CADDNAR

[CITE: Edwards v. Pressler and Tomei, 12 CADDNAR 321 (2011)]

 

 

[VOLUME 12, PAGE 321]

 

Cause #: 10-162W

Caption: Edwards v. Pressler and Tomei

Administrative Law Judge: Lucas

Attorneys: pro se (Edwards); pro se (Pressler); Benson (Tomei); Wyndham (DNR)

Date: June 9, 2011

 

 

NOTICE OF FINAL ORDER TO DISMISS GEORGE EDWARDS AS A PARTY

 

Final Order

 

The parties having had a full opportunity to present their positions, a final order is issued to dismiss George Edwards as a party.      

 

 

Findings

 

1. On May 25, 2011, a “Motion to Dismiss George Edwards as a Claimant and Claimant’s Claim” (the “Motion to Dismiss”) was filed by the attorney for Nicole L. Tomei and Michael A. Tomei (collectively the “Tomeis”).

 

2. The Motion to Dismiss stated “George Edwards represented he had ownership interest in Lots Six (6) and Seven (7) in the Plat of Oak Hill[1]…in a letter to the Natural Resources Commission dated September 24, 2010.” 

 

3. In the September 24, 2010 letter to the Natural Resources Commission (the “Commission”), George Edwards stated pier placement on Lake James in Steuben County by all or some of the Respondents was made “on or over my property line.”

 

4. Lake James in Steuben County is a “public freshwater lake” and subject to the jurisdiction of the Commission under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”).  Roebel, et al. v. Vorndran, et al., 11 Caddnar 250 (2008).  In evaluating the licensure of excavations, fills, and construction within a public freshwater lake, the “interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake” must be considered.  IC 14-26-2-23(c)(5).  On administrative review, the Commission is charged with making “a determination of a dispute among persons with competing riparian interests.”  IC 14-26-2-23(e)(3).

 

5. The Motion to Dismiss stated: “…during a Pre-Hearing Conference on October 29, 2010, when Respondent Scott Pressler questioned whether George Edwards owned the Real Estate”, Edwards responded “that several years ago he transferred the Real Estate to his son, Marck C. Edwards, but retained a life estate.” 

 

6. In support of the statement described in Finding 5, the Motion to Dismiss incorporates by reference a portion of a “Report of Prehearing Conference and Notice of Telephone Status Conference” entered on November 3, 2010.  In pertinent part, page 2 of the Report states:

 

George Edwards stated he owns real estate along Lake James in Steuben County.  His neighbor, who also owns realty along Lake James, is William Houghton.  Edwards said Houghton created a 15-foot wide easement for an off-lake lot to access Lake James.  Edwards contends Scott Pressler’s use of the easement, with the configuration of a pier that extends into the lake as well as boats moored to the pier, causes an encroachment on Edward’s property.

 

Scott Pressler disagrees that he has encroached on Edward’s property.  Pressler added he is the contract purchaser of the off-lake lot and the easement.  Nicole Tomei is the contract seller.  Pressler also questioned whether George Edwards owns the real estate where he contends there is an encroachment.

 

George Edwards responded that several years ago he transferred the real estate to his son, Mark C. Edwards, but retained a life estate.  As a result, George Edwards contends he has a property interest in the real estate….

 

7. The Motion to Dismiss stated additionally: “by letter dated April 11, 2011, George Edwards represented he had an ownership interest in the Real Estate which resulted in his Claim not being dismissed” by the Commission.  In the April 11, 2011 letter, George Edwards represented “my neighbors’ placement of their pier…is encroaching upon my property and not in keeping with the concept of Riparian Rights.”  Also, he represented: “Pressler is not only violating my property line but also my Riparian Rights….  Furthermore, in the course of using this pier, there are invariably other boats that moor on the side of the pier which puts them wholly in front of my property.”

 

8. The Motion to Dismiss stated additionally: “George Edwards a/k/a George C. Edwards has not had any ownership interest in the Real Estate since a Quitclaim Deed dated June 12, 1979 was recorded February 3, 1986 in Deed Record Vol. 200, Page 394 of the Records of the Recorder of Steuben County, Indiana.”

