[CITE: Cress v. Byrer (Remand), 14 CADDNAR 81 (2016)]

 

[VOLUME 14, PAGE 81]

 

Cause #: 12-192W

Caption: Cress v. Byrer (Remand)

Administrative Law Judge: Jensen

Attorneys: Cress; pro se (Schultzes); Kuchmay (Byrer); Wyndham (DNR)

Date: April 15, 2016

 

 

[NOTE: THIS FINAL ORDER RESULTED FROM STEUBEN CIRCUIT COURT DECISION IN CRESS v. DNR and BYRER, 76C01-1410MI-335, WHICH REMANDED THE NRC’S AUGUST 29, 2014 FINAL ORDER.  (SEE CRESS v. BYRER & DNR, 13 CADDNAR 279 (2014))]

 

 

FINAL ORDER FOLLOWING REMAND FROM JUDICIAL REVIEW

 

The following orders apply to Lucy V. Cress, Robert A. Schultz, Barbara J. Schultz, John Byrer, Sheri Byrer, and their heirs and assigns, and upon recordation with the Recorder of Steuben County, would apply to subsequent owners of Lot 23, Lot 24, and Lot 38 of Wilder’s Addition to Spring Bank.  The orders also apply to the Department of Natural Resources with respect to implementation of IC § 14-26-2, 312 IAC § 11, and to statutes or rules that may be subsequently derived from them:

 

(A) John Byrer and Sheri Byrer must not place a structure or moor a boat in Lake George adjacent to Lot 23 or Lot 24 unless consistent with the following: The Byers shall not encroach on the riparian zone of the Schultzes as identified in Finding 13.  The Byers may place a pier, boat lift, or similar structure used in the exercise of dock privileges a reasonable distance into Lake George that is no less than one foot south of the common riparian line between Lot 23 and Lot 24.  The Byers must not place a structure north of this structure.  The Byers must not place or authorize a pier or another structure and must not moor or authorize the mooring of a boat more than eight feet south of the common riparian line between Lot 23 and Lot 24.

 

(B)  Robert A. Schultz and Barbara Schultz must not place a structure or moor a boat within five feet north of the common riparian line between Lot 23 and Lot 24.

 

(C)  Lucy V. Cress must not place or authorize a pier or another structure or moor or authorize the mooring of a boat within 18 feet south of the common riparian line between Lot 23 and Lot 24.

 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Statement of the Proceeding and Jurisdiction

 

1. On October 30, 2012, Lucy V. Cress (“Cress”) filed a “Temporary Structure Dispute/Complaint” (the “Cress Complaint”) with the Natural Resources Commission (the “Commission”) in which she asserted a grievance against John Byrer and Sheri Byrer (the “Byrers”). 

 

2. Also on October 30, 2012, Robert A. Schultz and Barbara J. Schultz (the “Schultzes”) filed correspondence (the “Schultzes Complaint”) in which the Schultzes asserted a grievance against the Byrers.  

 

3. Cress owns real estate at 95 Ln. 130A Lake George, Fremont, Indiana (the “Cress Property”); the Schultzes own real estate at 140 Ln. 130A Lake George, Fremont, Indiana (the “Schultzes Property”); and, the Byrers own real estate at 140 Ln. 130A Lake George, Fremont, Indiana (the “Byrers Property”).   The Cress Property includes on its west side approximately 66 feet of frontage along Lake George within Lot 23 in the Plat of Wilder’s Addition to Spring Bank in Jamestown Township of Steuben County (“Lot 23”).  The Schultzes Property is to the north in Lot 24 and shares a common boundary with the Cress Property.  The Byers Property includes Lot 38, and it is east of the Cress Property and across Lane 130 A Lake George (“Lot 38”).  The Byers Property was granted easement rights to Lake George by a previous owner of the Cress Property.

 

4. Lake George in Steuben County is a “public freshwater lake” as the phrase is defined at Ind. Code § 14-26-2-3 and 312 Ind. Admin. Code § 11-2-17 and is subject to IC § 14-26 (the “Lakes Preservation Act”).  Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Second Amendment), Indiana Register, 20110601-IR-312110313NRA (June 1, 2011), p. 8.  The Commission adopted rules at 312 IAC § 11 to assist with administration of the Lakes Preservation Act. 

 

5. The Cress Complaint and the Schultzes Complaint describe disputes regarding the exercise of riparian rights by the Byrers for a portion of Lake George in Steuben County, Indiana.   

 

6.  The same administrative law judge was appointed to consider the Cress Complaint and to consider the Schultzes Complaint.  During the initial prehearing conferences held concurrently on January 25, 2013 to consider the Cress Complaint and the Schultzes Complaint, Cress, the Schultzes, and the Byrers agreed to consolidate the two complaints into this single proceeding.  Cress and the Schultzes are collectively the “Claimants”.  The Byrers are the “Respondents”.

