Content-Type: text/html Cause #: 02-105l.v9.html

CADDNAR


[CITE: Piering v. Ryan and Caso, 9 CADDNAR 123 (2003)]

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Cause #: 02-105L
Caption: Piering v. Ryan and Caso
Administrative Law Judge: Lucas
Attorneys: Tubergen; Burns
Date: July 25, 2003

FINAL ORDER

(1) Arnold Piering and Katherine Piering, husband and wife, (the Pierings) are the owners of a strip of land of even width five (5) feet wide off the east side of Lot Number Twenty (20) in the Recorded Plat of Pebble Beach at Crooked Lake, Steuben County. This land extends to the shoreline of Crooked Lake, a "public freshwater lake" under IC 14-26-2.

(2) The Pierings enjoy riparian rights within an area of Crooked Lake that is five (5) feet wide and extends into Crooked Lake for a distance that is reasonably required to exercise of those rights. The area is bounded by two lines, extending in a generally northerly direction and perpendicular to the shoreline of Crooked Lake, that commence at the two points formed where the land described in paragraph (1) of this order intersects with the shoreline of Crooked Lake. These riparian rights are subject to regulation under IC 14-26-2, including the public trust doctrine.

(3) The Pierings must not place any structure, temporary or permanent, outside the area described in paragraph (2) of this order.

(4) The Pierings may use portions of Crooked Lake that are east and west of the area described in paragraph (2) for the purpose of approaching or leaving the shoreline (or to a pier extending from the shoreline) along the strip of land described in paragraph (1). The Pierings may load or unload a boat while it is located outside the area described in paragraph (2), but they must not leave the boat unattended.

(5) John Ryan and Diane Ryan, husband and wife, and Henry L. Caso, Jr. and Janice M. Caso, husband and wife, must act reasonably to facilitate the uses by the Pierings as described in this order, and particularly those described in paragraph (4).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Arnold E. Piering and Katherine Piering, husband and wife, (the "Claimants") are the owners of the following real estate in Steuben County, Indiana: A strip of land of even width (5) feet wide off the east side of Lot Number (20) in the Recorded Plat of Pebble Beach at Crooked Lake. This real estate is referred to as the "Piering property".

2. The Piering property runs generally from Shade Side Road to the shore of Crooked Lake in Steuben County.

3. John Ryan and Diane Ryan, husband and wife, (the "Ryans") are the owners of the following real estate in Steuben County, Indiana: Lots Number 20 and 21 in the Plat of Pebble Beach on the South Shore of Crooked Lake, according to the Recorded Plat thereof, excepting a strip of land five (5) feet in width east and west off the entire east side of Lot Number 20 in the plat of Pebble Beach in the southeast corner of the northwest corner of Section 16, Pleasant Township, Steuben County,

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Indiana. This real estate is adjacent to the Piering property on the west.

4. Henry L. Caso, Jr. and Janice M. Caso, husband and wife, (the "Casos") are the owners of the following real estate
in Steuben County, Indiana: Lot Number 19 in the Recorded Plat of Pebble Beach, Crooked Lake, being a part of the northwest fractional quarter, in Section 16, Township 37 North, Range 13 East, Steuben County, Indiana. This property is adjacent to the Piering property on the east.

5. The Ryans and the Casos are collectively the Respondents.

6. On June 30, 1979, Katherine Piering was known as Katherine Brown and was married to Warren C. Brown. On that date, Warren C. Brown and Katherine Brown, husband and wife, and Philip L. Gerard and Katherine E. Gerard, husband and wife, together, purchased the Piering property, each couple holding an undivided one-half interest in the Piering property.

7. In 1979, the Piering property was improved by the addition of steps down an embankment and by the placement of a pier[FOOTNOTE 1] within the water from the shoreline of Crooked Lake.

8. The Casos testified the pier was relocated at least twice between 1980 and 1985. The pier was originally placed west of the center of the Piering property and angling in a westerly direction. During this period, boats were moored both east and west of the pier. The Casos requested that the pier be placed farther east and made to extend at a perpendicular to the shoreline. The pier was moved in response to this request.

