CADDNAR

[CITE: McCulloch v. Day & Schramm, 12 CADDNAR 40 (2009)]

 

[VOLUME 12, PAGE 40]

 

Cause #: 08-044W

Caption: McCulloch v. Day & Schramm

Administrative Law Judge: Lucas

Attorneys: Thomas (Claimants); Bryan (Respondents); Boyko (DNR)

Date: April 9, 2009

 

FINAL ORDER

 

Part (1):  The dividing line between the riparian zones of the Public Boat Landing and the McCulloch Lake Lot is the common boundary of those parcels extended in a straight line from the shoreline into Jimmerson Lake.  The length of this riparian boundary is subject to the reasonableness test.

 

Part (2):  McCulloch must not place a pier, boat station, platform, similar structure, or moor a boat within ten feet from the dividing line identified in Part (1).  There shall be at least ten feet of clearance between any structure and any moored boats, southwesterly to the dividing line.  McCulloch is not prohibited from using the clearance area for loading and unloading boats or for active recreation.

 

Part (3):  The Respondents must not place a pier, boat station, platform, similar structure, or moor a boat in the riparian zone of the Public Boat Landing.   

 

Part (4):  Until ownership of the Public Boat Landing is determined in a civil action or in an administrative proceeding with jurisdiction, no person shall place a pier, boat station, platform, similar structure or moor a boat in the riparian zone of the Public Boat Landing.  This restriction does not prohibit use of the riparian zone of the Public Boat Landing for loading and unloading boats or for active recreation. 

 

Part (5):  The dispositions set forth in Part (1) through Part (4) may be modified as described in the Findings of Fact with Conclusions of Law.

 

 

FINDINGS OF FACT WITH CONCLUSIONS OF LAW

 

A. Statement of the Proceeding and Jurisdiction

 

1. On February 28, 2008, Michael McCulloch (“McCulloch”) filed correspondence with the Natural Resources Commission (the “Commission”) which alleged that Donald Day (“Day”) and Gerald Schramm (“Schramm”) placed piers within Jimmerson Lake in Steuben County, Indiana so as to prevent a public boat landing from being used as originally intended and so as to interfere with McCulloch’s reasonable exercise of riparian rights.  Included in the correspondence was a plat for the Leo’s Point Addition and the Lury’s Cove Addition.  Day and Schramm are collectively the “Respondents”.   

 

[VOLUME 12, PAGE 41]

 

2. Jimmerson 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 Commission at 312 IAC 11-1 through 312 IAC 11-5 to assist with implementation of the Lakes Preservation Act.  Scharlach v. Doswell, 11 Caddnar 420 (2008); Kinder v. Department of Natural Resources, 8 Caddnar 23 (1998); and Halstead v. Department of Natural Resources, 7 Caddnar 71 (1993).[1]

 

3. The correspondence referenced in Finding 1 initiated a proceeding before the Commission that is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA.

 

4. Stephen L. Lucas was appointed as the Commission’s administrative law judge for this proceeding. 

 

5. The Department of Natural Resources (the “DNR”) is the regulatory and licensing authority for the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  As such, the administrative law judge ordered the DNR to be added as a party and designated the DNR as a “Third Party Respondent”. 

 

6. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, including those derived from competing interests in the placement of piers, boat stations, platforms, and similar structures in public freshwater lakes.  IC 14-10-2-4 and IC 14-26-2-23.  Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008), transfer denied.

 

7. On March 4, 2008, the administrative law judge entered a “Notice of Prehearing Conference” and caused service of the notice, as well as the correspondence described in Finding 1, to be made upon Day, Schramm, and the DNR.  The Commission has jurisdiction over the persons of the parties.

 

8.  On April 2, 2008, the Respondents filed a “Motion to Dismiss”.  The administrative law judge entered a “Notice of Continuance of Prehearing Conference and Order for Schedule to Respond to Motion to Dismiss” on April 4, 2008.  On April 29, 2008, McCulloch filed a “Motion in Opposition to Respondent’s Motion to Dismiss”.