 

7. During the initial prehearing conference, Cress moved to add the Department of Natural Resources (the “DNR”) as a party.  The DNR responded that particularly if mediation were to occur, the inclusion of DNR as a party might be well-considered.  The Byrers did not object to inclusion of the DNR, and the DNR was added as a party.  The DNR is the “Agency Respondent”.  The Claimants, the Respondents, and the Agency Respondent are collectively the “Parties”.  Each of the Parties was present during the initial prehearing conference either in person or through an attorney.

 

8. The Lakes Preservation Act places full power over public freshwater lakes in 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 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). 

   

9. 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.  Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d 1068, 1075 (Ind. App. 2012) and Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).

 

10. The Lakes Preservation Act is derived from legislation originating in 1947.  Statutory amendments made in 2000 included the addition of IC § 14-26-2-23.  The amendments clarified the Commission is responsible for adopting rules to help implement a licensure program that includes temporary piers.  The Commission is 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).

  

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

 

[VOLUME 14, PAGE 82]

 

Delineation of the Riparian Zones of the Cress Property and of the Schultzes Property

 

12. Where the shoreline approximates a straight line, and where the onshore property boundaries are approximately perpendicular to this line, the boundaries of riparian zones are determined by extending the onshore boundaries into the public waters.  Bath v. Courts, 459 N.E.2d 72, 73 (Ind. App. 1984) and the “second principle” in Information Bulletin #56 (Second Amendment), Indiana Register, 20100331-IR-31200175NRA (March 31, 2010), p. 3. 

 

13. The Parties stipulated the second principle delineates properly the common boundary between the riparian zones of the Cress Property and of the Schultzes Property.[1]  “Entries Regarding Identification of Riparian Zones of Cress and the Schultzes and Availability of Sandra Jensen to Serve as Mediator” (April 4, 2013).  The shoreline along the Cress Property and the Schultzes Property approximates a straight line, and their common onshore property boundary is approximately perpendicular to the shoreline.  Use of the second principle is an appropriate delineation, and the Parties’ stipulation is approved. The boundary of the riparian zone between the Cress Property and the Schultzes Property is determined by extending their common onshore boundary in a straight line into Lake George.

 

Adjudication of Riparian Interests

 

14. The Claimants are riparian owners.  The Byers are not riparian owners but have an easement across the Cress Property.  The Byers hold the dominant estate and Cress the servient estate.  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 the Klotz court at 1097. 

 

15. The intentions of the riparian owner who originally 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.  Related documents are construed in pari materiaCharles & Miller v. Dyer, 13 Caddnar 246, 250 (2014).[2]

  

16. Clear and unambiguous language controls.  “[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. 

 

17. The record of title in this proceeding is extensive.  Aspects of grantor intent are unambiguous and others are ambiguous.

 

18. In 1929, Alline Buck Bender (“Bender”) received warranty deeds to both Lot 23 and Lot 38. 

 

19. In 1942, Bender conveyed a portion of Lot 23 to Phil S. Morse.  She included a conveyance of the following easement or passway:

 

Also, conveying an easement or passway 6 feet in width off the north side of the east part of said Lot #23 extending from the land above described to the street or roadway along the east side of said Lot #23….

Excepting an easement or passway 6 feet in width off the north side of the above described premises extending from the east 65 feet of said lot to the water front of Lake George for the use of the owners or tenants of the cottages located on the east part of said Lot #23 and on Lot #38 of said Plat.

Also reserving the docking privileges for two boats at the northwest part of said Lot #23 for the owners or tenants…of Lot #38 of said Plat.

Respondent Exhibit B and Exhibit C.

 

20. In 1942, Bender conveyed to H. Poast the east end of Lot 23, together with a conveyance, as follows:

 

The east 65 feet, east and west, off the entire east end of Lot numbered 23…, excepting an easement or passway six feet in width off the north side of the above described premises for the use of owners or tenants of cottage on the west portion of said Lot #23 and the owners or tenants of cottage on Lot #38 of said Plat.  Also conveying an easement or passway 6 feet in width off the north side of the west part of said Lot #23 extending from the land above described to the water front of Lake George; also docking privileges for two boats at the northwest part of said Lot #23.

 

21. Also in 1942, Bender conveyed Lot 38 to Arthur and Bertha Sanders with the following easement or passway:

 

Lot numbered thirty-eight (38)…according to the recorded plat thereof.

Also, an easement or passway six feet in width extending from the street or road on the west side of said Lot #39 to the water front of Lake George, said easement or passway being off the north side of Lot #23….

Also conveying a dock privilege for two boats off the northwest part of Lot #23 in said Addition for the owner or tenant of the cottage located on said Lot #38.

Using the same description, Lot 38 passed through a chain of title and then to Daniel and Nancy Vail in 1985.  Respondent Exhibit Q.