9. Katherine Brown (now Piering) and Warren C. Brown divorced, and Katherine received Warren C. Brown's interest in the Piering property. Katherine Brown conveyed her interest in the property to Phillip and Katherine Gerard on November 6, 1982.

10. The testimony is unrefuted that while the Browns and Gerards jointly owned the Piering property (June 30, 1979 through November 6, 1982), the pier was extensively used with boats moored on both sides and kept there frequently.

11. After November 6, 1982, evidence regarding usage becomes more problematical. Janice Caso testified that pier usage by the Gerards lessened then completely stopped when the Gerards purchased another cottage on Crooked Lake. They moved to the new cottage before selling the Piering property to James Perau.

12. On April 28, 1986, Philip and Katherine Gerard conveyed their interest in the Piering property to James Perau. John S. Mercer and Michelle R. Mercer later purchased the Piering property from Perau through an unrecorded contract.

13. Henry Caso testified that although he and his family regularly used their property east of the Piering property, he saw James Perau "only on very rare occasions, and there was very little activity other than that the pier would get put in."[FOOTNOTE 2]

14. Janice Caso testified that Perau appeared to be a very busy man who typically used the Piering property only on "long weekends". In most instances, Perau would remove his boat from the water at the weekend's conclusion and take the boat home.

15. The Casos also testified that use by John and Michelle Mercer was sporadic, with a fishing boat that was for a time stored on a railing near the steps. Janice Caso testified that only a portion of the pier was put out during this period, and she did not recall a boat being tied to it.

16. John Ryan testified that use of the pier on the Piering property, at least until 2001, was infrequent with a boat moored there less than 20% of the time.

17. During the hearing, Claimants offered into evidence the affidavits of Philip Gerard and James F. Perau. The affidavits suggested usage of the Piering property between 1986 and 1993 that was considerably more substantial than that to which was testified by the Respondents. Both affidavits contained mostly general statements lacking in significant particularly; this condition was more notably a limiting factor with the Perau affidavit. Gerard's ability to observe the Piering property during this period was at best casual and was markedly inferior to the ability of the Respondents. Just as importantly, the absence of Gerard and Perau at the hearing made it impossible for them to be cross-examined or to evaluate their demeanor and veracity. The Respondents were available for cross-examination, and their testimony appeared to be creditable.[FOOTNOTE 3]

18. At a mutual real estate closing on March 20, 1993, James

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Perau conveyed title to the Piering property to John and Michelle Mercer who in turn conveyed title to the Piering property to Arnold E. Piering and Katherine Piering. At that time, the Claimants also purchased a small cottage and associated real estate in proximity to the Piering
property.

19. When the Claimants purchased the Piering property, there was no pier in the water. Katherine suggested that Arnold Piering place the pier at an angle, as was done before she sold the Piering property in 1982. In 1993, Arnold Piering began placing the pier as she suggested, but a neighbor asked him to place the pier perpendicular to the shoreline, and Arnold Piering complied.

20. After March 20, 1993, the frequency of pier usage on the Piering property varied considerably from year to year.

21. In the summers of 1993, 1994, and 1995, the Claimants did not own a boat, but Gary Wellman and his family used the pier with the Claimants' permission. The Claimants called Gary Wellman as a witness. Portions of Wellman's testimony were difficult to reconcile with others. The gist of his testimony was seemingly that he would moor the boat along the pier and leave it there for periods as long as two weeks, then he would take the boat home and use it on other lakes. Wellman sold the boat to Arnold Piering in late 1996, but the title was misplaced and not transferred to Piering until later.

22. In 1996, the Claimants rented the cottage and the Piering property to Michelle Grubb. She was an unmarried mother who had a friend with a fishing boat that was sometimes moored at the pier.

23. In May 1997 through November 1998, the Claimants rented the cottage and the Piering property to Gus Sutton, a construction foreman who was then working in northeastern Indiana. Sutton owned a fishing boat that he sometimes moored along the western side of the pier.

