[CITE: Charles & Miller v. Dyer, 13 CADDNAR 246 (2014)]
[VOLUME 13, PAGE 246]
Cause #: 13-093W
Caption: Charles & Miller v. Dyer
Administrative Law Judge: Lucas
Attorneys: pro se (Charles, Miller); Kuchmay (Dyer); Wells (DNR)
Date: March 24, 2014
FINAL ORDER OF SUMMARY JUDGMENT IN FAVOR OF THE RESPONDENTS
(1) There is no genuine issue of material fact, and the Respondents are entitled to summary judgment in their favor and against the Claimants as follows:
(A) For the Sycamore Grove Addition to Big Long Lake, the riparian owners of the servient estate gave all owners of Lot 13 through Lot 19 the right to use the Private Accesses for the placement of temporary piers and similar structures. Based upon the Amended Restrictions to the Sycamore Grove Addition, the owners of Lot 13, Lot 14, Lot 15, and Lot 16 now have the dominant estate for the use of the West Private Access and for the placement of a pier or piers in the waters of Big Long Lake adjacent to the West Private Access. Based upon Amended Restrictions to the Sycamore Grove Addition, the owners of Lot 17, Lot 18, and Lot 19 now have the dominant estate for the use of the East Private Access and for the placement of a pier or piers in the waters of Big Long Lake adjacent to the East Private Access.
(B) Currently, the owners of Lot 13 through Lot 16 include Jeffrey Lee Dunne and Stephanie Lyn Dunne, as well as Douglas Lee Dyer and Teresa Ann Dyer. The owners of Lot 17 through Lot 19 include Thomas G. Cassady and Diane S. Cassady, as well as Joseph T. Dyer and Hope A. Dyer.
(C) Neither Kelly E. Charles nor Timothy Miller has a proprietary interest that qualifies for the use of the West Private Access or the East Private Access. Neither Charles nor Miller has a proprietary interest that qualifies for the placement of a pier in the waters of Big Long Lake adjacent to the West Private Access or adjacent to the East Private Access.
(2) As a matter of law based upon facts not in material dispute, the Respondents have not demonstrated entitlement to a prescriptive easement with respect to usage of the West Private Access or the East Private Access or with respect to the usage of the waters of Big Long Lake adjacent to the West Private Access or the East Private Access.
(3) This proceeding does not determine any of the following:
(A) The location of the West Private Access or the East Private Access.
(B) The location of riparian zones associated with the West Private Access or the East Private Access.
(C) The lawful location of particular piers or structures within Big Long Lake.
As to matters in this Part (3), material facts are in dispute. If a Party wishes to contest the subsequent placement of a particular pier or similar structure by another Party, the contest shall be considered first by the Department of Natural Resources as the trustee and licensing authority, under Ind. Code § 14-26-2, for the public waters of Big Long Lake. In addition, a Claimant or Respondent may seek administrative review, under 312 Ind. Admin. Code § 11-3-2, to resolve a contest. Determinations of proprietary interests and the use of riparian rights made in this Final Order govern any consideration by the Department of Natural Resources and any review.
Findings
A. Statement of the Proceeding and Jurisdiction
1. On May 24, 2013, Kelly E. Charles (“Charles”) filed correspondence with the Natural Resources Commission (the “Commission”) in which he asserted a grievance against Joseph E. Dyer, Hope Dyer, Douglas Dyer, and Theresa Dyer (the “Dyers”) with respect to their use of a private access or accesses for Sycamore Grove to Big Long Lake in LaGrange County, Indiana. The grievance averred the Dyers owned real estate not adjoining Big Long Lake and had “thus no deeded access to the private lake access for our addition which they have taken complete control over. They have attached piers, shorestations (3) pontoons (2) speedboats, fishing boats, canoe, Hobie Cat and waverunner to this property. They have only the right to go to and from the water but not attach their belongings to this access. The complaint is that they should remove their personal property from the gound and not attach anything to it, such as their pier.” The Commission identified the grievance as a riparian rights dispute and assigned Administrative Cause Number 13-093W.
2. Also on May 24, 2013, Timothy R. Miller (“Miller”) filed correspondence with the Commission in which he asserted the same grievances against the Dyers as were described by Charles in Finding 1. The Commission identified the Miller grievance as a riparian rights dispute and assigned Administrative Cause Number 13-094W.