 

9. On May 5, 2008, the administrative law judge entered a “Notice of Proposed Dismissal” in which subject-matter jurisdiction was found to exist, but the correspondence described in Finding 1 was found insufficient to demonstrate an actionable claim.  An opportunity was provided to McCulloch to plead over.  312 IAC 3-1-10, Trial Rule 12(B)(6), and Indiana Office of Environmental Adjudication v. Kunz, 714 N.E.2d 1190 (Ind. App. 1999).

 

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10. On May 15, 2008, McCulloch pleaded over through the filing of a “Petition for Administrative Review”.  After examining this petition and the entirety of the record, the administrative law judge entered a “Vacation of Proposed Dismissal and Notice of Prehearing Conference” on May 27, 2008.  Following one continuance and rescheduling of the prehearing conference at the request of the Respondents, a prehearing conference was conducted as scheduled in Columbia City, Indiana on July 11, 2008.  All parties participated in the prehearing conference by their attorneys.

 

11. During the prehearing conference, the parties agreed and were then ordered by the administrative law judge to provide written statements of contentions by November 3, 2008.

 

12. McCulloch filed his statement of contentions on November 3, 2008 which stated in substantive parts:

 

(A) The Claimant asserts that the Respondents, Donald Day and Gerald Schramm, have been locating a pier in an area known as the “Boat Landing”, which property is public property to which the Days and Schramms have no lawful right.

 

(B) The placement of the pier within the “Boat Landing” is not the proper use of the “Boat Landing” and interferes with the proper use of the “Boat Landing”, i.e., its use for the purpose of trailering or launching of a watercraft.

 

(C) The Days and Schramms have no riparian rights nor is there any authority for the placement of a pier within the “Boating Landing”.  Their continued use of the “Boat Landing” to place a pier for the docking of their personal watercraft is improper and should not be permitted.

 

(D) The placement of the Day/Schramm pier within the “Boating Landing” interferes with the lawful right of your Claimants to place a pier extending from their riparian rights.

 

13. Day and Schramm filed their statement of contentions on November 3, 2008 which stated in substantive parts:

 

(A) The Respondents have the exclusive right to place a pier in the boating landing where they have placed it for over sixty years.

 

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(B) The boat landing is not a public easement.

 

(C) The Respondents’ placement of their pier does not interfere with claimant’s property rights or the use of his real estate.

 

(D) The Respondents have a right to erect a pier in the area referred to as the boat landing.

 

(E) The claimant has no right to place piers in the boat landing.

 

(F) The claimant is damaging the boat landing.

 

(G) The claimant should not be allowed to interfere with the use of the boat landing.

 

(H) The Respondents have adverse possession of the boat landing.

 

(I) The Respondents have adverse occupancy of the boating landing.

 

(J) The Respondents have a prescriptive easement of the boating landing.

 

(K) The Respondents have a right to use the boat landing as an easement and to place a pier.

 

14. The Department did not file statements of contentions.   

 

15. The statements of contentions by McCulloch and by the Respondents describe the issues for administrative review.

 

16. The statements of contentions include matters within the Commission’s jurisdiction and for which relief can be granted.

 

 

B. Burdens of Proof

17. At each stage of a proceeding, a party requesting that an agency take action or asserting an affirmative defense has the burden of going forward and the burden of persuasion (sometimes collectively referred to as the “burden of proof”) with the evidence.  IC 4-21.5-3-14(c).

18. Findings under AOPA must be based upon evidence that is “substantial and reliable”.  IC 4-21.5-3-27(d) and Citizens Action Coalition of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264 (Ind. App. 2003). 

19. McCulloch has the burden of proof for matters alleged in Finding 12.  To the extent Day and Schramm seek Commission action or assert affirmative defenses, the Respondents have the burden of proof for matters alleged in Finding 13.

 

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20. Typically, the standard of review under AOPA is “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Dowden v. Department of Natural Resources, 6 Caddnar 25 (2001). 

21. “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994).  The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true.  Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).

22.  Until 2005, the standard applicable to a claim of adverse possession was problematical.  In Fraley v. Minger, 829 N.E.2d 476, 483 (Ind. 2005), the Indiana Supreme Court synthesized and simplified the various holdings of Indiana’s appellate courts: 

 

Deferring to the majority of cases that have actually discussed the quantum of proof issue, we find that the heightened standard is appropriate.  Employing current terminology, however, we believe that ‘clear and convincing’ is a preferable way to describe the heightened standard needed to establish possession, thus embracing and superseding the variety of terms previously used.

