[CITE: Tersigni v. Osbon & Wright, 13 CADDNAR 60 (2012)]
[VOLUME 13, PAGE 60]
Cause #12-063W
Caption: Tersigni v. Osbon & Wright
Administrative Law Judge: Lucas
Attorneys: pro se (Tersigni); Lavendar (Osbon/Wright)
Date: October 1, 2012
FINAL SUMMARY JUDGMENT
(1) For matters in this proceeding within the jurisdiction of the Natural Resources Commission, the facts are not in material dispute and summary judgment is granted under IC § 4-21.5-3-23 and Trial Rule 56.
(2) Matthew James Tersigni and Teresa Tersigni have no property interest in the use of Beaver Dam Lake adjacent to the platted public road. They are without legal authority to place any pier or similar structure at this location.
(3) The pier and any associated structures placed in 2012 by Matthew James Tersigni and Teresa Tersigni encroach upon public access to Beaver Dam Lake and upon the use by Steven R. Osbon, Joyce Osbon, and the Donald and Ramona Wright Revocable Trust in exercise of their riparian rights. Matthew James Tersigni and Teresa Tersigni are ordered, by November 30, 2012, to remove permanently the pier and any associated structures.
(4) Matthew James Tersigni, Teresa Tersigni, Steven R. Osbon, Joyce Osbon, and the Donald and Ramona Wright Revocable Trust are each ordered, subsequent to November 30, 2012, to refrain from placing a structure in Beaver Dam Lake adjacent to platted public road and within the navigation channel.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Statement of Case and Jurisdiction
1. The proceeding was initiated on April 5, 2012, under Ind. Code § 4-21.5 (sometimes referred to as “AOPA”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 § Ind. Admin. Code 3-1 to assist with its implementation of AOPA, when Matthew James Tersigni and Teresa Tersigni (collectively, the “Claimants”) filed correspondence (the “Complaint”) with the Commission. The Complaint included several attachments.
2. The Complaint sought relief against Steven R. Osbon, Joyce Osbon (the “Osbons”), and the Donald and Ramona Wright Revocable Trust (the “Wrights”) with respect to the placement by the Claimants of a pier along the shoreline of Beaver Dam Lake, Kosciusko County, Indiana. The Osbons and the Wrights are collectively the “Respondents”. The Claimants and the Respondents are collectively the Parties.
3. Beaver Dam Lake in Kosciusko County is a “public freshwater lake” under Ind. Code § 14-26-2-3 and 312 Ind. Admin. Code § 11-2-17 and is subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Commission to assist with implementation of the Lakes Preservation Act. “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Second Amendment), Ind. Register, 20110601-IR-312110313NRA (June 1, 2011), p. 3.
4. 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 Department of Natural Resources 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).
5. 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).
6. The Lakes Preservation Act is derived from legislation originating in 1947. Significant statutory amendments were made in 2000, including the addition of IC § 14-26-2-23. The amendments clarified the Commission is responsible for implementing, by rule, a permitting program that applies within a public freshwater lake to both temporary and permanent structures. The Commission was also 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).
7. For most purposes, the Commission’s geographic jurisdiction under the Lakes Preservation Act is limited to the “shoreline or water line”, as described under IC § 14-26-2-4, and to within the lake. The Commission does not typically have jurisdiction[1] over disputes concerning usage landward of the shoreline. Burke’s Vinyl Seawalls & Reynolds v. DNR, 11 Caddnar 345, 348 (2008).[2] When the Parties identify disputes for areas outside the shoreline of Beaver Dam Lake, the disputes are outside Commission jurisdiction and are not discussed further here.
8. An administrative law judge was appointed to conduct this proceeding. He notified the Parties of the initial prehearing conference. Included with the notification was a copy of the Complaint and its attachments. On May 25, 2012, the Parties participated in the prehearing conference.
9. The Commission has jurisdiction over the subject matter and over the persons of the parties.
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B. Summary Judgment under IC 4-21.5-3-23 and Trial Rule 56
10. During the initial prehearing conference, the Parties agreed and were then ordered to brief and serve summary motions based on the following schedule:
(1) The Respondents shall file and serve any motion to dismiss or motion for summary judgment by July 9, 2012.
(2) The Claimants shall file and serve any response to a motion filed under Part (1) by August 8, 2012.
(3) The Respondents shall file and serve any reply to a response filed under Part (2) by August 22, 2012.
11. On July 9, 2012, the Respondents filed and served timely the “Respondent’s Motion for Summary Judgment”, the “Respondents’ Memorandum in Support of Their Motion for Summary Judgment”, and the “Respondents’ Designation of Evidence”.
