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Cause #: 03-146L
Caption: Hayman v. DNR and Thorne v. Wetstone [03-147L]
Administrative Law Judge: Lucas
Attorneys: Eberhard, Jr. and Weimer (Hayman); Baird (DNR); Serban (Thorne); pro se (Wetstone)
Date: February 9, 2004
FINAL ORDER
1. Richard Hayman and Judy Hayman and the other owners Lots 2 through 21, inclusive, of Zabona's Witmer Lake Estates and the First Addition to Zabona's Witmer Estates, have correlative rights to an use an easement adjacent to Lot 22 for access to a channel of Witmer Lake, LaGrange County. The access provides 70 feet of shoreline along the channel on which the easement holders may place piers and similar structures. The "warning record" issued by the Department of Natural Resources's Conservation Officer is vacated. With respect to these matters, the Haymans are granted summary judgment.
2. In exercise of the rights conferred upon them, the Haymans and other easement holders must not unreasonably interfere with one another, with a riparian owner, with the general public in its enjoyment of the public trust, or with the resources protected by the Lakes Preservation Act. There are material issues of fact as to whether the Haymans and others have exercised their rights so as not to unreasonably interfere with these protected interests. These consolidated proceedings are remanded to the Department of Natural Resources to determine, under IC 14-26-2-23(3)(A), any dispute as to reasonable use. An affected person who is dissatisfied with the Department's determination may then seek administrative review to the Natural Resources Commission under IC 14-26-2-23(3)(B).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. These consolidated proceedings arise from disputes over the usage of Witmer Lake in LaGrange County, Indiana. The subject of Administrative Cause Number 03-146L was administrative review by Richard Hayman and Judy Hayman (the "Haymans") from a "warning record" by Department of Natural Resources ("DNR") Conservation Officer, Robert J. Duff, alleging the Haymans placed a "pier in violation of general permit to wit: No riparian rights." The subject of Administrative Cause Number 03-148L is a complaint by Ronald Thorne and Jacquelyn Thorne (the "Thornes") alleging that the usage of an easement by Connie Whetstone and the Haymans unreasonably infringed upon the usage by the Thornes and other easement holders.
2. Witmer Lake is a "public freshwater lake" and is subject to IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act") and rules adopted by the natural resources commission (the "Commission") under the Lakes Preservation Act at 312 IAC 11. The DNR is the state agency responsible for administration of the Lakes Preservation Act.
3. The parties to these consolidated proceedings are either claimants or are respondents upon whom
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personal service has been obtained.
4. These consolidated proceedings are governed by IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The Commission is the "ultimate authority" under AOPA. IC 14-10-2-3. The Commission has adopted rules at 312 IAC 3-1 to assist in its implementation of AOPA.
5. The Commission has jurisdiction over the subject matter of and the parties to these proceedings.
6. The Haymans filed a "Motion for Summary Judgment" on September 26, 2003. The Thornes filed a "Memorandum of Law in Opposition to Motion for Summary Judgment Facts" on November 14, 2003. Both the Haymans and the Thornes filed supporting documentation. The Haymans also filed a reply to the Thornes' memorandum and a "Motion to Strike Response in Opposition to Motion for Summary Judgment and Motion to Set for Hearing" on December 3, 2003. None of the parties other than the Haymans and the Thornes have filed pleadings or documents pertaining to summary judgment.
7. Summary judgment is appropriate only where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).
8. As the moving party, the Haymans have the burden of proving they are entitled to summary judgment.
9. Summary judgment applies to these proceedings under IC 4-21.5-3-23. Subsections (a) and (b) provide in pertinent part:
(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.
(b) . . . The [summary] judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law.
10. After the filing of a motion for summary judgment with supporting affidavits and exhibits, the requirements of subsection (f) apply:
(f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party's pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth facts showing that there is a genuine issue in dispute. If the
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adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party.
11. The Thornes do not substantially dispute the facts set forth in the "Memorandum of Law in Support of Motion for Summary Judgment" filed by the Haymans. "To the extent that [the Thornes] have any disagreement with the facts as set forth, they believe that the disputed facts are irrelevant to the decision" to be made by the Commission. Memorandum of Law in Opposition to Motion for Summary Judgment Facts.