 

22. In 1992, Nancy Vail, an unmarried widow, conveyed Lot 38 to John H. Byrer and Sarah L. Hull as follows:

 

Lot numbered Thirty-eight (38) in the Plat….

Also an easement 6.0 feet in width off from the North side of Lot numbered Twenty-three (23)…, together with dock privileges [as described in Finding 21].

 

23. A conceptual rendering of the site in question, without identification of riparian zones or non-riparian interests within Lake George, is colorized and identified as Exhibit “C” in the “Respondents’ Post-Trial Brief”:

 

 

http://www.in.gov/nrc/decision/images/12-192w.v14_files/image001.gif

 

[VOLUME 14, PAGE 83]

 

24. The grantor intent was unambiguous in that a six-foot wide easement was established along the northern border of Lot 23, for the benefit of owners of the eastern portion of Lot 23 and the owners of Lot 38, to access Lake George.  The grantor intent was also unambiguous in that the owners of the eastern portion of Lot 23 were granted docking privileges for two boats, and the owners of Lot 38 were granted docking privileges for two boats, off the northwest part of Lot 23.  In its “Answer, Affirmative Defenses & Counterclaim”, the Byrers assert “a deeded right for a pier and two boats….”

 

25. The grantor intent was ambiguous in that the geographic boundaries of the docking privileges within Lake George were not identified.  Many of the decisions cited by Cress or the DNR resolve ambiguity for situations when an easement of a stated width (for examples, six feet or 15 feet) are not accompanied by a separate grant identifying dock privileges within another more general but potentially larger area.  Here that area is defined by the grantor as “the northwest part of Lot #23”. 

 

26. Regardless of intent, the grantor was limited by two principles of law.  These principles also govern what a grantee may receive.  Regardless of grantor intent, these principles restrict what the Byrers may place within Lake George.

 

27. The first restriction is that the Byrers hold the dominant estate and Cress holds the servient estate for the riparian zone derived from Lot 23.  An easement may encumber a riparian zone but does not form a separate riparian zone.  Kranz v. Myers Subdivision Owners, 973 N.E.2d 615, 618 (Ind. App. 2012). The Schultzes have riparian rights derived from Lot 24.  The Byers and Cress share one riparian zone and share riparian rights within a portion of the zone.  The Schultzes have a separate riparian zone.  Finding 12 and Finding 13.  The grantor had no authority to give and the Byers could not receive riparian rights derived from Lot 24.

 

28. The second restriction is that a trust exists on a public freshwater lake for which the State of Indiana is the trustee.  The DNR is the agency primarily responsible for administering the trust.  The Lakes Preservation Act places full power of public freshwater lakes in the State to hold in trust for all Indiana citizens to preserve natural scenic beauty and for recreational purposes, including boater and swimmer safety.  Finding 8.  Usage by a riparian owner or an easement received from a riparian owner cannot violate the public trust.

 

29. Within these two restrictions, ambiguity in an easement may be derived from extrinsic and parole evidence.  Klotz cited previously and Finding 16. 

 

30. Here the Parties at hearing provided a thorough and extensive history of the usage of the waters of Lake George, generally, as well as of the particular site in question.  With the exception of use of “double boats” which may have been unique to Lake George in the 1940s, the history is typical of use of public freshwater lakes in Northern Indiana during the 20th Century and early 21st Century.  Usage has become more crowded over the last 70 years with larger and greater numbers of moored boats.  The specifics of structural placement and mooring boats have been dynamic.  As boat and land ownership changed, so did pier configurations.

 

31. Boat owners at the site have sometimes expanded their own use with little consideration for their neighbors, the riparian rights of others, or the interests of the general public.  But “[f]irst in time first in right is not a viable factual or legal principle for determining the rights of riparian owners or those of the public on the waters of public freshwater lakes.”  Island Prop. Owners Ass’n v. Clemens and DNR, 12 Caddnar 56, 68 (2009).  Placing piers and mooring boats is not a superior purpose to leaving waters unimpeded.  That a riparian owner elects to leave a riparian zone open is not an invitation to another person to moor a boat.  Mooring a boat in the riparian zone of another does not typically vest a right the boat owner.  “Recreational use (especially of water which leaves no telltale path or road)…seems…likely to be permissive” and not actionable to establish a property right in the user.  Carnahan v. Moriah Property Owners Ass’n, 716 N.E2d 487 (Ind. 1999).

 

32. A factual constant is difficult to identify in this proceeding.  But the Byrers and their predecessors in interest have commonly used more than the six feet of lake waters that are immediately adjacent to the six-foot wide easement.  Even in the 1940s when testimony supports a finding that two-foot wide piers were not uncommon, the modest “double boat” was more than four feet wide.  A double boat and a pier would have encumbered more than six feet of shoreline.  Today piers are typically three feet wide, and some types of boats are commonly eight feet wide.  The Byers and their predecessors have placed piers on both sides of a three-foot wide pier.  The parol evidence is that use by the Byers and their predecessors in interest has commonly exceeded six feet in width.