3. Big Long Lake is a “public freshwater lake” as the phrase is defined at Ind. Code § 14-26-2-3 and 312 Ind. Admin. Code § 11-2-17. Lawson v. Halliwill, 13 Caddnar 146, 147 (2013) and Spaw v. Ashley, 12 Caddnar 233, 234 (2010).[1] See, also, “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 4.
4. An administrative law judge was appointed under IC § 14-10-2-2 to conduct Administrative Cause Number 13-193W and Administrative Cause Number 13-094W. On May 28, he sent a “Notice of Initial Prehearing Conference” to Charles, Miller, the Dyers, and other potentially interested persons to inform them prehearing conferences would be conducted simultaneously on July 5 in Administrative Cause Number 13-093W and Administrative Cause Number 13-094W.
5. On June 4, Andrew Wells and Eric Wyndham filed their joint appearances for the Department of Natural Resources (the “DNR”) in Administrative Cause Number 13-093W and Administrative Cause Number 13-094W. They also filed a “Petition to Intervene” in both proceedings which averred that DNR had jurisdiction over Big Long Lake under Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Commission at 312 Ind. Admin. Code § 11 to assist with implementation of the Lakes Preservation Act. The petition asserted the public has a vested right in the preservation, protection and enjoyment of all public freshwater lakes of Indiana in their present state and in the use of the public freshwater lakes for recreational purposes. Ind. Code § 14-26-2-5. The petition asserted the DNR “has jurisdiction over the placement and proper configuration of piers on Big Long Lake” and was “a necessary party” to the proceedings.
6. The Lakes Preservation Act places full power over public freshwater lakes in Indiana. The State holds public freshwater lakes in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes. The DNR is the agency responsible for administering the trust. Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001).
7. For Administrative Cause Number 13-093W and Administrative Cause Number 13-094W, the DNR’s “Petition to Intervene” was granted, and the DNR was designated the “Agency Respondent”.
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8. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act, including those derived from competing interests among persons claiming riparian rights or interests in riparian rights that may be sufficient for the placement of piers and similar structures in public freshwater lakes. Ind. Code § 14-10-2-4 and Ind. Code § 14-26-2-23. Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d 1068, 1075 (Ind. App. 2012) and Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).
9. The Lakes Preservation Act is derived from legislation originating in 1947. Statutory amendments made in 2000 included the addition of Ind. Code § 14-26-2-23. The amendments clarified the Commission is responsible for adopting rules to help implement a licensure program that includes temporary piers. The Commission is also charged with resolving disputes between “the interests of landowners having property rights abutting public freshwater lakes or rights of access to public freshwater lakes.” The Commission is to address “competing riparian interests”. Ind. Code § 14-26-2-23(e) and Ind. Code § 14-26-2-23(f).
10. The initial prehearing conference was conducted as scheduled in Columbia City on July 5. Charles, Miller, and the Dyers were present in person. The DNR was present through its attorney. Although the real estate ownership of Charles and Miller differ, their claims against the Dyers are the same. Charles, Miller, the Dyers, and the DNR were asked whether they objected to the consolidation of Administrative Cause Number 13-093W with Administrative Cause Number 13-094W. There was no objection to consolidation. The two proceedings were then ordered consolidated within Administrative Cause Number 13-093W.
11. Jeff L. Dunne (“Dunne”) was also present at the initial prehearing conference. He asserted interests that appeared similar to those of the Dyers. Without objection from the Claimants, the Dyers, Dunne, or the DNR, Dunne was added as a party.
12. Jason Kuchmay entered an appearance as attorney for the Dyers and Dunne on July 25. On August 21, he filed a “Motion for Leave to File Affirmative Defenses and Counterclaims”. The motion was granted. On August 29, he filed the “Respondents’ Second Motion for Leave to file Affirmative Defenses and Counterclaims”. This motion was also granted, and the Dyers and Dunne filed an “Amended Answer, Affirmative Defenses, and Counterclaim” effective on August 30.
13. During the initial prehearing held on July 5, those participating agreed all landowners in the Sycamore Grove Subdivision were persons needed for just adjudication. They also agreed an ownership interest was not yet included. The interest was later identified as being held by Thomas G. Cassady and Diane S. Cassady (the “Cassadys”). On August 27, an “Order for Joinder of Thomas G. Cassady and Diane S. Cassady as Respondents and Notice to the Cassadys to Appear and Participate” was entered. Service was made upon the Cassadys by First Class Mail and by Certified Mail with return receipt requested.