12. The Claimants have not responded in any way to the filings described in Finding 11.
13. A telephone status conference was scheduled for September 5, 2012. The Respondents’ attorney participated by telephone. The Department of Natural Resources appeared in person through its attorney. The administrative law judge made a call to the telephone number provided by the Claimants, but the call was forwarded to an answering machine. The answering machine reported the mailbox for Teresa Tersigni was full so a message could not be left. “Report of Telephone Status Conference” (September 5, 2012).
14. The proceeding is ripe for consideration of summary judgment as requested by the Respondents.
15. IC § 4-21.5-3-23 governs summary judgment under AOPA and provides:
(b) Except as otherwise provided in this section, an
administrative law judge shall consider a motion filed under subsection (a) as
would a court that is considering a motion for summary judgment filed under
Trial Rule 56 of the Indiana Rules of Trial Procedure.
(c) Service of the motion and any response to the
motion, including supporting affidavits, shall be performed as provided in this
article.
(d) [IC § 4-21.5-3-28 and IC § 4-21.5-3-29] apply to an
order granting summary judgment that disposes of all issues in a proceeding.
16. Trial Rule 56 of the Indiana Rules of Trial Procedure provides:
(A) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty [20] days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
(B) For defending party--When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.
(C) Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The court may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.
(D) Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(E) Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.
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(F) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(G) Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.
(H) Appeal-Reversal. No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court.
(I) Alteration of Time. For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.
17. Summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990).
18. In determining if a genuine issue of material fact exists to preclude summary judgment, all doubts must be resolved against the nonmoving party. Facts set forth by a party opposing the motion must be taken as true. Terry v. Indiana State University, 666 N.E.2d 87 (Ind. App. 1996).
19. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.” Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993). “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).
20. Supporting and opposing summary judgment affidavits must present admissible evidence that follows substantially the same form as though the affiant were giving testimony in court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193 (Ind. App. 2010).
21. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).
22. A party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing. Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001). See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).
23. Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue. Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).
C. Undisputed Facts and Applicable Law Pertaining to Usage of Beaver Dam Lake near Platted Public Road
24. Since 2001, the Osbons have owned Lot Number 54 in Bensart’s North Shore Park (the “Osbon real estate”), which is commonly known as 9279 South Julia Street, Claypool, Indiana 46510. Affidavit of Steven R. Osbon and Joyce Osbon attached as Exhibit A to “Respondents’ Designation of Evidence” (the “Osbon Affidavit”), p. 1, ¶2.
25. From 1979 in their individual capacities, Donald and Ramona Wright owned Lots 69 and 70 in Bensart’s North Shore Park (the “Wright real estate”), which is commonly known as 9271 South Julia Street, Claypool, Indiana 46510. Since 2003, the Donald and Ramona Wright Revocable Trust owned the Wright real estate. Affidavit of Don Wright and Ramona Wright attached as Exhibit B to “Respondents’ Designation of Evidence” (the “Wright Affidavit”), p. 1, ¶2.
26. The Osbon real estate and the Wright real estate both abut Beaver Dam Lake. Plat of Bensart’s North Shore Park, attached as Exhibit A to Osbon Affidavit (the “BNSP Plat”).
27. Riparian rights were associated traditionally 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).
28. The Osbon real estate and the Wright real estate include riparian rights along their shorelines and within the adjacent waters of Beaver Dam Lake. The Osbons and the Wrights are riparian owners.
29. A property owner whose property abuts a public freshwater lake possesses certain riparian rights associated with ownership of the property. These typically include: (1) access to the public water; (2) the placement of a pier to the line of navigability; (3) the use of accretions; and, (4) reasonable use of the water for purposes such as boating and domestic use. 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).
30. 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).
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31. The Claimants own Lot 57 in Bensart’s North Shore Park, which is commonly known as 9278 South Verna Street, Claypool, Indiana 46510. They also own adjacent real estate which is commonly known as 9282 South Julia Street, Claypool. The real estate at 9278 South Verna Street and the real estate at 9282 South Julia Street are collectively the “Tersigni real estate”. The Complaint.
32. The Tersigni real estate does not abut Beaver Dam Lake. The Claimants are not the owners of riparian property. The Complaint; the BNSP Plat, and the Google earth map attached as Exhibit B to the Wright Affidavit.
33. The absence of riparian ownership is not necessarily dispositive of the right to place a pier in a public freshwater lake. 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. A riparian owner (the servient estate) may grant an easement, which authorizes the placement of a pier, to a property that does not abut the lake (the dominant estate).
34. The record offers no suggestion the Claimants have the dominant estate for access Beaver Dam Lake. Through an express easement, the Claimants do not have a legal right to use the riparian rights of a servient tenant.