24. For the summers of 1999 and 2000, the cottage and the Piering property were rented to another couple and their family. They also owned a motorboat that was sometimes moored at pier.

25. None of the renters for the summers of 1996 through 2000 testified, so the frequency and regularity of their usage is difficult to evaluate.

26. Rebecca Elonzae testified that she, her husband, George, and their children used the Piering property with the consent of the Claimants in the summers of 2001 and 2002. They anchored an inboard motorboat to auger poles beginning in July 2001. The boat was placed in the lake a few feet and west of the pier. At that time, the pier was unstable and considered by George Elonzae to be untrustworthy. In late April or May 2002, the Elonzaes placed a shore station (also referred to as a "boatlift") in the lake. The shore station was also located west of the pier and was unconnected to the pier. From July in 2001 and in 2002, summer usage by the Elonzaes of the portion of the lake west of the pier was regular and frequent.

27. At the request of Arnold Piering, the Elonzaes subsequently removed the shore station and their boat from the lake.

28. The Respondents presented into evidence several photographs that included the Piering property, the pier site, or both. They testified that these photographs truly and accurately depicted the area and that they were inclusive. In other words, they testified they did not select photographs without moored boats or a pier in preference to photographs that would have included moored boats or a pier.

29. A pier with no boat moored is depicted in photograph 14 taken in 1980 (Respondent's Exhibit B); photograph 16 taken in 1994 (Respondent's Exhibit B); photograph 23 taken in 1994 (Respondent's Exhibit E); photograph 5 taken in July 1995 (Respondent's Exhibit D); photograph 15 taken in 1996 (Respondent's Exhibit B); photograph 6 taken in 1998 (Respondent's Exhibit C); photograph 8 taken in 2000 (Respondent's Exhibit C); and, photograph 10 taken in 2000 (Respondent's Exhibit C).

30. A pier out of the water (with no boat moored or taken from an angle not including the wate) is depicted in photograph 19 taken in 1986 (Respondent's Exhibit B); photograph 22 taken in 1986 (Respondent's Exhibit E); photograph 12 taken in 1990 (Respondent's Exhibit F); and, photograph 4 taken in June 1995 (Respondent's Exhibit D).

31. The only photographs depicting both a pier and a boat moored were taken in 1980. These were photographs 20 and 21 (Respondent's Exhibit E).

32. The Respondents testified there was at least one year, and

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possibly two, in the early to middle 1990s, when a pier was not placed from the Piering property.

33. The Ryans have used the portion of the water, where boats used by persons in control of the Piering property and pier were sometimes moored, for their benefit and enjoyment since the Ryans acquired their property in 1987. The Ryans and family members have used the area for wading and swimming, and they have placed a boatlift in the area.

34. Placement of the shore station, as described in Finding 26, was a primary cause for the initiation of this proceeding. After its placement, John Ryan sought the intervention of the Department of Natural Resources, Division of Law Enforcement.

35. Following an inspection, Conservation Officer Price ordered the Claimants to remove Elonzae's shore station and boat and to refrain from placing them alongside the pier extending from the Piering property, and that failure by the Claimants to do so, could result in fines and penalties. From this order, the Claimants sought administrative review.

36. At common law, property owners with lands abutting a river, stream, or lake acquire "riparian rights" with respect to the body of water. Tuesburg Land Co. v. State, 78 Ind. App. 327, 131 N.E. 530 (1921).

37. The Claimants and the Respondents are riparian owners along Crooked Lake.

38. The Indiana General Assembly enacted "public trust" legislation that modifies common law riparian rights by recognizing the public's right to preserve natural scenic beauty and recreational values. Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001). The legislation is codified at IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act"), and rules to help implement the statutory structure are set forth at 312 IAC 11.

39. The Lakes Preservation Act applies to each lake in Indiana that is a "public freshwater lake" as the phrase is defined at IC 14-26-2-3.

40. Crooked Lake in Steuben County is a "public freshwater lake" and activities along its shoreline and within the lake are subject to the Lakes Preservation Act.