 

23. As a consequence of Fraley v. Minger, in order to sustain a claim of adverse possession, the party asserting the claim must prove, by clear and convincing evidence, each of the following four elements:

1. Control: The person asserting adverse possession must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual”, and, in some ways, of “exclusive” possession).

 

2. Intent: The person asserting adverse possession must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right”, “exclusive”, “hostile” and “adverse”).

 

3. Notice: The person asserting adverse possession must demonstrate its actions with respect to the land were sufficient to give actual and constructive notice to the legal owner of the control and the intent elements (reflecting the former “visible”, “open”, “notorious”, and in some ways “hostile” elements).

 

4. Duration: The person asserting adverse possession must demonstrate control, intent and notice existing continuously for the required period of time (reflecting the former “continuous” element).

 

[VOLUME 12, PAGE 45]

 

24. Clear and convincing evidence has been described as more than a preponderance of the evidence but less than beyond a reasonable doubt.  Clear and convincing proof is shown where the truth of the facts asserted is highly probable.  Black’s Law Dictionary, 6^th Edition (West Publishing Co. 1990), p. 251.

 

25. IC 32-23-1-1 requiring 20 years of adverse use was not modified by the Indiana Supreme Court in Fraley v. Minger.

 

26. In the first decision following Fraley, the Indiana Supreme Court applied the same elements to a claim of prescriptive easement in Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005).  “This reformulation applies as well for establishing prescriptive easements, save for those differences required by the differences between fee interests and easements.”  Wilfong at 406.  Fraley and Wilfong were recently applied by the Commission in Havel & Stickelmeyer at 11 Caddnar 110, 121.

 

27. The Respondents have the burden of proof, by clear and convincing evidence, to demonstrate they are entitled to adverse possession or a prescriptive easement. 

 

28. In support of their theory of adverse occupancy, the Respondents cite two 19^th Century decisions: Root v. Beck, 9 N.E. 698, 109 Ind. 472 (Ind. 1887) and Dyer v. Eldrige, 36 N.E. 522, 136 Ind. 654 (Ind. 1894).  The foundations for these decisions are today subsumed within the concept of adverse possession and do not establish a legal theory distinct from adverse possession. 

 

 

C.  Limit of Geographic Authority under the Lakes Preservation Act

 

29. Generally, an Indiana state administrative agency has only those powers conferred on it by the Indiana General Assembly.  Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995). 

 

30. The only powers conferred on the Commission pertinent to this proceeding are those of the Lakes Preservation Act.

 

31. Antecedent to the Lakes Preservation Act was Acts 1947, c. 181, that were approved on March 12, 1947, and that provided in pertinent part:

 

…For the purpose of this act, the water or shoreline of a public fresh water lake shall mean the normal water line which has existed during the past ten years from the time of the passage of this act where the presence and action of the water are so common and usual as marked upon the soil of the bed a character distinct from that of the banks in respect to vegetation as well as the nature of the soil…. 

 

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32. Also antecedent to the Lakes Preservation Act was Acts 1947, c. 301, that were approved on March 13, 1947, and that provided in pertinent part:

 

...The natural resources and the natural scenic beauty of Indiana are declared to be a public right, and the public of Indiana are declared to have a vested right in the preservation, protection and enjoyment of all of the public fresh water lakes, of Indiana in their present state, and the use of such waters for recreational purposes.

...For the purpose of this act, the natural resources of public fresh water lakes shall mean the water, fish, plant life and minerals and the natural scenic beauty shall mean the natural condition as left by nature without man-made additions or alterations.....

....

...It shall be unlawful for any person...to encroach upon the...shore line of any such lakes as now exist...by excavating...below the water or shore line which had existed during the past ten years from the time of the passage of this act, without first securing written approval of the Indiana Department of Conservation [now the DNR].

 

33. From its antecedents in 1947, the geographic authority of the Lakes Preservation Act has ordinarily been the shoreline or water line and within a public freshwater lake.  Jansing v. DNR and Hawkins, et al.,11 Caddnar 8, 35 (2007).  The term “shoreline or water line” is today defined at IC 14-26-2-4.