 

9. A certified copy of the Quitclaim Deed described in Finding 8 was attached to the Motion to Dismiss.  The certified copy provides in pertinent parts:

 

QUIT-CLAIM DEED

 

This indenture witnesseth that GEORGE C. EDWARDS, unmarried and over the age of twenty-one (21) years, of Allen County in the State of Indiana Releases and quit claims to MARK C. EDWARDS of Allen County in the State of Indiana for and in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the following Real Estate in Steuben County in the State of Indiana, to wit:

 

 

[VOLUME 12, PAGE 322]

 

 

Lots numbered Six (6), Seven (7), and Eight (8) in the plat of Oak Hill according to the recorded plat thereof, Lake James, being in Section Four (4), Township Thirty-seven (37) North, Range Thirteen (13) East;

 

Also a part of the Northwest fractional quarter of Section 4, Township 37 North, Range 13 East, bounded as follows:

 

Beginning at a point on the extended south line of lot numbered five (5) of the recorded Plat of Oak Hill, at Lake James, where said extended south line intersects the west line of the driveway running along the west side of said plat of Oak Hill; running thence west on said extended south line to the east line of the Edward C. Meyer et al black top public highway; thence south easterly along the east line of said highway to the west line of said driveway along the west side of said Plat of Oak Hill; thence north 10 degrees 45 minutes west to the place of beginning.

 

Subject to all restrictions, limitations, and easement of record.

 

It is grantor’s intention to release to grantee all interest which he has in and to said real estate as a result of a life estate reserved i[n] a deed dated November 2, 1973 and recorded January 21, 1974 at Deed Record 154, Page 191.

 

The Quit-Claim Deed was signed by George C. Edwards and his signature witnessed on June 12, 1979.  The Quit-Claim Deed was received for record by the Steuben County Recorder on February 3, 1986.

 

10. During a prehearing conference held on June 3, 2011, the Tomeis’ attorney summarized the Motion to Dismiss and requested its consideration by the Commission.

 

11. George Edwards responded to the Motion to Dismiss by stating that he never represented to the Commission’s administrative law judge that he “has” a life estate.  Instead, George Edwards stated he had represented to the administrative law judge that he “had” a life estate, emphasizing use of the past tense.

 

12. A “life estate” is a freehold interest in land and is of a duration which is confined to the life of a particular human being or to the happening or not happening of an uncertain event.  Long v. Horton, 133 N.E. 2d 568, 126 Ind. App. 651 (Ind. App. 1956). 

 

13. A “freeholder” has an interest in land, the duration of which is not fixed by a period of time.  Bd. of Lucas Cty. Commrs v. Wadesville Twp. Bd. of Trustees, 870 N.E. 2d 791, 171 Ohio App. 3d 354 (Ohio App. 2007). 

 

14. The owner of a life estate does not have unfettered control over the use of the property but must consider the interest of the remainderman as well.  In re Estate of Owen, 855 N.E.2d 603 (Ind. App. 2006).

 

15. Generally, a property owner whose property abuts a lake, river, or stream possesses certain riparian rights associated with ownership of the property.  Center Township Corp. v. City of Mishawaka, 882 N.E.2d 762 (Ind. App. 2008).

 

16. “The first, and most basic, right of a riparian owner is access to the water.”  1 Dellapenna, “Introduction to Riparian Rights”, Waters and Water Rights §6.01(a)(1) (LexisNexis 2009).  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).

 

17. 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, 831 N.E.2d 118, 128 (Ind. App. 2005).

 

18. Before granting the Quit-Claim deed to his son in 1979, George Edwards had a life estate and Mark Edwards was the remainderman for the site at issue.  As such, they shared riparian ownership and each had property rights.  Under the Lakes Preservation Act, either or both could seek relief from the Department of Natural Resources, as the licensing authority, and from the Commission, on administrative review.

 

19. Since 1979, George Edwards has had no life estate and no freehold interest in riparian rights that would give him authority to pursue relief from the Commission.  He lacked the requisite legal interest to pursue relief when he filed correspondence with the Commission on September 24, 2010.  He lacked the requisite legal interest when the Motion to Dismiss was filed on May 25, 2011.  He lacked the requisite authority at all times between September 24, 2011 and May 25, 2011.