12. Louis Zabona and Sandra Zabona (the "Zabonas") platted Zabona's Witmer Lake Estates and the First Addition to Zabona's Witmer Estates in 1978 and 1979, respectively. "Channel access" was platted in through an easement adjacent to Lot 22 in Zabona's Witmer Lake Estates. The easement provides access to 70 feet of shoreline along the channel. The easement is 162.45 feet long, extending from the shoreline to Channel View Drive.
13. The restrictions in the Plats for both Zabona's Witmer Lake Estates and the First Addition to Zabona's Witmer Estates grant lake access as follows: "The lake access adjacent to Lot 22 is for the use of the owners of Lots 2 through 21 inclusive, and the maintenance of said easement shall be shared equally between said Lot owners and assignees."
14. In 1985, the Zabonas sold to Tod E. Stahley ("Stahley") all unsold lots in Zabona's Witmer Lake Estates and all unsold lots in the First Addition to Zabona's Witmer Lake Estates, including platted roads, and the easement for channel access. Stahley is the title owner of Lot 22 and the adjacent easement for channel access.
15. On or about May 10, 1986, Stahley contracted with the Haymans for the sale of Lot 14 and Lot 15 in the First Addition to Zabona's Witmer Lake Estates. Lot 14 and Lot 15 do not abut the shoreline of Witmer Lake. Stahley provided in a Corrective Warranty Deed received by the LaGrange County Recorder on July 24, 2003 that the Haymans received "non-exclusive dock[FOOTNOTE a.] rights easement and riparian rights on channel of Witmer Lake adjacent to property platted as channel access adjacent to Lot 22 of Zabona's Witmer Lake Estates".
16. Don Kensey, a previous owner of Lot 12, placed a pier on the channel before the Haymans took possession of Lot 14 and Lot 15. The Haymans shared the pier with Kensey until he sold his property and relocated to Minnesota. In 1998, the pier was replaced by neighborhood efforts. Ronald Thorne built the pipe frame for the pier, and the Haymans provided other materials. The Haymans have regularly used the pier since then.
17. Mark Krahulec is the owner of Lot 6 and Lot 7 in the First Addition to Zabona's Witmer Lakes Estates. In approximately 1995, Krahulec placed a pier adjacent to Lot 22. He occasionally used the pier until its removal in 2003.
18. Connie Whetstone is the owner of Lot 8 in the First Addition to Zabona's Witmer Lake Estates. In approximately 2002, Whetstone placed a pier adjacent to Lot 22. She used the pier until 2003 when, at the request of the DNR, she removed it. At the time, there were three piers along the shoreline access adjacent to Lot 22.
19. On December 3, 2003, the Haymans filed their "Supplement to Designation of Materials" in support of their summary judgment motion by which they tendered the December 2, 2003 Affidavit of Louis Zabona.
20. In his Affidavit, Louis Zabona states in substantive part:
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1. That he platted Zabona's Witmer Lake Estates in 1978 and the same is recorded in Plat Book 5 page 119 in the Office of the Recorder of LaGrange County, Indiana.
2. That he platted the First Addition to Zabona's Witmer Lake Estates in 1979 and the same is recorded in Plat Book 5 page 127 in the Office of the Recorder of LaGrange County, Indiana.
3. That a 70' lake easement was platted adjacent to Lot 22 in Zabona's Witmer Lake Estates.
4. That Restriction #2 on both Plats is as follows:
"2. The lake access adjacent to Lot 22 is for the use of the owners of Lots 2 through 21 inclusive, and the maintenance of said easement shall be shared equally between said Lot owners and assignees."
5. That it was his intent to grant dock rights upon the access easement for the purpose of lake access.
21. The Haymans and other lot owners in Zabona's Witmer Lake Estates and the First Addition to Zabona's Witmer Lake Estates, who do not own realty along the shoreline of Witmer Lake, are not riparian owners.
22. A finding that persons are not riparian owners does not settle the question of whether they are entitled to install and use a pier "in the proper enjoyment of their easement for right-of-way purposes." The question is whether the person who created the easement intended that the easement holders could construct, use, and maintain a pier. Klotz v. Horn, 558 N.E.2d 1096, 1098 (Ind. 1990).