14. The third status conference was conducted as scheduled on October 18. Charles, Miller, the Dyers, Dunne, the Cassadys, and the DNR all participated in person or by an attorney. Charles and Miller are collectively the “Claimants”. The Dyers, Dunne, and the Cassadys are collectively the “Respondents”. The Claimants, the Respondents, and the DNR are collectively the “Parties”.
15. The Commission has jurisdiction over the subject matter and over the persons of the Parties.
B. Scheduling of Dyers and Dunne’s Summary Judgment Motion
16. On January 16, 2014, the “Respondents, Dyers and Dunne’s Motion for Summary Judgment Based on Admissions and Motions for a Unilateral Extension of the Discovery Deadlines” (sometimes referred to as the “MSJ”) and “Dyers and Dunne’s Memorandum in Support of Motion for Summary Judgment” were filed.
17. A “Schedule Regarding Respondents’ Motion for Summary Judgment and Notice of Cancellation of Telephone Status Conference” was entered on January 17. The entry provided a schedule for responding to the MSJ:
Part (1): The Claimants, the Cassadys, and the DNR had until February 17 to file and serve any response to the motion and memorandum, opposing affidavit, cross motion or counter motion for summary judgment.
Part (2): The Parties had until March 19 to file and serve any reply, response, or opposing affidavit to a filing under Part (1).
18. On February 3, the Cassadys filed correspondence in which they supported the MSJ provided “the decision is based on the access rights provided to the owners of lots thirteen (13), fourteen (14), fifteen (15), sixteen (16), seventeen (17), eighteen (18), and nineteen (19) in the restrictions, covenants, and associated documents related to the Sycamore Grove Subdivision.”
19. On February 11, the “Respondents, Dyers and Dunne’s Summary Judgment Reply Memorandum in Response to Cassady Filing” was filed. The Memorandum stated in part:
4. The Dyers and Dunne agree to the relief requested by the Cassadys and such relief is consistent with Count I of the Counterclaims, and is appropriate according to the Amended Restrictions. See Exhibit C to the Dyers and Dunne’s Memorandum in Support of MSJ.
5. The Amended Restrictions confirm that the west private access is for lots thirteen (13), fourteen (14), fifteen (15), and sixteen (16), which are the lots owned by Dunne and and Doug and Teresa Dyer.
6. The Amended Restrictions further confirm that the east private access is for lots seventeen (17), eighteen (18), and nineteen (19), which are the lots owned by Joseph and Hope Dyer, and the Cassadys.
7. Nothing in the MSJ seeks to detract from the rights that the Cassadys have pursuant to the Amended Restrictions, or otherwise.
20. Neither the Claimants nor the DNR responded to the MSJ.
21. The proceeding is ripe for a disposition of the MSJ.
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C. Summary Judgment under AOPA as applied through Trial Rule 56
22. Ind. Code § 4-21.5-3-23 governs summary judgment under AOPA:
(b) Except as otherwise provided in this section, an
administrative law judge shall consider a motion filed under subsection (a) as
would a court that is considering a motion for summary judgment filed under
Trial Rule 56 of the Indiana Rules of Trial Procedure.
(c) Service of the motion and any response to the
motion, including supporting affidavits, shall be performed as provided in this
article.
(d) [Ind. Code § 4-21.5-3-28 and Ind. Code §
4-21.5-3-29] apply to an order granting summary judgment that disposes of all
issues in a proceeding.
23. As applied under AOPA, Trial Rule 56 of the Indiana Rules of Trial Procedure provides:
(A) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty [20] days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
(B) For defending party--When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the [administrative law judge] may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.
(C) Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The [administrative law judge] may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the [administrative law judge] shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the [administrative law judge] all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the [administrative law judge] each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the [administrative law judge] in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The [administrative law judge] shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.
(D) Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(E) Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The [administrative law judge] may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.
(F) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(G) Affidavits made in bad faith. Should it appear to the satisfaction of the [administrative law judge] at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the [administrative law judge] shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees….
(H) Appeal-Reversal. No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the [administrative law judge].