35. Both the Osbon real estate and the Wright real estate abut an unimproved 20-foot wide platted public road (the “platted public road”) that runs predominantly east-west and terminates on the west at the shoreline of Beaver Dam Lake. The platted public road allows public access to Beaver Dam Lake from Lydia Drive. The BNSP Plat; the Complaint; newspaper article attached to the Complaint; and a “Notice of Public Hearing upon Petition for Vacation of Public Road”(September 7, 2010) in the matter of the Petition of Steven R. Osbon before the Koscuisko County Board of Commissioners attached to the Complaint.
36. Osbon petitioned the Kosiciusko County Board of Commissioners to vacate the platted public road. On or about November 23, 2010, the Kosciusko County Commissioners denied the petition and continued the legal existence of the platted public road. The Complaint; Correspondence from Matthew M. Sandy, Kosciusko County Area Plan Commission (October 8, 2010) attached to Complaint; newspaper article attached to Complaint; and Osbon Affidavit, p. 2, ¶5.
37. The Claimants were and continue to be among members of the general public who may use the platted public road to access Beaver Dam Lake. But the Claimants have no greater right than another member of the public to use the platted public road.
38. For the last seven years, the Claimants have placed a single pier (the “Tersigni pier”) at the west end of the platted public road and within Beaver Dam Lake. Osbon Affidavit, p. 2, ¶6 and ¶8; Wright Affidavit, p. 2, ¶5 and ¶7; and, the Complaint, p. 2.
39. Seven years of usage does not satisfy the requisite 20 years for a prescriptive easement. Bromelmeir v. Brookhart, 570 N.E.2d 90 (Ind. App. 1991) and Wilfong v. Cessna Corp. 838 N.E.2d 403 (Ind. 2005).
40. Even if the Claimants could satisfy the 20-year duration required to establish a prescriptive easement, use of the platted public road would likely be considered “permissive” and inadequate to establish a prescriptive easement. Bass v. Salyers, 923 N.E.2d 961 (Ind. App. 2010) cited by the Commission as controlling in Plymate v. Paton and DNR, 13 Caddnar 28 (2012). In Plymate, a non-riparian owner had used a public road in excess of 30 years to access a public freshwater lake for the placement of a pier. The usage was found to be permissive and not to establish a prescriptive easement.
41. The Claimants are not riparian owners. They are not the beneficiaries of an express easement or a prescriptive easement from a riparian owner. They do not have a property interest in the land appurtenant to Beaver Dam Lake to acquire private rights to use the water. The Claimants lack authority to place the Tersigni pier.
42. The waters of Beaver Dam Lake, which are adjacent to the western end of the platted public road, provide a navigation channel. If a public road is dedicated to a public freshwater lake, the dedication runs to the shoreline but does not include the land under the water. 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. Plymate v. Patton at p. 34 citing Pipp v. Spitler, et al., 11 Caddnar 39 (2007); 26 C.J.S. Dedications § 71 (2001); and Egenlauf & Heckman v. Peuquet, 12 Caddnar 295 (2011).
43. The Tersigni pier obstructs and encroaches on the public’s access from the platted public road to the adjacent portions of Beaver Dam Lake. Osbon Affidavit, p. 2, ¶9 and Wright Affidavit, p. 2, ¶8.
44. The Tersigni pier encroaches on the Osbon real estate and exercise by the Osbons of their riparian rights within Beaver Dam Lake. Osbon Affidavit, p. 2, ¶10.
45. The Tersigni pier encroaches on the Wright real estate and exercise by the Wrights of their riparian rights within Beaver Dam Lake. Wright Affidavit, p. 2, ¶9.
46. For matters within the Commission’s jurisdiction, the facts are not in material dispute. The Claimants have no property interest in the use of Beaver Dam Lake adjacent to the platted public road. The Claimants are without legal authority to place any pier. The Tersigni pier encroaches upon public access to Beaver Dam Lake and upon the use by the Osbons and by the Wrights in exercise of their riparian rights. The Claimants should be ordered to remove permanently the Tersigni pier and any structures associated with the pier and to refrain from placing another pier or structure at the site. All Parties should be ordered to refrain from placing a structure in Beaver Dam Lake adjacent to platted public road and within the navigation channel. Summary judgment should be granted accordingly under IC § 4-21.5-3-23 and Trial Rule 56.
[1] An exception under IC 14-26-2-23(a)(2) applies for a “wall” that is constructed within ten feet landward of the shoreline. The exception is not at issue in this proceeding.
[2] As provided in IC § 4-21.5-3-32, an agency is required to index final decisions and may rely upon indexed decisions as precedent. In 1988, the Commission adopted Caddnar as its index of agency decisions.