41. The Claimants have standing to initiate this proceeding under the Lakes Preservation Act and appropriately invoked their standing through the "Request for Administrative Appeal and Review" filed with the Natural Resources Commission on July 23, 2002.

42. Personal service of the Claimants' "Request for Administrative Appeal and Review" was made upon each of the Respondents in accordance with the Lakes Preservation Act and IC 4-21.5 (sometimes referred to the "Administrative Orders and Procedures Act" or "AOPA").

43. The Natural Resources Commission has jurisdiction over the subject matter and over the person of each of the parties. This authority may be derived directly from IC 14-26-2-23, or it may be derived from the doctrine of primary jurisdiction, in whole or in part. Determining which is the source of authority may bear upon whether the Commission is entitled to deference on judicial review, but determining the source of its legal authority is unnecessary to administrative review. Snyder, et al. v. Linder, et al., 9 Caddnar 45 (2002).

44. The Lakes Preservation Act provides the state has "full power and control of all of the public freshwater lakes" and "holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes." IC 14-26-2-5(d).

45. These recreational purposes include fishing, boating, swimming, water storage to maintain water levels, and any other purpose for which lakes are ordinarily used and adapted. IC 14-26-2-5(b).

46. A person who owns land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake. IC 14-26-2-5(e).

47. Riparian owners continue to possess rights along a public freshwater lake, but the rights are now statutory and must be balanced with the public's rights. Lake of the Woods v. Ralston at 401.

48. In order to support the values expressed in the Lakes Preservation Act, as well as to balance the rights of the public and those of riparian landowners, the legislature established a licensure system to be administered by the Department of Natural Resources.

49. A person may not change the level of the water or the shoreline of a public freshwater lake by excavating, filling in, or otherwise causing a change in the area or depth of or affecting the natural resources, scenic beauty, or contour of the lake below the waterline or shoreline without having a written license issued by the Department of Natural Resources. IC 14-26-2-6.

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50. The Court of Appeals of Indiana declined to apply this licensing authority to the placement of temporary piers in Indiana Department of Natural Resources v. Town of Syracuse, 686 N.E.2d 410 (Ind. App. 1997). The statutory authority was found applicable only to activities of a "more violent and substantial nature", such as dredging and mining.

51. Also, in 1997, the Indiana General Assembly established the Indiana Lakes Management Work Group. The work group included citizens with a breadth of knowledge and interests in lakes, as well as bipartisan representation with two members from the Indiana Senate and two from the Indiana House of Representatives. The substantive charge to the work group was to develop proposed solutions to problems affecting Indiana lakes. P.L. 239-1997. In response to this charge, the work group met 24 times between 1997 and 1998 and offered numerous recommendations. One of the recommendations was directed to the Town of Syracuse decision:

"On October 16, 1997, the Court of Appeals ruled that the Indiana Department of Natural Resources (DNR) has no statutory authority under [the] Lakes Preservation Act to require permits for seasonal installation of piers or other structures that are of a temporary nature, so long as the installation method has minimal impact on the bed of the lake.

Although there are other areas of law that suggest DNR has the authority to regulate temporary structures in public freshwater lakes, the authority is not definitive and is cumbersome to apply.

The result of this condition of law is that DNR is unable to effectively manage public freshwater lakes in the full spirit of "public trust" as mandated by law. Additionally, the ability of public freshwater lakes, users, property owners, and local governments to resolve disputes short of expensive court battles is unrealistically limited.

Structures that are considered temporary, and have "de minimis" impact on the lake bed are left to uncontrolled proliferation. The result is loss of public usage of areas within 150 feet of shore, an increase in riparian owner disputes, and environmental harm to the lakes.

DNR has attempted to manage this problem through agency rule-making authority. This process has not adequately dealt with the problem, and clear authority must be re-established by the legislature to protect Indiana's public freshwater lakes for property owners, current users, and future stakeholders."