 

34. In 2006, the Indiana General Assembly expanded the geographic authority of the Lakes Preservation Act to include the construction of a “wall” having its lowest point below the elevation of the shoreline or water line, and within ten feet landward of the shoreline or water line, measured perpendicularly.  P.L. 152-2006, SEC. 3 as codified at IC 14-26-2-23(a)(2).  The evidence here does not address the construction of a wall and does not support the application of this expanded geographic authority.

 

35. For purposes of this proceeding, the geographic authority of the Commission is limited to the Lakes Preservation Act along the shoreline or water line and within Jimmerson Lake.

 

36. The Claimant and the Respondents have presented evidence concerning alleged wrongful conduct landward of the shoreline or water line of Jimmerson Lake.  Because the Commission lacks authority to grant relief for any such grievances, the evidence is not considered here.  The Claimant and the Respondents are not foreclosed from seeking redress, in a court of jurisdiction, for wrongful conduct alleged to have occurred outside the shoreline or water line of Jimmerson Lake.

 

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D. Riparian Rights

 

37. The system of law dominant in Great Britain and in the eastern United States, including Indiana, in which owners of lands along a river, stream or lake have the right to reasonable use of the waters, and a correlative right protecting against unreasonable use by others, is riparian doctrine.  Baughn v. Town of Culver and DNR, 11 Caddnar 261, 264 (2008).

 

38. Property rights associated with rivers and streams were traditionally known as “riparian rights”, while those associated with lakes were traditionally known as “littoral rights”.  In Indiana, the single term “riparian rights” is today used to describe the rights of property owners along rivers, streams, and lakes.  Parkison v. McCue, 831 N.E.2d 118, 128, Footnote 3 (Ind. App. 2005).

 

39. “The first, and most basic, right of a riparian owner is access to the water.”  1 Dellapenna, Waters and Water Rights §6.01(a)(1) (LexisNexis 2007).  A pier or other structure in support of navigation can be a legitimate exercise of riparian rights.  Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).

 

40. A riparian owner along a public freshwater lake typically enjoys rights which include: (1) access to the public water; (2) the placement of a pier to the line of navigability; (3) the use of accretions; and, (4) reasonable use of the water for purposes such as boating and domestic use.  Parkison v. McCue at page 128.

 

41. Within the lateral boundaries of its terrestrial lands, a riparian owner can enjoy private ownership of a pier on a navigable waterway, although the ownership is subject to the navigational servitude of the United States and the public trust of the State.  Dellapenna, Waters and Water Rights §6.01(a)(2) (LexisNexis 2007).  In Indiana, these principles are also applied to public freshwater lakes. Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984) and Parkison v. McCue cited previously.

 

42. In 1963, McCulloch purchased Lot 1 in the Lury’s Cove Addition in Steuben County.  He and his wife maintain a residence on this real estate which is also known as 120 Lane 440, Jimmerson Lake, Fremont, Indiana.  On the west, the real estate borders Jimmerson Lake and is referenced as the “McCulloch Lake Lot”.

 

43. In 1970, McCulloch purchased two additional lots in the Lury’s Cove Addition.  These are Lot 15 and Lot 16.  Lot 15 is east and across Private Lane 440 (formerly known as Lakeview Drive) from the McCulloch Lake Lot.  Lot 16 is immediately east from Lot 15.  Lot 15 and Lot 16 do not border Jimmerson Lake and are collectively referenced as the “McCulloch Back Lots”. 

 

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44. Schramm owns Lot 2 in the Leo’s Point Addition in Steuben County (Schramm’s Lot).  Schramm’s Lot is also known as 115 Lane 440, Jimmerson Lake, Fremont, Indiana.  Day owns Lot 1 and parts of Lot 3 and Lot 4 in the Leo’s Point Addition (Day’s Lots).  Day’s Lots are also known as 4505 North 300W, Jimmerson Lake, Fremont, Indiana.

 

45. Schramm’s Lot and Day’s Lots border and are south of the McCulloch Back Lots.  As with the McCulloch Back Lots, Schramm’s Lot and Day’s Lots are east of Private Lane 440 and do not border Jimmerson Lake.

