the Weir Respondent (the “Weir pier”).  Robert W. Paton testimony and Elizabeth M. Plymate testimony.

 

60. The Paton Respondent acquiesced in the placement of the Weir pier.  “We said, ‘Well, yah, we’ll just let it be for now.’”  Robert W. Paton testimony.

 

61. On cross-examination, the Claimants’ attorney asked Robert Paton: “If John Smith from up the road says, ‘I want to put a pier out there.’ as Mr. Weir did, would he have a right to put a pier out there because he’s a member of the public?  Would he have that right?  This isn’t exclusive to you, is it?”  Paton answered, “Well, I don’t know.”

 

62. Paton Respondent Exhibit 1 provides a fair representation of the spatial relationships among parcels of real estate owned by the Claimants, the Paton Respondents, and the Weir Respondents, as well as the relationships of their parcels to Lake Tippecanoe and to Park Avenue.   Exhibit 1 colorized with yellow, and identified as “Paton”, lots owned by the Paton Respondents and described in Finding 51 through Finding 53.  The exhibit colorized with chartreuse, and identified as “Weir”, lots owned by the Weir Respondent.  The exhibit colorized with yellow, and identified as “Park Avenue, the unvacated portion of Park Avenue.  But for purposes of demonstration in these Findings, the administrative law judge recolorized the unvacated portion of Park Avenue with orange.  In addition, he colorized with blue Lot 11 and the vacated portion of Park Avenue, which are owned by Kalorama Properties, LLC.  He colorized Lot 12 owned by the Elizabeth M. Plymate, Virginia M. Shaffer, and Shirley K. Myers Revocable Living Trust with dark green.  Paton Respondent Exhibit 1, as augmented by the administrative law judge, is as follows:

 

 

 

63. Lot 11 and the vacated portion of Park Avenue abut Lake Tippecanoe.  Lot 12 abuts Lake Tippecanoe.  Lots owned by the Respondents Paton and by the Respondent Weir do not abut Lake Tippecanoe.

 

[VOLUME 13, PAGE 33]

 

C. Riparian Rights

 

64. Traditionally, riparian rights were associated with owners of land abutting a river or stream, while those within the shoreline on a lake or pond acquired littoral rights.  Indiana courts now use the term “riparian” to refer to both classes of ownership.  Zapffe v. Srbeny, 587 N.E.2d 177, 178 n. 1 (Ind. App. 1992).

 

65. Generally, a property owner whose property abuts a lake possesses certain riparian rights associated with ownership of the property.  Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. App. 2005).  Riparian rights are appurtenant to the shore land owned in fee title.  Watson v. Thibodeau, 559 N.E.2d 1206, 1208 (Ind. App. 1990).

 

66. Riparian rights of the owners of land fronting navigable waters are derived from common law as modified by statute.  Riparian rights do not necessarily constitute an independent estate and are not property rights per se.  They are licenses or privileges.  They constitute property rights of a qualified or restricted nature.  A person must have a property interest in the land appurtenant to the water before the person can acquire rights to use the water.  Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. App. 2010) and Ctr. Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 767-68 (Ind. App. 2008).

 

67. “The rights associated with riparian ownership generally include: (1) the right of access to navigable water; (2) the right to build a pier out to the line of navigability; (3) the right to accretions; and (4) the right to a reasonable use of the water for general purposes such as boating, domestic use, etc.”  Parkison v. McCue at 128.

 

68. For the portion of Lake Tippecanoe abutting Lot 11 and for the vacated portion of Park Avenue, Kalorama Properties, LLC is the riparian owner and has these riparian rights.

 

69. For the portion of Lake Tippecanoe abutting Lot 12, the Elizabeth M. Plymate, Virginia M. Shaffer, and Shirley K. Myers Revocable Living Trust is the riparian owner and has these riparian rights.

 

70. For the portions of Lake Tippecanoe abutting their respective properties, the Claimants generally enjoy the riparian rights enumerated in Finding 67.

 

71. Although riparian rights arise from the ownership of land that abuts a lake, a person may acquire a prescriptive easement in riparian rights.  In Bromelmeier v. Brookhart, 570 N.E.2d 90, 91-92, (Ind. App. 1991), the court “held that the dominant estate holder of a prescriptive easement may use the riparian rights of the servient tenant.”  If “adequately demonstrated, the purpose and intent to use the riparian rights of a servient tenant become part of an easement acquired by prescription.”  Id.

 

72. Even though Respondents do not abut Lake Tippecanoe, if adequately demonstrated, the purpose and intent to use the riparian rights of a servient tenant may become part of an easement which they acquire by prescription.[6]

 

 

D. Prescriptive Easements

 

73. Prescriptive easements are not favored in the law.  The person claiming a prescriptive easement must meet stringent requirements.  Carnahan v. Moriah Prop. Owners Ass’n, Inc., 716 N.E.2d 437, 441 (Ind. 1999). 