The work group stated:

"The Indiana Lakes Management Work Group recommends that the Indiana General Assembly amend the public freshwater lake law to add a new section that reads as follows:

IC 14-26-2-5.5. The Commission shall adopt rules under IC 14-10-2-4 to assist in the administration of this chapter. The rules must, as a minimum, do the following:

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(1) Provide objective standards for licensing the placement of any temporary or permanent structure or material, or the extraction of material, over, along, or within the shoreline or waterline. These standards shall exempt any class of activities from licensing where the Commission finds the class is unlikely to pose more than a minimal potential for harm to the public rights or public trust as described in IC 14-26-2-5."

(2) Establish a process under IC 4-21.5 for the mediation of a dispute among riparian owners, or by a riparian owner against the department, relative to the usage of an area over, along, or within the shoreline or waterline for a matter within the jurisdiction of this chapter. If after a good faith effort mediation under this subdivision fails to achieve a settlement, the department shall make a determination of the dispute. A person affected by the determination may seek administrative review by the Commission."

"Final Report of the Indiana Lakes Management Work Group", (Indiana Department of Environmental Management, Dec. 1999), pp. 40 and 41.

52. The Indiana General Assembly enacted P.L. 62-2000, in part to implement this work group recommendation and to clarify that the Lakes Preservation Act was intended to have broader application than stated in the Town of Syracuse. The most pertinent provision was codified at IC 14-26-2-23:

"Sec. 23. The commission shall adopt rules in the manner provided in IC 14-10-2-4 to do the following:
(1) Assist in the administration of this [Lakes Preservation Act] chapter.
(2) Provide objective standards for licensing:
(A) the placement of a temporary or permanent structure or material; or
(B) the extraction of material;
over, along, or within the shoreline or waterline. The standard shall exempt any class of activities from licensing if the commission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in section 5 of this chapter.
(3) Establish a process under IC 4-21.5 for the mediation of disputes among riparian owners or between a riparian owner and the department concerning usage of an area over, along, or within a shoreline or waterline for a matter within the jurisdiction of this chapter. The rule must provide that:
(A) if good faith mediation under the process fails to achieve a settlement, the department shall make a determination of the dispute; and
(B) a person affected by the determination of the department may seek administrative review by the commission."

53. The 2000 amendments clarified the legislative intent that the licensing requirements of the Lakes Preservation Act were intended to apply to temporary as well as permanent structures.

54. The rules anticipated by the Lakes Preservation Act, with its 2000 amendments, are set forth in 312 IAC 11. Among these are new provisions to encourage the mediation of disputes among riparian owners. IC 14-26-2-23(3) as implemented through 312 IAC 11-1-3 and 312 IAC 11-3-2.

55. The Claimants and the Respondents engaged in mediation as anticipated by the statute and rules, but the mediation was unsuccessful.

56. Following the conclusion of mediation, the parties agreed upon a time and location for hearing the dispute under the Lakes Preservation Act

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and AOPA. The hearing was conducted as scheduled in Fort Wayne on April 29, 2003.

57. Immediately following the conclusion of the hearing, the parties agreed upon a schedule for tendering proposed findings of fact and conclusions of law, and those were tendered in a timely fashion.

58. The rules for the Lakes Preservation Act also includes 312 IAC 11-3-1 that establishes a general license authorizing the placement of qualified temporary structures, including temporary piers. The parties do not dispute that the Claimants' pier, as currently configured, qualifies for a general license under these rules.

59. Also, the parties do not dispute that, in the furtherance of their riparian rights, the Claimants enjoy the use of an area that is five feet wide and perpendicular to the shoreline from the Piering property, extending a reasonable distance into Crooked Lake. This area is the "Claimants' riparian area".

60. The parties do contest the propriety of other usage by the Claimants east or west of the Claimants riparian area. The parties disagree as to the Claimants' right to place structures, such as the shore station placed in the lake by George Elonzae in 2002, or to moor boats in that area. The Claimants contend they have obtained this right by prescription, but the Respondents contend the evidence does not support the establishment of a prescriptive right in the Claimants.