 

46. The Lury’s Cove Addition and the Leo’s Point Addition are adjacent to each other and are divided by a quarter-section line which is located within Section 32, Township 38 North, Range 13 East.  Lury’s Cove Addition is north of Leo’s Point Addition and both Additions are depicted on a single plat map (the “Plat Map”), the pertinent portions of which were admitted into evidence as Claimant’s Exhibit 1:

 

47. Immediately southwest of the McCulloch Lake Lot is a roughly triangular parcel of real estate which is depicted on the Plat Map as a “public boat landing” (the “Public Boat Landing”).  On the northwest, the Public Boat Landing borders Jimmerson Lake for approximately 35 feet.  On the south, the Public Boat Landing borders Lot 7 of Leo’s Point Addition, the owner of which is not a party.  The owner of the Public Boat Landing is a riparian owner and has riparian rights for a portion or zone of Jimmerson Lake that is adjacent to the Public Boat Landing.

 

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48. The Plat Map indicates the straight-line distance is 40 feet between the two lot lines of the McCulloch Lake Lot at the Jimmerson Lake shoreline.  The shoreline of the McCulloch Lake Lot is concave as viewed from the land, and McCulloch testified the length of this shoreline is approximately 56 feet.  McCulloch is a riparian owner and has riparian rights for a portion or zone of Jimmerson Lake that is adjacent to the McCulloch Lake Lot.

 

49. Schramm’s Lot and Day’s Lots do not convey to Schramm or Day riparian ownership along Jimmerson Lake.  They do not have riparian rights as a result of their ownership of these lots.

 

E. Payment of Property Taxes and Adverse Possession

 

50. In addition to the traditional elements for establishing adverse possession (now modernized as set forth in Finding 23), the Indiana General Assembly in 1927 adopted a statute making payment of real estate taxes a condition for acquiring title through adverse possession.  Acts 1927, ch. 42, §1, p. 119 (now codified, with some changes, at IC 32-21-7-1).  This statute today provides:

 

In any suit to establish title to land or real estate, possession of the land or real estate is not adverse to the owner in a manner as to establish title or rights in and to the land or real estate unless the adverse possessor or claimant pays and discharges all taxes and special assessments that the adverse possessor or claimant reasonably believes in good faith to be due on the land or real estate during the period the adverse possessor or claimant claims to have possessed the land or real estate adversely. However, this section does not relieve any adverse possessor or claimant from proving all the elements of title by adverse possession required by law.

 

51. The Indiana Supreme Court ignored the adverse possession tax statute in seven cases it decided over the seven years following enactment.  Dewart v. Haab, 849 N.E.2d 693, 696 (Ind. App. 2006).

 

52. One problem with IC 32-21-7-1 is that it does not readily apply to a frequent adverse possession situation where the dispute involves a relatively small difference in the location of a boundary line between parcels.  “Under Indiana’s system of property tax assessment, a small difference in the location of a boundary line between two parcels of real estate is pretty much invisible in either the assessment or the tax paid.”  D. McKinney, “Dealing with Unwritten Title Transfers”, Boundary Disputes: Resolving Client Conflicts, (National Business Institute, 2007), p. 74.

 

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53. Recognizing the problem, the Indiana Supreme Court in Echterling v. Kalvaitis, 126 N.E. 2d 573, 575 (Ind. 1955) held that proof an adverse claimant had paid real estate taxes specifically on the disputed parcel was not a necessary element for establishing a claim of adverse possession. 

 

54. In 2005, the Indiana Supreme Court reinstated the requirement of IC 32-21-7-1 in Fraley v. Minger, at 493, but also took into account the logic of Echterling v. Kalvaitis  and the legislature’s acquiescence in the latter case’s interpretation of the statute.  “[W]hen the adverse claimant has a reasonable and good faith belief that the claimant is paying taxes during the period of adverse possession”, the requirement of IC 32-21-7-1 may be satisfied even though the belief is mistaken.  If the disputed real estate is a narrow strip of land along the boundary between two parcels, the imprecision inherent in ambiguous tax records could easily allow both the claimant and the respondent to “reasonably believe” they were paying taxes on the disputed real estate.  If the disputed land is a more substantial parcel, greater evidence that the claimant paid the taxes may be required.  “Dealing with Unwritten Title Transfers” at p. 75 citing Dewart v. Haab at 697.

