Jed and Cindy Pearson's application PL-15,962 is denied.
FINDINGS OF FACT
1. On February 10, 1995, Jed Pearson (the "claimant") filed with the Natural Resources Commission (the "Commission") a request for review of the denial by the Department of Natural Resources (the "Department") of his application PL-15,962.
2. The Commission assigned Tim Rider as administrative law judge for this proceeding.
3. In the application the claimant and his spouse had requested permission to place a temporary pier on Loon Lake in Whitley County.
4. A temporary pier need not be permitted unless an effected landowner objects. (See 310 IAC 6-2-14(9)).
5. Such an objection was filed by David and Mary Gator who have since been granted intervention in this case.
6. IC 4-21.5, IC 14, 310 IAC 6-2 and 312 IAC 3 apply to this proceeding.
7. The Department is an agency as defined in IC 4-21.5-1-3.
8. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
9. Pursuant to 312 IAC 3-1-2 and IC 14-10-2-3, the Commission is the ultimate authority for this proceeding.
10. Loon Lake is a "public freshwater lake" as defined by IC 14-26-2-3 and 310 IAC 6-2-10.
11. "Riparian owner" is defined by 310 IAC 6-2-12 as the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land.
12. This case centers around an easement recorded in May 1991, which grants "ingress and egress to and from the water's edge of Loon Lake" to the Pearsons and two other property owners, who did not participate in this proceeding. The issues in this case are as follows:
a) Whether the easement was created prior to its recording in May 1991;
b) Whether the language contained in the recorded easement grants the Pearsons sufficient riparian ownership to apply for a pier permit; and
c) Whether the inability to place a pier on the site will render the easement ineffectual.
13. The easement in question is a ten foot strip of property running between lots 210 and 211 on Loon Lake, in the West Shore Addition Etna Township, Whitley County. In creating the easement, five feet were taken from each lot.
14. The Pearsons, who purchased their property in 1976, do not live on the lake, but rather across the street from lots 210 and 211, on lot 204.
15. The property owners of lots 210 and 211 at the time the Pearsons purchased their property in 1976 were the Orcutts and the Bensons.
16. The grantors of the 1991 easement are the Fralicks, who lived on lot 211 and the Gators who live on lot 210. Subsequent to the recording of the May 1991 easement the Fralicks sold their property to the Horners, who did not participate in this proceeding.
17. When the Pearsons purchased their lot in 1976, an old pier was present on the easement, and had been there for some time. The Pearsons assert that the existence of this pier, coupled with their use of it, is evidence that an easement had been established prior to 1991, the scope of which included a pier.
18. An easement may be created by a deed or other document, through prescriptive use, or by implication as a result of necessity. See, Smith v. Holloway, 124 Ind. 329, 24 N.E. 886 (1890). The Pearsons have not claimed that this easement was created by implication, and all parties are in agreement that no deed or other document establishes the easement on paper prior to 1991. The remaining question is therefore whether this easement was created prescriptively prior to May 1991.
19 A prescriptive easement is established by an actual, open, hostile, notorious, continuous and uninterrupted adverse use with the knowledge and acquiescence of the servient landowner for a period of twenty years. IC 32-5-5-1; Whitt v. Ferris, Ind. App., 596 N.E. 2d 230 (1992); Greenco v. May, Ind. App., 506 N.E. 2d 42 (1987). Failure to prove any one of these elements by a party asserting the prescriptive right is fatal. Id.
20. The statutory period need not be maintained by one adverse user; continuity of use for the requisite
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twenty-year period may be established by tacking the adverse use of predecessors in title. Fleck v. Hann, Ind. App., 658 N.E. 2d 125 (1995).
21. "Continuous use" means use which is not interrupted by the act of the owner of the land. Id.
22. The Pearsons testified that their use of the easement and pier prior to May 1991 was with the knowledge and consent of the various property owners of lots 210 and 211. However, such permissive use does not establish an easement. Rather, it is more akin to a license, which is a personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein. Id.
23. A use which is merely permissive or which is exercised under a mere license cannot ripen into an easement. Id.
24. Even if the Pearsons' use of the property is considered to be adverse, the twenty year period has not been satisfied. At the time the Gators and the Fralicks put an end to the Pearsons' "unfettered" use of the easement through the recorded deed, only fifteen years had passed.