61. The Claimants make an additional contention concerning the mooring of boats. This contention was outlined by their attorney in his opening statement during the public hearing and is stated with particularly in the Claimants' proposed finding 19:

"There is no statute nor is there any administrative rule or regulation which would operate to prohibit the mooring of boats alongside a pier which has been placed by a riparian owner in compliance with 312 IAC 11-3-1. Furthermore, there is no statute nor administrative rule or regulation which would require that boats moored alongside a pier...float only upon water entirely within the riparian area of the owner who has rightfully erected the pier. In other words no rule of law in Indiana prohibits boats from floating within, or partially within, a riparian area of someone not the owner of the boats. This is because a boat floating upon the water is unlikely to pose more than a minimal potential for harm to the public rights upon the public lake (I.C. 14-26-2-23) and is easily removable."

62. The contentions referenced in Finding 60 and Finding 61 are what must be determined in this proceeding. First, consideration is given to the subject of whether the Claimants enjoy a right by prescription.

63. Prescriptive easements are not favored by the law. In Indiana, the party claiming a prescriptive right must meet "stringent requirements". Fleck v. Hann, 658 N.E.2d 125, 128 (Ind. Ct. App. 1995).

64. In order to establish the existence of a prescriptive easement, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right. Greenco, Inc. v. May, 506 N.E.2d 42, 45 (Ind. Ct. App. 1987).

65. Adverse use has been defined as a "use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right." Nowlin v. Whipple, 120 Ind. 596, 598, 22 N.E. 669, 670 (1889) cited in Carnahan v. Moriah Property Owners Ass'n, 716 N.E.2d 437, 442 (Ind. 1999).

66. A claimant seeking to establish an easement based on a "recreational" use of another's property must make a special showing that the claimant's activities were, in fact, adverse. They will not be indulged a presumption to that effect. "This is because recreational use (especially of a body of water) is of a very different character from use of a path or road for ingress and egress over land. Recreational use (especially of water which leaves no telltale path or road)" is "likely to be permissive." Carnahan v. Moriah Property Owners Ass'n at 442.

67. The evidence does not support finding a prescriptive easement in favor of the Claimants and against either the Ryans or the Casos. The

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Claimants have not met their burden for establishing a prescriptive easement outside the
Claimants' riparian area. There is no continuous period longer than three or four years during which the Claimants established usage that is consistent with a prescriptive easement. In particular, use of the Piering property between 1986 until 1993 was sporadic, irregular, and perhaps non-existent for one or two summers. Subsequent to 1993, use of the Piering property varied markedly from time to time through a series of renters. Also, the usage appears to have been more permissive than hostile. Configuration of the pier on the Piering property was changed at least twice between 1980 and 1985, once at the request of the Casos. In 1993, at the suggestion of his wife, Arnold Piering began placement of the pier at an angle and was dissuaded by a neighbor. The weight of the evidence is that the Ryans and their family frequently used the area west of the pier, but the Pierings and their renters used the area only occasionally.

68. Second, consideration is given to whether the Claimants may lawfully moor a boat that rests on waters within the riparian areas of the Respondents, where the mooring is to a lawfully placed pier.

69. Although the 2000 amendments to the Lakes Preservation Act clarified its application to the placement of structures within a public freshwater lake, those amendments do not speak directly to the location of boats. In establishing a "public trust" on public freshwater lakes, the Indiana General Assembly invoked the "public trust doctrine" that has historic application to navigable waters. Rights granted by the "public trust doctrine" include boating, bathing, swimming, and similar activities. State v. Oliver, 727 A.2d 491, 320 N.J. Super. 405 (N.J. Super. A.D. 1999). The public trust doctrine assures that the Respondents cannot exclude the general public from these uses; the rights of the Claimants are certainly no less than those of the general public.

70. A "reasonableness" test is used to accommodate the diverse characteristics of Indiana's public freshwater lakes. On public trust waters, that test weighs the interests of competing riparian owners, as well as those of the general public. Zapfe v. Srbeny, 587 N.E.2d 177 (Ind. Ct. App. 1992).