 

74. The Indiana Supreme Court set today’s standards for establishing a prescriptive easement, comparable to recently-established standards for establishing adverse possession, in Wilfong v. Cessna Corp., 838 N.E.2d 403, 406 (Ind. 2005):

 

FN5.  These four elements are established by clear and convincing proof of the following:

 

(1) Control-The claimant 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 “exclusive,” possession);

 

(2) Intent-The claimant 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 claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former “visible,” “open,” “notorious”, and in some ways the “hostile” elements); and

 

(4) Duration-the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).[7]

 

75. In Bass v. Salyer,, the Court of Appeals of Indiana reversed a lower court determination that a prescriptive easement was established for facts very similar[8] to those in this proceeding.  The lower court had concluded a party that placed piers in a public freshwater lake, where lake access was gained using a dedicated street, had established the necessary elements for a prescriptive easement.  The Court of Appeals ruled that, as a matter of law, a prescriptive easement was not established because the element of “intent” failed.

 

76.  The Bass court reflected at 966:

 

Intent reflects the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse.”  [Citation omitted.]  In this contest, intent is not subjective but is determined by objective, observable conduct measured against the applicable legal standard.  Here, the question presented is whether while the [party seeking to establish a prescriptive easement was] using a public easement over the Drive to access the lake, they perfected an adverse claim to a prescriptive easement over the Drive against Lot Owners.  We will also consider whether the…use of the Drive was exclusive.

 

77. The Bass court cited Brown v. Heidersbach, 172 Ind. App. 434, 360 N.E.2d 614, 618 (Ind. App. 1977) as standing for the proposition “that if an easement is enjoyed under a deed there can be no adverse enjoyment until the expiration of the right under the deed.”  The use would be permissive and not adverse.  Bass at 967.

 

[VOLUME 13, PAGE 34]

 

78. The Bass court concluded at 968:

 

The [party seeking to establish a prescriptive easement] would have had no right to enter upon the Drive were it not for the public easement.  We do not subscribe to the Trojan Horse argument that while the [party seeking to establish a prescriptive easement was] enjoying the use of the public easement, [its] permissive use concealed an adverse claim to a prescriptive easement over the same area.  Having used the public easement for the intended purpose, to access the lake, the [party seeking to establish a prescriptive easement] cannot demonstrate that [its] use was at the same time under a claim of right, exclusive, hostile, or adverse to the fee simple title of the Lot Owners.  [Citation omitted.]  Because the [party seeking to establish a prescriptive easement has] not shown adverse use, [it has] not shown an intent to use the Drive in a manner superior to the rights of all others, including the Lot Owners.

 

79. The Bass court held that where a party uses a public street to access a lake, the use is permissive.  The use of the public street is “a permitted use under the public easement.  A permissive use cannot be adverse so as to ripen into an easement by prescription.  [Citation omitted.]  A right shared with the public is, by definition, non-exclusive.”  If a use is “not adverse, the easement cannot be expanded by prescription into an exclusive easement.”  Where a person’s access to a lake is by a public street, the person does not have a prescriptive easement.

 

80. The Respondents have used the unvacated portion of Park Avenue to access Lake Tippecanoe.  This use is the same use as enjoyed by the general public for a public highway.  Persons other than the parties have used Park Avenue to access the lake. The use by the Respondents is permissive and not adverse.  The use does not satisfy the “intent” element for a prescriptive easement.  The Respondents have not established a prescriptive easement to the shoreline of Lake Tippecanoe.

 

 

E. Application of 1962 Decrees by the Kosciusko Circuit Court

 

81. Under the Lakes Preservation Act, the Commission has jurisdiction over the placement of piers and similar structures within the shoreline of a public freshwater lake, but jurisdiction regarding land use management outside the shoreline is the exclusive province of local government.  A county court and a county board of commissioners have jurisdiction over a roadway which terminates at the shoreline of a public freshwater lake.  When a navigation channel extends from the roadway into the lake, persons cannot unreasonably impede boating through the channel.  The Commission has jurisdiction over the navigation channel, but a circuit court, a superior court, or the county commissioners manage and can vacate the roadway, even though a consequence may be to negate the utility of the channel.  Pipp v. Spitler, et al., 11 Caddnar 39 (2007).

 

82. The Pipp decision is consistent with decisions from other States.  If a road is laid out or dedicated to a navigable waterway, the dedication runs to the shoreline but does not include the land under the water.  26 C.J.S. Dedications § 71 (2001) cited in Egenlauf & Heckman v. Peuquet, 12 Caddnar 295 (2011).

