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Cause #: 03-046L
Caption: Rufenbarger v. Lowe, et al.
Administrative Law Judge: Lucas
Attorneys: Snyder; Helm
Date: April 26, 2004
FINAL ORDER
1. The Respondents must limit the placement of piers, shore stations, and similar structures within Winona Lake to the lake-ward extension, from the shoreline of Lot 41 in the Plat of the 1st Addition to Yarnell Point, and described as follows:
(a) A tract commencing at the northwest corner of Lot No. 40, thence eastward approximately 130 feet, more or less, to the shore of Winona Lake, thence northward along the shore of Winona Lake eight (8) feet, thence westward by parallels eight (8) feet parallel to the north lot line of Lot No. 40 to the edge of the right-of-way of Country Club Drive (eight (8) feet of the place of beginning) thence southward along the right-of-way of Country Club Drive eight (8) feet to the place of beginning;
(b) An additional ten (10) feet of northward, parallel, and adjacent to the lake-ward extension of the tract described in subpart (a).
(c) Where the areas described in subpart (a) and subpart (b) extend only so far into Winona Lake as not to interfere with the use of adjoining property owners or the enjoyment of the public trust.
2. The Claimants must limit the placement of piers, shore stations, and similar structures within Winona Lake to a length from the shoreline that is only so far out as not to interfere with the use of adjoining property owners or the enjoyment of the public trust.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Stephen B. Rufenbarger and Constance A. Rufenbarger (the "Claimants") are the owners of the following described real estate located adjacent to Winona Lake in Kosciusko County, Indiana:
Lot 40, together with the north 25 feet of Lot Number 39 in the 1st Addition to Yarnell Point.
Also, that portion of the public easement described on the Plat of the 1st Addition to Yarnell Point, as recorded in Plat Book 4, page 98, in the Office of the Recorder of Kosciusko County, Indiana, lying south of the north line of Lot Number 40 extended to the water's edge and north of the south line of the North 20 feet of Lot Number 39, extended to the water's edge.
The exact location of Claimants' real estate is described in the survey of J. K. Walker and Associates, P. C., dated January 29, 2001 and contained as part of Claimants Exhibit 2.
2. Cynthia (Lowe) Elliott; Wilmore L. Shaske; Patricia I. Shaske; Larry Downs; Londa Downs; Cameron D. Bayne; Kathy L. Bayne; Betty M. Clarke, Trustee; Carl E. Ellis; Patricia S. Ellis;
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Don Faas; Loni Faas; and, Naomi A. Hartle (the "Respondents") are the owners of various tracts in Kosciusko County. These tracts are not within the 1st Addition to Yarnell Point and are not adjacent to Winona Lake.
3. The plat of the 1st Addition to Yarnell Point (the "Plat") was recorded on February 10, 1926 and shows an area described as a "public easement" between the easterly lot lines of the lots in the Plat and the shoreline of Winona Lake. In addition, between Lots 15 and 16, Lots 20 and 21, Lots 24 and 25, Lots 29 and 30, Lots 34 and 35, Lots 40 and 41, and Lot 46 and an adjacent tract, there are strips of land typically 15 feet wide. The strips appear to provide access from the public street to the public easement. These strips begin at the edge of the right-of-way of a public street and end at the westerly edge of the public easement along the shoreline. As platted in 1926, the lots in the 1st Addition to Yarnell Point do not extend to the shoreline of Winona Lake, but rather they terminate at the westerly edge of the public easement.
4. In 1992, Norman L. Hoffer and Betty L. Hoffer (the "Hoffers") were the owners of Lot 41 in the Plat. On October 2, 1992, the Hoffers granted a nonexclusive easement to the Respondents or the Respondents' predecessors in interest (the "easement")[FOOTNOTE 1]. The easement was set forth in an instrument titled "Grant of Use" [Respondents Exhibit G] and described a lineal, rectangular parcel more particularly defined as:
A tract commencing at the northwest corner of Lot No. 40, thence eastward approximately 130 feet, more or less, to the shore of Winona Lake, thence northward along the shore of Winona Lake eight (8) feet, thence westward by parallels eight (8) feet parallel to the north lot line of Lot No. 40 to the edge of the right-of-way of Country Club Drive (eight (8) feet of the place of beginning) thence southward along the right-of-way of Country Club Drive eight (8) feet to the place of beginning....
