[CITE: Hodges v. Lampkin & Miller, 15 CADDNAR 1 (2018)]
[VOLUME 15, PAGE 1]
Cause #: 17-061W
Caption: Hodges v. Lampkin & Miller
Administrative Law Judge: Jensen
Attorneys: pro se (Hodges); Holmes (Lampkin)
Date: February 6, 2018
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER ON PETITIONER’S MOTION FOR SUMMARY JUDGMENT
75. In this instance there exists no genuine issue of material fact and the Petitioner, Rebecca Hodges, is entitled to judgment as a matter of law.
76. The Respondents, Scott Lampkin and Mary Lampkin, are order to remove the pier and any other structures associated with the pier including any moored boat from the shoreline and the waters of Beaver Dam Lake lakeward of the Subject Path.
77. The Respondents, Scott Lampkin and Mary Lampkin, are ordered to permanently refrain from placing or maintaining any pier or other structure as well as refrain from mooring a boat on the shoreline or within the waters of Beaver Dam Lake lakeward of the Subject Path.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jurisdiction and Case Summary
1. On May 30, 2017, the Petitioner, Rebecca Hodges (Hodges), filed correspondence with the Natural Resources Commission (Commission) seeking administrative review associated with the installation of a pier by the Respondents, Scott and Mary Lampkin (collectively “the Lampkins”), who Hodges referred to as “back lot owners”. Hodges “request[ed] the pier and the boat be removed from this 6 foot plotted area, which is located between Joe and Jeremy Miller’s property at 9264 S. Amanda Dr. Claypool, IN 46510 and my property at 9270 S. Amanda Dr. Claypool, IN 46510.” [1] Hodges alleged that her real property, the real property owned by the Millers, and the 6 foot area on which the Lampkins have installed their pier, are located adjacent to the shoreline of Beaver Dam Lake in Kosciusko County.
2. Administrative Law Judge (ALJ) Sandra L. Jensen was appointed to preside.
3. Beaver Dam Lake, located in Kosciusko County is a public freshwater lake. I.C. 14-26-2-3; 312 IAC 11-2-17; “Listing of Public Freshwater Lakes, Information Bulletin #61 (Seventh Amendment), http://www.in.gov/legislative/iac/20170531-IR-312170269NRA.xml.pdf (November 27, 2017).
4. The Commission was required to establish by administrative rule a process “for the mediation of disputes among persons with competing interests” to facilitate settlement of or provide for the Commission’s determination of the issues in dispute. I.C. 14-26-2-23(e). Those administrative rules are codified at 312 IAC 11-1-3.
5. In this instance, the Commission is the ultimate authority. 312 IAC 3-1-2; I.C. 4-21.5-1-15.
6. The Commission has jurisdiction over the subject matter and the parties to this proceeding.
7. A prehearing conference was conducted on July 27, 2017. The parties offered additional insight regarding their respective positions and it was determined prudent to join Jeremy Miller and Joseph Miller (collectively “the Millers”), as parties to the instant proceeding. All parties, including the Millers, were notified that a status conference, which would also serve as a prehearing conference for the Millers, was scheduled to occur by teleconference on August 24, 2017. The Millers were ordered to provide a telephone number at which they could be contacted by ALJ Jensen to participate.
8. During the prehearing conference Hodges and the Lampkins agreed that all pleadings and documents would be filed with the Commission and served upon other parties by email. It was also agreed that all Commission issued notices, orders and other documents would be issued by email. Because the Millers not a party at that time of the prehearing conference, and have never participated or appeared in this proceeding, all notices and all service of pleadings have been made upon the Millers by United States First Class Mail.
9. On August 8, 2017, Counsel, David R. Holmes, entered an appearance on behalf of Hodges. The Lampkins have proceeded without counsel.
10. The telephone status conference was attempted on August 24, 2017. The Millers had not, as of August 24, 2017, provided a telephone number as ordered and the ALJ’s attempts to contact Mr. Holmes, Hodges’ counsel of record, and the Lampkins failed. ALJ Jensen rescheduled the telephone status conference for September 20, 2017 and once again ordered the Millers to provide a telephone number to facilitate their participation.