71. The "reasonableness" test must be considered in the context of the Lakes Preservation Act and any other pertinent state statutes. As provided in IC 14-15-3-17(a), a "person operating a motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake or channel of the lake...except for the purpose of trolling or for the purpose of approaching or leaving a dock, pier, or wharf or the shore of the lake...."

72. Similarly to Indiana, Michigan uses a "reasonableness" test to govern the interests among riparian owners on inland lakes. The surface may be used for boating, swimming, fishing, and similar purposes as long as they do not interfere with reasonable uses by other riparian owners. In applying the "reasonableness" test, Michigan has determined use of a pier may be limited to loading and unloading a boat, if the limitation is needed to allocate waters for reasonable use by another riparian owner. W. Mich. Dock v. Lakeland Inv., 534 N.W.2d 212 (Mich. App. 1995).

73. To fully enjoy their riparian rights, the Claimants need ready ingress and egress to their pier and their shoreline. That enjoyment may reasonably require temporary usage of Crooked Lake waters in proximity to their pier, and either east or west of their riparian area, for the purposes loading and unloading a boat. A temporary use of this nature does not unreasonably infringe on the riparian rights of the Respondents and is consistent with the Lakes Preservation Act and IC 14-15-3-17(a). The Claimants do not, however, reasonably require the usage of waters outside the Claimants' riparian area to permanently moor a boat. A usage of this nature would unreasonably interfere with the riparian rights of either the Ryans or the Casos, depending on whether the boat were moored west or east of the Claimants' riparian area.

FOOTNOTES

1. In Hoosier vernacular, the terms "dock", "pier", and even "slip" and "wharf", are used almost interchangeably. The Natural Resources Commission recently observed: "A 'pier' is a long

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narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes. A 'dock' is a slip or waterway that is between two piers or cut into the land for the berthing of boats." Snyder, et al. v. Linder, et al., 9 Caddnar 45, 49 (2002) citing Glossary, 6 Water and Water Rights, pp. 904 and 929 (The Michie Company 1991, 1994 Replacement). Although the name given is probably of little significance, for clarity and consistency, the definitions applied in the Snyder decision are also applied here.

With this backdrop, the structure extending into Crooked Lake from the Piering property is referenced in this order as a "pier".

2. Where these findings seek to report testimony as nearly to verbatim as possible, the testimony is set forth in quotations. References within quotation marks are informal and based upon notes of the Administrative Law Judge or an audio recording of the hearing. They are not in substitution for a transcript prepared by the court reporter.

3. The Respondents objected at hearing to introduction of the "Affidavit of Philip L. Gerard" (Claimant's Exhibit 1) and to the introduction of the "Affidavit of James F. Perau" (Claimant's Exhibit 2). The objections were taken under advisement. The Respondents moved for judgment on the evidence at the close of the Claimants' case on the basis there was no evidence of prescriptive easement (other than the inadmissible hearsay contained in the two affidavits) to show pier usage between 1986 and 1993.

IC 4-21.5 (the "Administrative Orders and Procedures Act"), and particularly IC 4-21.5-3-26(a), governs the admission of evidence in this proceeding:

Upon proper objection, the administrative law judge shall exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts. In the absence of proper objection, the administrative law judge may exclude objectionable evidence. The administrative law judge may admit hearsay evidence. If not objected to, the hearsay evidence may form the basis for an order. However, if the evidence is properly objected to and does not fall within a recognized exception to the hearsay rule, the resulting order may not be based solely upon the hearsay evidence.

Having re-examined the record, the Administrative Law Judge finds the objections should be sustained under IC 4-21.5-3-26(a). There was no evidence in the Claimants' case in chief, other than these affidavits, to support pier usage for 1986 through 1993. No recognized exception to the hearsay rule was presented.

Even so, the Respondents' motion for judgment on the evidence is denied. As described subsequently in Finding 61, the Claimants present a second theory for recovery. The second theory is not dependent upon the admissibility of the two affidavits.