5. In the Grant of Use, the Hoffers also provided "an additional ten (10) feet of use" of the Hoffers' "riparian rights within the waters of Winona Lake, so as to allow flexibility in the docking of boats; this additional grant will extend docking of boats northward into waters that are otherwise the riparian waters of [Hoffers] and will grant a total of eighteen (18) feet of riparian rights, including eight (8) feet of the easement granted herein and ten (10) feet additional northward area parallel and adjacent thereto." [Emphasis supplied by the Administrative Law Judge.] Respondents Exhibit G.
6. On March 15, 1993, the Common Council of the City of Warsaw vacated the public easement between the southerly line of Lot 37 (extended to the shoreline) and the northerly line of Lot 40 (extended to the shoreline). Claimants Exhibit 5.
7. The vacation described in Finding 6 was made following approval by the Claimants, on February 15, 1993, of a written "Representation to City of Warsaw Regarding Vacation of Public Way". This document acknowledged the existence of property use disputes, similar or identical to the dispute here at issue, and specified the Claimants did "not expect nor intend the [vacation] approval of the City Council...to in any way affect, change, alter or rule upon the disputes." Respondents Exhibit L.
8. The Claimants are riparian owners.
9. The Respondents are not riparian owners. Yet 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." An easement holder does not have riparian ownership status but may use the riparian rights of the servient tenant who has given access to the lake. 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).
10. The intentions of the riparian owner are to be implemented in construing an easement. Clear language in a plat or other recorded conveyance controls. As applied to this proceeding, the Grant of Use by the Hoffers[FOOTNOTE 2] was sufficient to accord to the Respondents a nonexclusive easement to the shoreline. The Grant of
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Use expressed unambiguously an intention that the easement would confer riparian rights. In addition to an eight-foot corridor extending lake-ward from the terrestrial easement, ten more feet of shoreline were provided for enjoyment of the Respondents. The area where the Respondents enjoy riparian rights under the easement is bounded on the south by the northern boundary of Lot 40 extended into Lake Winona.
11. Evidence presented at hearing indicated that, before the Hoffers granted the easement, the Respondents or the Respondents' predecessors in interest used the shoreline of the public easement for recreational purposes. Temporary piers were placed. Although these piers seem most often to have been located north of the northern boundary of Lot 40 extended into Lake Winona, both testimony and exhibits suggest they were sometimes also placed south of that line.
12. Over the passage of time, usage of the site has been dynamic and expanding. Although most of the exhibits are inconclusive as to positioning of piers and related structures, they demonstrate an evolution of use patterns typical of desirable public freshwater lakes. One early photograph shows an isolated pier extended from a wooded knoll. Respondents Exhibit R. A photograph taken in 1975 depicts Betty Hoffer standing next to a modest temporary pier[FOOTNOTE 3] in an area that is otherwise open or nearly so. Respondents Exhibit S. In 1991, a boat and shore station were added. Cindy Elliott Testimony, p. 73. By 1995, the pier had grown longer and more substantial, with multiple vessels moored. Respondents Exhibit X and Respondents Exhibit Y. A 2002 photograph also evidences evolution and expansion of usage. Respondents Exhibit AA.
13. Upon proper facts, a prescriptive easement can establish access to the shoreline of a public freshwater lake, including the opportunity to place a pier in the lake. Bromelmeier v. Brookhart, 570 N.E.2d 90 (Ind. App. 1991). Yet "[p]rescriptive easements are not favored by the law.... 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." On land, physical evidence can help establish adverse use, and an unexplained use of a path or road for over 20 years offers a presumption of adverse use. There is not a similar presumption "in favor of a party trying to establish a prescriptive easement for the recreational use of a body of water.... Recreational use (especially of water which leaves no telltale path or road)...seems...likely to be permissive" rather than adverse. Carnahan v. Moriah Property Owners Ass'n, 716 N.E.2d 487 (Ind. 1999).