(I) Alteration of Time. For cause found, the [administrative law judge] may alter any time limit set forth in this rule upon motion made within the applicable time limit.
24. Summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact, and 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). In determining if a genuine issue of material fact exists to preclude summary judgment, all doubts must be resolved against the nonmoving party. Facts set forth by a party opposing the motion must be taken as true. Terry v. Indiana State University, 666 N.E.2d 87 (Ind. App. 1996).
25. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.” Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993). “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).
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26. Supporting and opposing summary judgment affidavits must present admissible evidence that follows substantially the same form as though the affiant were giving testimony in court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193 (Ind. App. 2010). “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).
27. A party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing. Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001). See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994). Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue. Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).
C. Facts Not in Material Dispute
28. On October 25, 2013, the Dyers and Dunne served Requests for Admission under Trial Rule 36 upon Charles and Miller. “Affidavit of Sharon L. Axon” dated January 16, 2014. Responses were due by November 27, 2013. Responses were not served timely by either Charles or Miller. As of January 16, responses still had not been served. “Affidavit of Jason M. Kuchmay” dated January 16, 2014. Any matter admitted under Trial Rule 36 is conclusively established unless an administrative law judge on motion permits withdrawal or amendment of the admission. Trial Rule 36(B). The scope of a request for admission can address “any matter”, as opposed to “any fact”, so requests can involve opinions, contentions, or legal conclusions. Larson v. Karagan, 979 N.E.2d 655 (Ind. App. 2012). No request for withdrawal or amendment was made by either of the Claimants, and no request was granted.[2] The admissions by Charles and Miller are admitted as a matter of law.[3]
29. Joseph T. Dyer and Hope A. Dyer own Lots 18 and 19 in the Sycamore Grove Addition to Big Long Lake. Admitted Request No. 1.[4]
30. Douglas Lee Dyer and Teresa Ann Dyer own Lot 16 in the Sycamore Gove Addition to Big Long Lake. Admitted Request No. 2.
31. Jeffrey Lee Dunne and Stephanie Lynn Dunne own Lot 13 in the Sycamore Grove Addition to Big Long Lake. Admitted Request No. 3. The Parties do not dispute that Dunne is also the owner of Lot 14. “Report of Initial Prehearing Conference and Notice of Second Prehearing Conference”.
32. Thomas Cassady and Diane Cassady own Lot 17 in the Sycamore Grove Addition to Big Long Lake. Illustrative are the “Report of Second Prehearing Conference and Notice of Third Prehearing Conference”, the “Report of Third Status Conference and Notice of Fourth Status Conference”, and the “Respondents, Dyers and Dunne’s Summary Judgment Reply Memorandum in Response to Cassady Filing”.
33. On September 19, 1979, Scott L. Hunter and K. J. Summers executed a document that was recorded by the LaGrange County Recorder in 1979 and that provided with respect to the Sycamore Grove Addition to Big Long Lake:
WHEREAS, the undersigned, Scott L. HUNTER and K. J. SUMMERS, are the owners of the following described real estate located in the County of LaGrange, State of Indiana, to-wit:
The East half of the Southwest Quarter of Section 26, Township 36 North, Range 11 East, excepting therefrom the Plat of Sycamore Grove, as recorded in Plat Book 5, Page 113 in the Recorder’s Office of LaGrange County, Indiana,
and
WHEREAS, the undersigned duly on the 20th day of February, 1978, dedicate the Plat of Sycamore Grove, which Plat has been duly approved by the Board of Commissioners in LaGrange County, Indiana, on the 15th day of August, 1977; and
WHEREAS, said Plat contained two private accesses which were reserved by the undersigned for the use of the above described real estate; and
WHEREAS, the undersigned now wish to restrict the use of said private access to owners of the above described real estate by amending the use thereof to the owners of lots in said Addition, and the owners of tracts of land in the above described real estate which tracts of land are equal to or in excess of three (3) acres in area.
NOW THEREFORE, the undersigned, being the owners of the following described real estate in the County of LaGrange, State of Indiana, to wit:
The East half of the Southwest Quarter of Section 26, Township 36 North, Range 11 East, excepting the Plat of Sycamore Grove.
Now restrict the use by owners of said real estate to such private accesses to those owners of tracts of real estate that have an area of or in excess of three (3) acres.