23. "[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." Badger v. Hill, 404 A.2d 222, 226, cited in Klotz at 1098.
24. The purpose of the lake easement adjacent to Lot 22 is ambiguous.
25. The unrefuted extrinsic evidence is that the access has been used historically for pier placement. A previous owner of Lot 12, Don Kensey placed a pier along the easement. The Haymans shared the pier with Kensey until he sold the property. In 1998, the pier was replaced by neighborhood efforts. Ronald Thorne built the pipe frame for the pier, and the Haymans provided other materials. Since then, the Haymans regularly used the pier. Mark Krahulec is the owner of Lot 6 and Lot 7, and he placed a pier along the easement in approximately 1995. Connie Whetstone placed a pier adjacent to the easement beginning in 2002[FOOTNOTE b.].
26. The subjective intent of Louis Zabona, in creating the easement, was to grant to easement holders the right to place piers along the shoreline.
27. The facts are not in material dispute. The Haymans have sustained the burden of showing that they, and persons similarly situated, have nonexclusive rights to place piers along the 70 foot easement adjacent to Lot 22.
28. The "warning record" by the DNR's Conservation Officer is vacated. Although they are not riparians, the Haymans and other similarly situated easement holders are authorized to enjoy the riparian rights granted by the Zabonas[FOOTNOTE c.].
29. In the installation of a pier on a public freshwater lake, a riparian must meet the "reasonableness" test. The use must not unreasonably interfere with the rights of others. Zapfee v. Srbeny, 587 Ind. App. 177, 181. A riparian owner's rights on a public freshwater lake must also be balanced with the rights
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of the public in their enjoyment of the public trust. Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001). These limitations apply to easement holders as well as to riparian owners.
30. In exercising their nonexclusive rights to place piers along the 70 foot easement adjacent to Lot 22, the Haymans and others similarly situated may not unreasonably interfere with the rights of other easement holders, riparians, or the public trust. The current record does not support a finding as to the reasonableness of the placement of piers by the Haymans and others similarly situated.
FOOTNOTES:
a. "In Hoosier vernacular, the terms 'dock', 'pier', and even 'slip' and 'wharf', are used almost interchangeably. The Natural Resources Commission has observed: 'A "pier" is a long 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.'" Piering v. Ryan and Caso, 9 Caddnar 123, 130 (2003), citing Snyder, et al v. Linder, et al., 9 Caddnar 45, 49 (2002) and Glossary, 6 Waters and Water Rights, pp. 904 and 929 (The Michie Company 1991, 1994 Replacement). Although the name given is of little significance, for clarity and consistency, the definitions applied in Piering and in Snyder are applied here. In this context, the structures extending into the channel next to Zabona's Witmer Lake Estates are referenced as "piers".
b. The attempted transfer of easement rights by Stahley to the Haymans of easement rights, as described in Finding 15, is not material to determining whether extrinsic evidence supports an intention that the easement conferred rights to place piers. The attempted transfer could form an independent basis for determining the Haymans are entitled to place piers, but only if a finding is made that the resulting new easement rights would not impermissibly burden the existing easement. To make this finding, material issues of fact might need resolution. Reference to Finding 15 is unnecessary to determining sufficient extrinsic evidence exists. Other evidence is cumulative and unrefuted. Disposition of Stahley's attempted transfer is unnecessary to the disposition of these consolidated proceedings.
c. The legal basis for issuance of the DNR's "warning record" was not offered into evidence. The reference in Finding 1 suggests the "warning record" was founded upon an interpretation that, to place a temporary pier, a person must be a riparian owner. If so, the interpretation was erroneous as a matter of law. As reflected in Klotz v. Horn cited previously, the Indiana common law anticipates a riparian owner may properly confer upon an easement holder the opportunity to enjoy riparian rights, including the placement of piers. The Indiana rules governing general licenses for the placement of temporary piers are compatible with the common law. A person can qualify for a general license if a pier is "placed by or with the acquiescence of a riparian owner." 312 IAC 11-3-1(a)(8). Emphasis supplied by administrative law judge.