 

83. In 1962, the Kosciusko Circuit Court entered two decrees pertaining to the use of Park Avenue. 

 

84. On January 9, 1962, the Kosciusko Circuit Court entered an Order and Decree to identify the boundaries of Park Avenue.  In addition, “William J. Saunders, Harry V. Myers and George R. Paton [were] perpetually enjoined from moving the boundary line of said Park Avenue into and upon the private property of” Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King and Shirley Myers.  Also, “Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King and Shirley Myers [were] perpetually enjoined from obstructing, infringing upon, or otherwise interfering with public rights in said Park Avenue as the same is herein adjudged located.”  This Order and Decree identified no private property rights in favor of William J. Saunders, Harry V. Myers or George R. Paton and makes no mention concerning the placement of piers or other structures in Lake Tippecanoe.  Finding 39.

 

85. Subsequently, on March 26, 1962, the Kosciusko Circuit Court vacated part but not all of Park Avenue in response to a petition by Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King, and Shirley Myers.  Finding 40.

 

86. In considering pier placement within Lake Tippecanoe, the Commission is governed by the Kosciusko Circuit Court’s 1962 decrees.  Following the decrees, the Respondents enjoy the same rights as other members of the public.  They may exercise “public rights” in the unvacated portion of Park Avenue without interference by the successors of Harvey H. Murnan, Julius H. Beaman, Elizabeth Beaman, William Z. King and Shirley Myers.  But neither the January 9, 1962 decree nor the March 26, 1962 decree provides a legal foundation for the Respondents to place piers in Lake Tippecanoe. 

 

F. Lawful Nonconforming Use

 

87. The Paton Respondents claim the Paton pier qualifies as a lawful nonconforming use under Commission rules used to assist with implementation of the Lakes Preservation Act.

 

88. Although more commonly considered in the context of ordinances, the application of principles of nonconforming uses can arise in the context of rules and similar regulatory structures.  As applied to a rule, a nonconforming use is one that legally existed before the effective date of the rule, and that is permitted to continue subsequent to the enactment of the rule despite nonconformance.  Providing for nonconforming uses in the context of rules is harmonious with the principle of construction that, absent strong and compelling reasons, rules are given only prospective application.  DNR v. Freeman Orchard Assoc., Inc., 11 Caddnar 285, 287 (2008) citing Mann v. State Dept. of Highways, 541 N.E.2d 929, 936 (Ind. 1984).

 

89. The law does not generally favor a nonconforming use because it detracts from the purpose of the rule, which is to confine certain classes of uses and structures to certain areas.  Kosciusko County Bd. of Zoning Appeals v. Smith, 724 N.E.2d 279 (Ind. App. 2000); transfer denied 741 N.E.2d 1251.

 

90. Lawful nonconforming uses under the Lakes Preservation Act are governed by 312 IAC § 11-5-2.  As pertinent to this proceeding, the rule section provides:

 

Sec. 2. (a) A structure or facility that was lawfully placed before the effective date of a provision of:

(B) 312 IAC 11-4;

…which would be unlawful if placed after that date, is eligible for qualification under this section as a lawful nonconforming use.

(b) This subsection governs the establishment of a lawful nonconforming use as follows:

(1) A person who claims a lawful nonconforming use has the burden of proof for establishing:

(A) the existence of the use; and

(B) that the use was lawful;

when the new or amended statutory or rule section became effective….

(4) …[A] person may deliver a written request and supporting documentation in support of a claim to any lawful nonconforming use that arises under IC 14-26-2 or this article….  [A] person who does not deliver a request under this subdivision is not prohibited from asserting the benefits of a lawful nonconforming use as an affirmative defense or otherwise in a proceeding under IC 4-21.5….

 

[VOLUME 13, PAGE 35]

 

91. The Paton Respondents have the burden of proving the Paton pier qualifies as a lawful nonconforming use under 312 IAC § 11-5-2.

 

92. The Paton Respondents have timely raised the affirmative defense of lawful nonconforming use in this proceeding in satisfaction of 312 IAC § 11-5-2(b)(4).

 

93. The Paton pier is a “group pier” that would today require individual licensure under 312 IAC § 11-4-8 but which did not require individual licensure when originally placed by the Paton Respondents.  At all times pertinent to 312 IAC § 11, the Paton pier existed.  The Paton pier existed when 312 IAC 11-4 became effective.  The Paton Respondents have satisfied 312 IAC § 11-5-2(b)(1)(A).