14. In the instant proceeding, the evidence does not demonstrate an uninterrupted use by the Respondents for 20 years of the water body south of the northern boundary of Lot 40 extended into Lake Winona. The introduction of multiple vessels and covered shore stations is a change in character from the modest piers used in earlier times. Even construing the evidence most favorably to the Respondents, current usage lake-ward of the shoreline did not begin earlier than 1991. Additionally, usage appears to have been permissive, with the Hoffers on Lot 41 acquiescing or even encouraging public usage by their neighbors.
15. Any rights of the Respondents to place piers on Winona Lake are derived from the easement.
16. The instant proceeding cannot, with specificity, address the relationship between the Claimants, as owners of Lot 40 (where the public easement has been vacated), and the owners of Lot 41 (where the public easement has not been vacated). The owners of Lot 41 may have riparian rights, but they are not parties to this proceeding. The owners of Lot 41 would be necessary parties in interest in any disposition that might be to their prejudice.
17. In Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984), the court noted there was "no set rule in Indiana for establishing the extension of boundaries into a lake", as between riparians. The court then adopted Wisconsin law as articulated in Nosek v. Stryker. Where a shoreline approximates a straight line and where the onshore property boundaries are perpendicular to the shore, the boundaries are determined by extending the onshore boundaries perpendicular to the shoreline. Riparian rights do not extend to the center of a public freshwater lake. Rather, "the State of Indiana holds in trust for public use
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and enjoyment all freshwater lakes. The opportunity to place a pier is subject to lateral limitation for the enjoyment of other riparians and to perpendicular limitation for the enjoyment of the public. A riparian owner "may build a pier within the extension of his shore boundaries only so far out as not to interfere with the use of the lake by others."
18. In the instant proceeding, the shoreline from the northern boundary of Lot 40 to the southern boundary of Lot 41, is concave viewed from the perspective of those land parcels. The factual context of Bath is not repeated, but Nosek v. Stryker that is cited favorably in Bath, addresses this circumstance. When the shoreline is irregular, and drawing lines at right angles to the shoreline would not accomplish a just apportionment, the boundary lines should divide the available navigable waterfront in proportion to the amount of shoreline of each owner taken according to the general trend of the shore.
19. If the Claimants were to use the extended northern boundary of Lot 40 an excessive distance into Winona Lake, both the public trust and the riparian rights attached to properties northerly from Lot 40 would be violated. The extended boundary of the northern boundary of Lot 40 and the extended boundary of the southern boundary of Lot 41 intersect even before they reach the shoreline. Claimants Exhibit 2. Indeed, the extended northern boundary of Lot 40 would intersect the extended northern boundary of Lot 41 before passing a great distance into Lake Winona. Stated as the general principle of Bath v. Courts, the Claimants "may build a pier within the extension of [their] shore boundaries only so far out as not to interfere with the use of the lake by others."
FOOTNOTES
1. In these Findings, the phrase "public easement" is used to describe the common area, immediately along the shoreline of Winona Lake, established in 1926 by the Plat. The term "easement" refers to the Grant of Use made by the Hoffers in 1992.
2. Lot 41 does not extend to the shoreline, and the public easement separating Lot 41 from Winona Lake has not been vacated. Whether the Hoffers actually enjoyed riparian ownership in 1992 is problematical, depending upon what interpretation a court might give to the intent and purpose of the public easement. This issue is not addressed in the instant proceeding. The Claimants do not, however, contest the Respondents' usage of Lake Winona north of the line formed by Lot 40 extended.
3. To be noted is that Betty Hoffer may have had a superior legal position to the Respondents relative to use of the shoreline. For the reasons outlined in Footnote 2, she may have enjoyed riparian rights. Also, the location of the 1953 pier, relative to the current dispute, cannot be determined from Respondents Exhibit S.