11. On September 8, 2017, Hodges, by counsel, filed her Motion for Summary Judgment.
12. The Millers failed to provide a telephone number at which they could be contacted to participate in the September 20, 2017 telephone status conference. A Notice of Proposed Default was issued to the Millers on September 25, 2017. After the Millers failed to respond to the Notice of Proposed Default, as required, on November 27, 2017, a Final Order of Default was issued with respect to the Millers.
13. During the telephone status conference conducted on September 20, 2017, the ALJ discussed the process for responding to and the potential consequences associated with Hodges’ Motion for Summary Judgment. The Lampkins were provided until October 20, 2017 to file a response to Hodges’ motion.
14. The Lampkins have failed to file any response to Hodges’ Motion for Summary Judgment.
[VOLUME 15, PAGE 2]
Summary Judgment Standard
15. Pursuant to Indiana Code § 4-21.5-3-23 the Commission considers summary judgment in the manner prescribed by Trial Rule 56 of the Indiana Rules of Trial Procedure.
16. Trial Rule 56 expressly provides that a party “against whom a claim, counter-claim or cross-claim has been asserted… may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.”
17. A party moving for summary judgment 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.” Trial Rule 56(C).
18. Trial Rule 56(C) provides that “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.”
19. “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.” Bragg v. Kittle's Home Furnishings, Inc., 52 N.E.3d 908, 919 (Ind. App., 2016).
20. "Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Id.
21. “The movant must demonstrate that ‘the designated evidence raises no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ Upon this showing, the nonmoving party then has the burden to demonstrate that there is a genuine issue of material fact.” AM General LLC v. Armour, 46 N.E.3d 436, 439 (Ind., 2015) citing Indiana Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)) (internal citations omitted); State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 56 N.E.3d 619 (Ind. 2016).
22. However, “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.” Indiana Trial Rule 56(C).
23. “A court must construe all designated evidence and reasonable inferences in favor of the non-moving party, and resolve all doubts against the moving party.” Bragg, supra.
24. "A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed facts support conflicting reasonable inferences." ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009); Arthur v. MacAllister Machinery Co., Inc., 83 N.E.3d 783, 786, (Ind. App. 2017).
Findings of Fact
25. Hodges is the owner of real property identified as Lot 5 (referred to as “the Hodges Property”) within the “Ivan Warren’s Plat on Beaver Dam Lake” (referred to as “the Subdivision“) in Kosciusko County. Exhibit A & A1[2]. The Subdivision, consisting of eight numbered Lots, was created by a plat executed on July 15, 1947. Exhibit A2.
26. The plat of the Subdivision also identifies two six foot wide strips of land identified only as “path” and a 20 foot wide road extending in a north-south direction adjacent to the western boundary of the eight Lots. Id.
27. The paths are situated between Lots 1 and 2[3] and Lots 5 and 6 and extend in an east-west direction from the 20 foot wide road to the shore of Beaver Dam Lake. Id. The Subdivision plat does not expressly state the intended purpose for either of the two paths. Id.
28. The plat of the Subdivision does expressly state that “A 20’ road for ingress and egress from this plat to the main road on the...of Sec. 33 is hereby made a part of this plat.” Id.
29. Further, the Subdivision plat expressly confirms that the “Lots go to the water’s edge.” Id.
30. The eastern boundary of the eight Lots in the Subdivision, including the Hodges Property, are situated adjacent to the shoreline of Beaver Dam Lake.
31. The northern boundary of the Hodges Property is situated adjacent to the northernmost six foot wide path in the Subdivision plat (referred to as “the Subject Path”). Exhibits A2.
32. On October 9, 1954, the plat for the “First Addition to Ivan Warrens Plat on Beaver Dam Lake” (referred to as “the First Addition”) was executed. Within the First Addition are Lots numbered nine through 16 situated on the west side of the 20 foot wide road established in the plat for the Subdivision. Exhibit A3.
33. The First Addition plat expressly states that “lot owners of this plat have the same road rights as those of the original plat.” Exhibit A3.