 

55. Schramm’s Lot and Day’s Lots do not border the Public Boat Landing.  A boundary dispute between two parcels is not at issue, and the logic of Echterling v. Kalvaitis  does not apply.  There is no basis upon which the Respondents could mistakenly but “reasonably believe” they were paying taxes for the Public Boat Landing.

 

56. Additionally, Donald Day testified he never paid taxes for the Public Boat Landing.  No person testified Gerald Schram ever paid taxes on the Public Boat Landing.  Although Michael McCulloch disavows ownership of the Public Boat Landing, he testified he believes he paid property taxes for several years on the Public Boat Landing based upon an error by the Steuben County Assessor.  This belief formed the primary basis upon which McCulloch sought a reduction from the Steuben County Assessor in the amount of his taxation.  Respondents’ Exhibit U.

 

57. The Respondents provide no basis for a determination that they ever paid, or even that they mistakenly believed they ever paid, property taxes for the Public Boating Landing.  The only party who may have paid property taxes is the Claimant.  The Respondents fail the requirements of IC 32-21-7-1.  As a matter of law, without evaluating the elements contained in Finding 23, the Respondents have not sustained their burden of proof for establishing adverse possession of the Public Boat Landing.  In the absence of this proof, the Respondents have no riparian rights based upon adverse possession.

 

F. Riparian Rights Derived from the Public Boat Landing

 

58. The Public Boat Landing is real estate that is adjacent to Jimmerson Lake and whose owner has riparian rights.  See, also, Finding 47.

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59. In their draft “Findings of Fact, Conclusions of Law and Orders”, the Respondents would have the Commission conclude that the Public Boat Landing “is not public in the sense of being governmentally owned or operated but rather is an easement which is part of the plat of Lury’s Cove[2] which includes the land owned by all parties involved in this action.”

60. The record establishes no basis for a finding the Respondents are riparian owners.  Even so, a determination that persons are not riparian owners “does not settle the question of whether they are entitled to install and use” a pier.  An easement may convey this right to the dominant estate.  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).  “The issue is not whether the easement holder attains riparian ownership status, but rather, whether he is entitled to use the riparian rights of the servient tenant who has given him access to the body of water bordering the servient estate.”  Emphasis supplied by court in Klotz at 1097. 

61. The intentions of a riparian owner who grants an easement are to be implemented in construing the easement.  In a plat or other recorded conveyance, clear language controls.  “Dominant owners of lakeside easements may gain the rights to erect and maintain piers, moor boats and the like by the express language of the creating instrument.”  Klotz at 1097 and 1098.  The Commission has determined a right-of-way for lake ingress and egress and “for the maintenance of a boat and swimming pier” expressed a clear intent and established the right to place a pier, even though the right-of-way was only three feet wide.  Havel & Stickelmeyer v. Fisher, et al. at 11 Caddnar 110, 117 (2007).

62. The current status of the law was summarized in Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App. 2005): 

 

Easements burdening land with riparian rights attached do not necessarily provide the easement holder use of these riparian rights.  Brown v. Heidersbach, 172 Ind. App. 434, 441, 360 N.E.2d 614, 619-20 (1977).  Instead, we first look to the express language of the easement.  Klotz v. Horn, 558 N.E.2d 1096, 1097-98 (Ind. 1990).  “An instrument creating an easement must be construed according to the intention of the parties, as ascertained from all facts and circumstances, and from an examination of all its material parts.”  Brown, 172 Ind.App. at 441, 360 N.E.2d at 620.  Courts may resort to extrinsic evidence to ascertain the intent of the grantors creating the easement only where the language establishing the easement is ambiguous.  Gunderson v. Rondenelli, 677 N.E.2d 601, 603 (Ind.Ct.App. 1997) (citing Klotz, 558 N.E.2d at 1098).  A deed is ambiguous if it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.  See Abbey Villas Dev. Corp. v. Site Contractors, Inc., 716 N.E.2d 91, 100 (Ind. Ct.App. 1999), trans. denied.