 

33. If the grantor had intended the lake space for docking to be the same as the easement, the grantor could have specified a width or six feet or at least written nothing more than that docking was available.  The use of additional language indicates the grantor had something more in mind.  The presumption is that parties intend for every part of an easement to have some meaning, and a construction is favored that reconciles and harmonizes the entire document.  Parkinson v. McCue, 831 N.E.2d 118, 128 (Ind. App. 2005).  The grantor intent in using the phrase “off the northwest part of Lot #23” is ambiguous, but parol evidence supports a finding the use of a space wider than six feet was anticipated.  “Any doubt or uncertainty as to construction of the language of the easement will ordinarily be construed in favor of the grantee.”  Rehl v. Billetz, 963 N.E.2d 1, 7 (Ind. App. 2012) citing McCauley v. Harris, 928 N.E.2d 309, 314-315 (Ind. App. 2010).

 

34. John Byrer testified at hearing that he could exercise the boating rights derived from the dominant estate for Lot 23 with a shoreline width of 13 or 14 feet. 

 

35.  To grant the Byrers the right to use 13 or 14 feet of the shoreline of Lot 23 unnecessarily burdens the servient to an extent greater than was contemplated by the May 19, 1942 conveyance by Bender.

 

36.  The common usage of the time being the construction of piers two feet in width and the mooring of doubleboats having a maximum width of five feet more closely aligns with the Byrers right to use a maximum width of seven feet off the northwest part of Lot 23’s shoreline for docking boats.

 

37. The Byers must not encroach on the riparian zone of the Schultzes.  No other Party objected to their placement of a pier along the common riparian line between the Byrers and the Schultzes.  The Byers should be authorized to place a pier extending a reasonable distance into Lake George that is no less than one foot south of the common riparian line.  No structure should be placed and no boat should be moored within one foot south or within five feet north of the common riparian line.

 

38. Subsequent to entry by the administrative law judge of the Findings of Fact and Conclusions of Law with Nonfinal Order, Cress moved for a more definite statement regarding the ability of the Byrers to maintain a boatlift, and the Byrers responded to the motion.  For consideration is an easement conferring docking privileges.  As applicable to this proceeding, a “drydock…is a…vessel that can be floated to allow a load to be floated in, then drained to allow that load to come to rest on a dry platform.”  A “boat lift” is a form of floating drydock that is commonly used in private marinas to keep boats out of the water while not in use.[3]  Piers and boatlifts are structures used to exercise docking privileges.  See, generally, Scharlach v. Doswell, 11 Caddnar 420 (2008).  The use of a boatlift is as much the exercise of a docking privilege as is the use of a pier.

 

[VOLUME 14, PAGE 84]

 

39. The Byrers should be authorized to moor two boats in a manner that conforms to the requirements of the previous Findings.  The Byrers should not place or authorize a pier or another structure and should not moor or authorize allow the mooring of a boat more than eight feet south of the common riparian line between Lot 23 and Lot 24.

 

40. Cress should not place or authorize a pier or another structure or moor or authorize the mooring of a boat within 18 feet south of the common riparian line between Lot 23 and Lot 24.  The limitation is an appropriate consequence of the phrase “at the northwest part of Lot #23”.

 

Disposition of Affirmative Defenses

 

41. The Byrers asserted several affirmative defenses or counterclaims.  In their “Answer, Affirmative Defenses & Counterclaim”, they raise several equitable principles that they assert bar the claims by Cress.  These included waiver, estoppel, laches, and acquiescence.  In her “Answer and Affirmative Defenses”, Cress mirrors the same equitable claims to bar relief sought by the Byrers, and she adds unclean hands. 

 

42. A person seeking the benefit of an affirmative defense has the burden of proof.  Many affirmative defenses invoke equitable principles. Trial Rule 8 applied through 312 IAC § 3-1-4.  Belcher & Belcher v. Yager-Rosales, 11 Caddnar 79 (2007).  Equitable principles are diverse and typically require the satisfaction of multiple elements.  Town of New Chicago v. City of Lake Station, 939 N.E.2d 638 (Ind. App. 2010).  Other identified affirmative defenses (such as the Byrers claims they are merely seeking to defend deeded rights or the Cress claim the Byrers are limited to the use of six feet of frontage) are restatements of claims otherwise addressed here.  Except as considered previously in this order, the evidence does not support a disposition upon the affirmative defenses raised by either the Byrers or Cress. 

 

43. No relief is granted to either Cress or to the Byrers based on claims made which are particular to their affirmative defenses.