34. There is no reference in the plat to the First Addition regarding the paths established by the plat of the Subdivision. Id.
35. To assist the reader, the photo presented in this finding is a portion of Exhibit A2 that has been edited to identify the Subdivision, the Subject Path, Hodges’ Property and the general location of the First Addition.
36. The Lampkins own Lots 11 and 12 in the First Addition along with a second tract of real property located generally to the west of Lots 11 and 12. (referred to as “the Lampkin Property”). Exhibit A4. The portion of the Lampkin Property identified as Tract 2 is outside of the First Addition plat.
37. The Lampkin Property does not lie adjacent to the shoreline of Beaver Dam Lake. Exhibit A3 & A4.
[VOLUME 15, PAGE 3]
38. The Lampkin Property was conveyed to the Lampkins on July 29, 2016, by Robert W. Petro, acting as the Trustee of the Robert W. Petro Revocable Living Trust (referred to as “the Trust”) by Trustee’s Deed. Exhibit A4.
39. The Trustee’s Deed by which the Lampkins took ownership of the Lampkin Property contains no reference to the Subject Path. Id.
40. The Lampkin Property was conveyed to the Trust by Charles E. and Leatrice A. Ihrie (referred to as “the Ihries”), who took title through Warranty Deed conveyance from Robert G. and Joyce Howell and a Quitclaim Deed conveyance from Gene A. and Mary Elizabeth McNeal. Neither the Warranty Deed, nor the Quitclaim Deed, by which the Ihries took possession of the Lampkin Property contain any reference to the Subject Path. Exhibits A7 & A8.
41. Despite the fact that the Ihries were not conveyed any rights to the Subject Path, the Ihries, in conveying the Lampkin Property to the Trust on September 28, 2011, included within their Warranty Deed the following:
Grantors also RELEASE AND QUIT CLAIM to Grantor and the successors to Grantor of ownership of the above-described real estate, a non-exclusive easement and right to use the area designated as “Path” between Lots 5 and 6 in Ivan Warren’s Plat on Beaver Dam Lake according to the Plat thereof on file in the Office of the Recorder of Kosciusko County, Indiana, for ingress and egress to Beaver Dam Lake and moored Grantors’ boats to said pier, from the date of Grantor’ acquisition of title to the above-described real estate on May 17, 1986, to the present date.
Exhibit A5.
42. The language cited at Finding 40 is not repeated in the Trustee’s Deed of conveyance to the Lampkins. Exhibit A4.
43. The evidence indicates that the language cited in Finding 40 finds its initial origin in the deed of conveyance to the Trust that was executed on September 28, 2011 despite the fact that the land making up the Subject Path was dedicated to the Subdivision through the plat executed on July 15, 1947.
44. While, at first blush, the language cited at Finding 40 appears to be a grant or conveyance from the Ihries, the express language conveys only those rights granted “according to the Plat” of the Subdivision. The final statement in the paragraph merely confirms that the Ihries had utilized the Subject Path for the purpose of extending a pier and mooring a boat from May 17, 1986 until September 28, 2011.
45. The fact that the Ihries utilized the Subject Path for the extension of a pier and the mooring of a boat is not dispositive of this proceeding or determinative of the respective riparian rights of Hodges or the Lampkins.
46. The conveyance cited at Finding 40 is misleading.
47. There is no evidence in the record to support a factual conclusion that the Lampkins possess any greater proprietary right to the Subject Path than is possessed by any other person.
48. In the spring of 2017, the Lampkins extended a pier and moored a pontoon boat in a manner that blocked Hodges’ frontage and interfered with her riparian rights.
Conclusions of Law
49. The Commission was required by Indiana Code § 14-26-2-23(e)(3) to “establish a process under IC 4-21.5 for the mediation of disputes among persons with competing interests…” involving Indiana’s public freshwater lakes.
50. The Commission adopted 312 IAC 11-3-1, which authorizes a riparian owner to “initiate a proceeding under IC 4-21.5 and 312 IAC 3-1 to seek resolution by the commission of a dispute among riparian owners…concerning the usage of an area over, along, or within a shoreline or waterline of a public freshwater lake.” 312 IAC 11-3-1(a).