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63. In his draft “Findings of Fact and Conclusions of Law”, McCulloch would have the Commission conclude the Public Boat Landing is either owned by the State of Indiana or by Steuben County.

64. Implicit to the Commission’s regulatory structure for the Lakes Preservation Act is that a riparian owner may acquiesce in the placement of temporary piers and similar structures by another person.  See, for example, 312 IAC 11-3-1(a)(9).

65. Under the draft conclusion referenced in Finding 59, the Respondents might secure a right to place a pier or piers based upon an easement for their benefit which resulted from the grantor’s intent in establishing the Public Boat Landing.  Under the draft conclusion referenced in Finding 63, the Respondents might secure a right to place a pier or piers based upon the permission of the State of Indiana or Steuben County.

66. The Commission has construed the rights of persons claiming riparian rights based upon a common access in two recent proceedings.  Pipp v. Spitler, et al., 11 Caddnar 39 (2007) and Havel & Stickelmeyer v. Fisher.  In those proceedings, an effort was made to identify and serve the potential beneficiaries of the easement.  Where the county had a colorable claim to the property used for access, the board of county commissioners was served.  In addition, service by publication was made upon persons whose identities could not with reasonable effort be ascertained.

 

67. Although McCulloch and the Respondents all likely have standing to participate in a determination of the proper usage of the Public Boat Landing, they do not individually or collectively have the requisite interests to cause the Commission to make the determination.  Other persons needed for just adjudication of the proper usage of the Public Boat Landing are not included in this proceeding.

 

68. To determine proper usage of the Public Boat Landing, a diligent effort must be made to identify the owners of each of the parcels in Leo’s Point Addition and Lury’s Cove Addition and to provide service upon them.[3]  The Board of County Commissioners of Steuben County and the State of Indiana must be served.  In addition, notice by publication must be made in a newspaper of general circulation in Steuben County for service upon persons whose identities cannot with reasonable effort be ascertained.

 

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69. A determination of the proper usage of the Public Boat Landing is also essential to deciding the Respondents’ claim for a prescriptive easement.  If the Public Boat Landing is an easement, the intent of which is to allow the placement of piers by lot owners in Leo’s Point Addition and Lury’s Cove Addition, the placement of piers by the Respondents may not be hostile to the intent.  If the Public Boat Landing is owned by Steuben County, the remedy may be unavailable to the Respondents.  Other factual determinations and legal conclusions are possible.  No finding can properly be made as to whether the Respondents are entitled to a prescriptive easement to place a pier or similar structures within Jimmerson Lake and within the riparian zone of the Public Boat Landing.

 

G. Riparian Zones

 

70. Indiana common law establishes a framework and principles to help delineate the boundaries of the riparian zones within a public freshwater lake that are adjacent to the land of a riparian owner.  This framework and these principles have particular application to the installation of piers, boat stations, platforms, and similar structures.

 

71. A “reasonableness” test is applied to how far a pier may extend into a lake from the shoreline.  The installation of a pier by a riparian owner is unreasonable if the pier interferes with the use of a public freshwater lake by others.  “One point is well settled…the boundaries of riparian property do not extend to the middle of the lake.”  Any extension of a pier or similar structure beyond the point required for the mooring and launching of boats may be considered unreasonable.  Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).

 

72. The evidence does not support a finding that the length from shore of any of the existing structures at issue violates the reasonableness test.

 

73. Boundaries between neighboring riparian owners are delineated according to principles that seek to accommodate the diverse characteristics of Indiana’s numerous public freshwater lakes.  They are designed to provide riparian owners with equitable access to public waters.  Zapffe v. Srbeny at page 181 and Roberts v. Beachview Properties, LLC, et al., 10 Caddnar 125 (2005).

 

74. At hearing, McCulloch and the Respondents agreed that the riparian zones of the Public Boat Landing and the McCulloch Lake Lot should be delineated by extending their common boundary in a straight line into Jimmerson Lake. 

 

75. In part because the site enjoys the geographic benefits of a peninsula, this delineation is sufficient to provide the Public Boat Landing and the McCulloch Lake Lot with equitable access to public waters without apparent disruption to the enjoyment of their neighbors north and south.  The delineation agreed between McCulloch and the Respondents is appropriate.  Subject to the “reasonableness” test, the riparian zones of the Public Boat Landing and the McCulloch Lake Lot are properly delineated by extending their common boundary in a straight line into Jimmerson Lake.