 

94. The Paton Respondents have not shown the use of the Paton pier was “lawful” when 312 IAC § 11-5-2 became effective.  The Paton Respondents have no property interest in land appurtenant to Lake Tippecanoe where they placed the Paton pier.  The Paton Respondents have no interests in Park Avenue other than the interests of the general public.  The Paton Respondents have not shown they are riparian owners.[9]

 

95. The Paton Respondents also cite Abbs v. Town of Syracuse, 686 N.E.2d 928 (Ind. App. 1997) in support of their claim to a lawful nonforming use.

 

96. For consideration in Abbs v. Town of Syracuse was whether the dedication of a right-of-way easement was intended to convey, to a local unit of government, the ability to exercise riparian rights within a public freshwater lake at the shoreline where the easement terminated, including authority over the placement of piers.  The trial court determined the evidence supported a finding that the dedication was intended to convey riparian rights to the Town of Syracuse, including rights to place piers or to allow others to place piers.  The trial court determination was upheld on appeal.

 

97. No local unit of government is a party in this proceeding.  The rights of a local unit of government, along the shoreline where Park Avenue terminates on Lake Tippecanoe, are not adjudicated by this proceeding. 

 

98. No representative of a local unit of government provided testimony or an affidavit or affirmation in this proceeding.

 

99. The evidence does not support a finding that the Respondents have standing to claim the rights of a local unit of government or that the Respondents have derived riparian rights from a local unit of government. 

 

100. The Paton Respondents have not demonstrated they are entitled to relief based upon a lawful nonconforming use.

 

G. Remedy

 

101. The Claimants proved the Respondents do not own land abutting Lake Tippecanoe at the vicinity of Park Avenue.  They proved the Respondents are not riparian owners and do not enjoy riparian rights.  In the absence of riparian rights, the placement of piers by the Respondents is unlawful.

 

102. The Respondents should be ordered to remove any existing structures associated with the Paton pier and the Weir pier and to refrain from placing a pier, mooring buoy, or other structure in Lake Tippecanoe at the vicinity of Park Avenue.

 

103. The Claimants should be ordered to refrain from placing a pier, mooring buoy, or other structure in Lake Tippecanoe at the vicinity of Park Avenue that would impair public rights in the use of Park Avenue, including access to Lake Tippecanoe.

 

 

 



[1] The parties do not dispute that Lake Tippecanoe (also known as “Tippecanoe Lake”)  is a “public freshwater lake” as defined by IC § 14-26-2-3 and 312 IAC § 11-2-17 and subject to the Lakes Preservation Act.  In accord are Pier 343 and Muncie YMCA v. DNR, 12 Caddnar 312 (2011) and “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 4.

[2] As provided in IC 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent.  In 1988, the Commission adopted Caddnar as its index of agency decisions.

[3] Respondent Paton Exhibit 7 is a photocopy of what may have been a carbon copy or perhaps another photocopy.  Lettering on the document is blurred and particulars from the original, and perhaps most notably Arabic numerals, are likely to have been misinterpreted in this Finding.  Any application of the Order and Decree to usage of Park Avenue should be derived directly from the official records of the Kosciusko Circuit Court.  The document has sufficient resolution, however, for implementation of Commission jurisdiction in this proceeding.

[4] The spelling of the former convenience store was not provided in the testimony.  Other possibilities include “Handyspot” or “Handy Spot”.

[5] The court reporter has not been requested to prepare a transcript of the hearing.  If a witness is shown as quoted in these Findings, the statement is as nearly verbatim as could be determined by the administrative law judge.  In some instances a stutter or verbal misdirection may be omitted.  If a transcript is subsequently prepared that indicates different wording, the transcript shall be considered the official record and a quotation here as paraphrasing of witness testimony.

[6] An easement for the placement of piers may also be granted by a fee owner to another person.  If the intent of an easement is ambiguous, a hearing may be required to determine the intent.  Klotz v. Horn, 588 N.E.2d 1096, 1097 (Ind. 1990).  As established by the plat described in Finding 38, Park Avenue is among the streets “dedicated for public use for the purpose of public highways.”  In this proceeding, the evidence does support an easement in favor of the Respondents for the placement of piers.

[7] The Paton Respondents satisfied the “duration” element required to demonstrate a prescriptive easement for the Paton pier.  They have placed a similar or identical pier within Lake Tippecanoe at the end of Park Avenue in excess of 20 years.  The Weir Respondent has placed the Weir pier only since 2005 and has not satisfied the “duration” element.

[8] During closing arguments, the Weir Respondent characterized Bass as being “on all fours” with this proceeding.

[9] The Claimants and the Paton Respondent offered testimony at hearing with respect to excessive crowding occasioned by the placement of piers by the various Claimants and Respondents.  The testimony was not sufficient to render a disposition concerning allocation of space.  If the proceeding is remanded on a disposition the Paton Respondents have established their entitlement to riparian rights, the DNR should also be instructed to determine the appropriate placement of piers.