51. A “riparian owner” is an “owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.
52. A temporary structure is “a structure that can be installed and removed from the waters of a public freshwater lake without using a crane, bulldozer, backhoe, or similar heavy or large machinery.” 312 IAC 11-2-25.
53. A pier, such as the one placed lakeward of the Subject Path by the Lampkins, is a temporary structure.
54. Governing the installation of temporary structures is 312 IAC 11-3-1, which states;
Sec. 1. (a) The placement and maintenance of a:
(1) temporary structure;
….
is authorized without a written license issued by the department under IC 14-26-2 and this rule if the temporary structure, … qualifies under this section.
55. Only a temporary structure meeting the qualifications of 312 IAC 11-3-1(b)(1-9) may be placed and maintained without a written license. The question presented here focuses on only one of the qualifications stated at 312 IAC 11-3-1(9), which expressly limits the ability to exercise the authority to place and maintain a temporary structure to “riparian owners”.
56. The Commission possesses “authority to determine landward property rights ‘to the extent necessary to carry out’ its statutory obligation to resolve disputes between competing riparian owners.” Dennis v. Sutton and Melendez, 14 CADDNAR 148 (2017), citing Bowman v. Walls, 14 CADDNAR 85 (2016) citing Kranz v. Meyers Subdivision Prop. Owners Ass’n, 969 N.E.2d 1068 (Ind. Ct. App., 2012).
57. The evidence establishes that Hodges, as the Owner of the Hodges Property, which is situated adjacent to the shore of Beaver Dam Lake, is a riparian owner. Within the lateral limitations of the Hodges’ Property corresponding to the shoreline, Hodges is authorized to place and maintain a temporary structure, otherwise qualifying under 312 IAC 11-3-1(b), without a written license.
58. The Lampkins are not riparian owners by virtue of their fee title ownership of the Lampkin Property.
59. The question for determination here is whether the Lampkins are riparian owners with respect to the Subject Path authorized to place and maintain a pier and moor a boat lakeward of that shoreline on Beaver Dam Lake.
60. Hodges maintains that the Subject Path is a “public access at Beaver Dam Lake” and in reliance upon Tersigni v. Osbon and Wright, 13 CADDNAR 60 (2012) argues that “piers require a specific easement and without that have no legal right to locate on a public access.” Memorandum in Support of Motion for Summary Judgment.
61. In Tersigni, the Commission determined that the Osbons and the Wrights were riparian owners authorized to exercise those rights along the shoreline and within the waters of Beaver Dam Lake lakeward of their respective real property. It was concluded that the Tersignis owned real property that did not abut Beaver Dam Lake and that the Tersignis did not possess an express easement granting them the authority to exercise riparian rights for the placement and maintenance of a pier lakeward of a platted public road located between the real properties owned by the Osbons and the Wrights. The Commission concluded;
43. The Tersigni pier obstructs and encroaches on the public’s access from the platted road to the adjacent portions of Beaver Dam Lake.
44. The Tersigni pier encroaches on the Osbon real estate and exercise by the Osbons of their riparian rights within Beaver Dam Lake.
45. The Tersigni pier encroaches on the Wright real estate and exercise by the Wrights of their riparian rights within Beaver Dam Lake.
46. ….The [Tersignis] 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. …
[VOLUME 15, PAGE 4]
62. “Intent to dedicate real property to public use has … been found by references to ‘alley’ describing strips of land extending from a road to the shore of a lake within a plat where each lot fronted on the lake’s shoreline; and by identification of a street name in a plat.” Dennis v. Sutton & Melendez, 14 CADDNAR 148, 151 (2017) (Internal citations omitted; see McAllister v. Sanders, 937 N.E.2d 378 (Ind. Ct. App., 2010) and Chaja v. Smith, 755 N.E.2d 611 (Ind. Ct. App. 2001)).
63. In Dennis, the Commission determined that a strip of land identified in a plat only as “ditch and road to lake” constituted a dedication of the real property to public use.