 

[VOLUME 12, PAGE 54]

 

H. Setback of Structures from Common Boundary

 

76. The Commission policy for setbacks between riparian zones is set forth in “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (First Amendments) at www.in.gov/legislative/iac/20081210-IR-312080891NRA.xml.html.

 

To assist with safe navigation, as well as to preserve the public trust and the rights of neighboring riparian owners, there ideally should be 10 feet of clearance on both sides (for a total of 20 feet) of the dividing line between riparian zones. At a minimum, a total of 10 feet is required that is clear of piers and moored boats, although the area may be used for loading and unloading boats and for active recreation.

 

The policy cites Havel & Stickelmeyer v. Fisher at 119 and Rufenbarger, et al. v. Blue, et al., 11 Caddnar 185, 194 (2007).[4]

 

77. McCulloch should be ordered to refrain from placing a pier or mooring a boat within ten feet from the line described in Finding 75.  In effect, there should be at least ten feet of clearance between his pier or piers, and any of his moored boats, southwesterly to the extended common boundary line with the Public Boat Landing into Jimmerson Lake.  McCulloch should not be prohibited from using the clearance area for loading and unloading boats or for active recreation.

 

[VOLUME 12, PAGE 55]

 

78. In the absence of persons needed for just adjudication, the ownership of the Public Boat Landing cannot be determined in this proceeding.  Until ownership is determined, no person should place a pier or moor a boat within the riparian zone adjacent to the Public Boat Landing.  This restriction does not prohibit usage of the riparian zone for loading and unloading boats or for active recreation.

 

79. The clearance described in Finding 77 is delineated without prejudice to McCulloch, from seeking a modified clearance, through an individual license application to the DNR, made under the Lakes Preservation Act and 312 IAC 3-11-1 through 312 IAC 3-11-5. 

 

80. The restriction described in Finding 78 is made without prejudice to the owner of the Public Boat Landing from seeking authorization to place a pier or moor a boat, through an individual license application to the DNR, made under the Lakes Preservation Act and 312 IAC 3-11-5.  In addition, the owner of the Public Boat Landing is not disqualified by Finding 78 from acting under a general license.  If the owner of the Public Boat Landing acts under a general license, however, it should be ordered to refrain from placing a pier or mooring a boat within ten feet from the line described in Finding 75.  In effect, there should be at least ten feet of clearance between its pier or piers, and any of its moored boats, northeasterly to the extended common boundary line with the McColloch Lake Lot into Jimmerson Lake. 

 

I. The Relationship of the Respondents to the Public Boat Landing

 

81. The Respondents have not established they are the owners of the Public Boat Landing or that the owner of the Public Boat Landing has conferred upon the Respondents the opportunity to enjoy its riparian rights.  The Respondents should be ordered to refrain from placing a pier, boat station, platform or similar structure in the riparian zone of the Public Boat Landing.   

 

82. In an action which includes parties as outlined in Finding 68, the Respondents may seek to establish ownership of the Public Boat Landing.  As lot owners within Leo’s Point Addition or Lury’s Cove Addition, they may be determined to enjoy special rights in the management of the Public Boat Landing.  The disposition may provide for a common use if needed to accommodate the interests of multiple landowners having rights to access and use the riparian zone adjacent to the Public Boat Landing.  IC 14-26-2-23(e)(2)(A) and 312 IAC 11-3-4.  The disposition may determine whether the Respondents have established property rights through a prescriptive easement against the owner of the Public Boat Landing and an adjacent riparian owner or owners.  The disposition may identify Steuben County or the State of Indiana as the owner of the Public Boat Landing and establish a basis on which the Respondents may seek permission to place a pier or similar structure in the riparian zone adjacent to the Public Boat Landing.  The disposition may provide yet another result.

 

83. Depending upon the disposition of an action brought as outlined in Finding 68, the Respondents may establish entitlement to place a pier, boat station, platform or similar structure in the riparian zone adjacent to the Public Boat Landing.