25. The Pearsons have asserted tacking as a means to satisfy the twenty year requirement. In order to tack on prior years of prescriptive use, evidence must be presented establishing adverse use by the prior owner of the dominant holding, in this case, the previous owner of lot 204.
26. Only hearsay evidence of the conduct of the Orcutts and the Bensons prior to 1976 has been presented on the issue of tacking. This is not relevant to an inquiry into prescriptive use.
27. The 1976 real estate listing of the Pearson's home referencing a pier and hearsay testimony as to realtor representations are insufficient to establish prescriptive use by the prior owner of lot 204.
28. Furthermore, any prescriptive use of the pier which the Pearsons may have established was interrupted by the Fralicks' removal of the pier in the early 1980's. This pier was not replaced.
29. The Pearsons have not acquired riparian ownership through prescriptive easement.
30. No deed or document has been presented which establishes the easement prior to May 1991.
31. The easement was not created until May 1991, at which time it was drawn up in a quit-claim deed and properly recorded with the Whitley County Recorder's Office.
32. The second issue for consideration is the intended meaning of the term "ingress and egress to and from the water's edge of Loon Lake", which is contained in the easement deed.
33. The term "ingress and egress" is ambiguous, and does not, on its face, establish riparian ownership rights sufficient for the granting of a permit.
34. Generally, an easement for ingress and egress confers only the right to pass over the land and not to control the real estate or install improvements. Hagemeier v. Indiana and Michigan Electric Company, Ind. App., 457 N.E. 2d 590 (1983). However this general proposition fails and dominant owners of lakeside easements may gain the right to erect and maintain piers, moor boats and the like where express language allows. Klotz v. Horn, Ind., 558 N.E. 2d 1096 (1990).
35. When the instrument is silent or ambiguous concerning the specific rights of the easement holder, then extrinsic or parol evidence must be considered in order to ascertain the intent of the parties who created the easement. Id.
36. At the hearing, parol evidence was offered by Pearson as to his belief that a pier was meant to be included in the easement.
37. Mr. Gator testified to and evidence shows the following:
a) Mr. Gator allowed Mr. Pearson to tie his boat at the end of the easement from 1991 to 1994;
b) Mr. Gator never believed Mr. Pearson had the right to tie his boat but he tolerated such action;
c) Mr. Gator's 1994 objection was lodged because they felt that Mr. Pearson had abused his privilege; and
d) The Gator's decided to assert their legal right to limit Mr. Pearson's use of the easement to what was contemplated at the time it was granted.
38. At the time the easement document was prepared (May 1991), counsel for the grantors (Bloom and Bloom, p.c.) dispatched a letter to the grantees explaining what had been done.
39. The pertinent part of the letter, which was marked at hearing as stipulated Exhibit S IV, is as follows: "This is an easement only, and is for use only in going to and from the lake. You should never obstruct the easement in any way, except as you are going to and from the lake. You may take a boat or similar object for your use on the lake as you use the easement."
40. The words used in the letter to the grantees are specific and give no indication that a pier is allowed.
41. If the right to place a pier was intended it would likely have been noted in
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42. Since the easement serves three lots the granting of the right to place a pier could lead to three piers at the end of the ten foot strip. It is doubtful that the grantors intended to convey rights likely to lead to such a result.
43. An easement is limited to the purpose for which it was created and cannot be extended by implication. Brown v. Heidersbach, 172 Ind. App. 434, 360 N.E. 2d 614, (1977).
44. While it is true that the owner of an easement possesses all rights necessarily incident to its enjoyment, and the owner of the servient estate may not interfere with such enjoyment, Metcalf v. Houck, Ind. App., 644 N.E. 2d (1994), the intended scope of the easement must necessarily dictate how that easement is enjoyed.
45. Evidence indicates this easement was intended to provide the easement holders with access to the lake for purposes of launching a boat, fishing, swimming or wading. Although the bottom of the lake near the shore may not be suitable for swimming or wading, the area may still be used to launch a boat, fish or enjoy the scenic beauty of the area.