64. Identification of the Subject Path, as “path” within the Subdivision plat is sufficient to constitute a dedication of the real property to public use. This determination is consistent with Commission precedent and decisions of the Indiana Court of Appeals. Id., Tersigni supra, Bass v. Salyer, 923 N.E.2d 961 (Ind. Ct. App. 2010), Brown v. Heidersbach, 360 N.E.2d 614 (1977).
65. Because the Subject Path was dedicated to the Subdivision in 1947, the Ihries possessed no interest in the Subject Path to “release” or “quit claim” to the Trust, or to any person. Howard v. DNR and Smith, 13 CADDNAR 36 (2012).
66. The Lampkins have not averred or presented any evidence in support of a position that they have an ownership interest in the Subject Path by prescriptive easement. Such a claim, in this case, would fail in any event.
67. The Commission, relying upon Bass v. Salyer, has previously determined;
116. Obtaining ownership of real property by adverse possession requires clear and convincing proof of (1) “control… that is normal and customary considering the characteristics of the land”, (2) “intent to claim full ownership of the tract superior to the right of all others…”, (3) “actual or constructive notice to the legal owner of the …intent and exclusive control”, and (4) satisfaction of control, intent and notice for a period of 10 years. Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005).
117. The Respondents must meet the same rigorous evidentiary requirements to sustain a determination that they have acquired a prescriptive easement to utilize the disputed parcel for the placement of a pier. Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005).
118. Each of the four elements of adverse possession must be independently established and “the failure to find any one such element is fatal” to the Respondents’ claim. Bass at 964.
119. Following the conclusions reached in Bass v. Salyer, 923 N.E.2d 961, 968 (Ind. Ct. App. 2010) and Brown v. Heidersbach, 360 N.E.2d 614 (1977), both of which involve fact patterns significantly similar to those presented in this instance, it is determined that the Respondents’ use of the disputed parcel was “consistent with the grant of the public easement”. Bass at 967. Therefore, the Respondents’ use of the disputed parcel, and the Stultses’ use before them, was permissive; not adverse or exclusive sufficient to establish title by adverse possession.
120. The Respondents “cannot demonstrate that their use was at the same time under a claim of right, exclusive, hostile, or adverse…” sufficient to prevail on their adverse possession or prescriptive easement claims. McAllister at 384 citing Bass.
Dennis, at 152.
68. Because the Subject Path is real property dedicated to public use through the Subdivision plat, the Lampkins’, as well as any other person’s, use of the Subject Path is permissive, not adverse or exclusive as required to establish a prescriptive easement.
69. The dedication of the Subject Path to the public through the plat of the Subdivision has the effect of granting an easement to the public for the use of the Subject Path.
70. The evidence in the record is insufficient to support a determination of the full extent of the use that may be made of the Subject Path by the public. The evidence in the record, is, however, sufficient to determine the sole issue presenting in this case, which is whether the Lampkins may place and maintain a pier on the shoreline and in the waters of Beaver Dam Lake lakeward of the Subject Path and moor a boat to that pier.
71. Each “owner in common of an easement may not alter or use the land in such a manner as to render the easement appreciably less convenient and useful for other co-owners.” Parkison v. McCue, 831 N.E.2d 118, 132 (Ind. Ct. App. 2005).
72. It was noted in Dennis that “lateral limitations dictate that not every member of the general public, to whom the disputed parcel was dedicated, can extend a pier from or moor boats within the waters lakeward of the [ditch and road to lake]”, which was 25 feet wide. Similarly, in this instance every member of the public cannot place a pier and moor boats within the six foot shoreline width of the Subject Path.
73. Consistent with the Commission’s determinations in Tersigni and Dennis, the Lampkins’ use of the Subject Path for the placement and maintenance of a pier and the mooring of a boat interferes with the use of the Subject Path by other members of the public and further interferes with Hodges’ use of her riparian rights associated with the shoreline of the Hodges’ Property.
74. For these reasons, the Lampkins’ use of the shoreline and waters lakeward of the Subject Path is not permitted.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 75 through 77, have been relocated to the “Final Order” section at the beginning of this document.]