Exhibit “A” attached to the Requests for Admission. This document is referenced here as the “Sycamore Grove Private Access”.
34. The Sycamore Grove Private Access was not intended to grant access rights to lots that are adjacent to the water’s edge of Big Long Lake. Admitted Request No. 6.
35. Restrictions recorded with the Recorder of LaGrange County apply to lots in Sycamore Grove Addition. The restrictions can be amended through a written document signed by at least 75% of the lot owners in the Sycamore Grove Addition. Admitted Request No. 20, Admitted Request No. 21 and Exhibit “B” attached to the Requests for Admission.
36. The Restrictions referenced in Finding 35 were amended by a written document signed by at least 75% of the lot owners in the Sycamore Grove Addition. The written document provided “lots (13) thirteen[,] (14) fourteen[,] (15) fifteen[, and] (16) sixteen to be used as the [W]est [P]rivate [A]ccess of the addition for a pier or piers as well as lots (17) seventeen[,] (18) eighteen[, and] (19) nineteen as the [E]ast [P]rivate [A]ccess for a pier or piers for these said lots.” The written document was recorded with the Recorder of LaGrange County on July 10, 2012. Admitted Request No. 22 and Exhibit “C” attached to the Requests for Admission. This written document is referenced here as the “Amended Restrictions”.
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37. The West Private Access referenced in Finding 36 is illustrated as follows:
38. The East Private Access referenced in Finding 36 is illustrated as follows:
39. “Private Access” means either the West Private Access illustrated in Finding 37 or the East Private Access illustrated in Finding 38.
40. The Amended Restrictions confirm that the West Private Access can be used in connection with a pier for Lot 13 through Lot 16 in the Sycamore Grove Addition. Admitted Request No. 23.
41. The Amended Restrictions confirm that the East Private Access can be used in connection with a pier for Lot 17 through Lot 19 in the Sycamore Grove Addition. Admitted Request No. 24.
42. Joseph Dyer maintained a pier extending from a Private Access every year since he owned Lot 18 and Lot 19 from 1987 to the present. Admitted Request No. 13.
43. Until the Claimants initiated this proceeding, they never objected to the maintenance of a pier by Joseph Dyer from a Private Access. Admitted Request No. 14.
44. Douglas Dyer maintained a pier extending from a Private Access every year since he owned Lot 16 from 1989 to the present. Admitted Request No. 15.
45. Until the Claimants initiated this proceeding, they never objected to the maintenance of a pier by Douglas Dyer extending from a Private Access. Admitted Request No. 16.
46. Dunne maintained a pier extending from a Private Access every year since he owned Lot 13 from 1900 to the present. Admitted Request No. 17.
47. Until the Claimants initiated this proceeding, they never objected to the maintenance of a pier by Dunne extending from a Private Access. Admitted Request No. 18.
D. Riparian Usage
48. 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.” 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 the Klotz court at 1097.
49. The intentions of the riparian owner who granted 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.
50. Related documents are construed in pari materia. The riparian owners created Private Accesses for the benefit of lot owners in the Sycamore Grove Addition to Big Long Lake. Restrictions recorded with the Recorder of LaGrange County for the Sycamore Grove Addition authorized amendments if made through a written document signed by at least 75% of the lot owners. Applying these restrictions, the lot owners approved Amended Restrictions to distinguish the Private Accesses as the West Private Access and the East Private Access. The Amended Restrictions provided that the owners of Lot 13, Lot 14, Lot 15, and Lot 16 may use the West Private Access for the placement of a pier or piers. The Amended Restrictions provided that the owners of Lot 17, Lot 18, and Lot 19 may use the East Private Access for the placement of a pier or piers.
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51. The clear and unambiguous language controls. The owners of Lot 13 through Lot 19 have the dominant estate and may use the riparian rights of the servient tenant to access to Big Long Lake and to place piers adjacent to the Private Accesses. This entitlement does not extend to the Claimants.
52. Even if the language were ambiguous, however, the owners of Lots 13 through Lot 19 would be entitled to use the riparian rights of the servient tenant. “[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.” Klotz citing Badger v. Hill, 404 A.2d 222, 226, (Me. 1979). In Klotz, the Indiana Supreme Court determined the phrase “access to Eagle Lake” for a six-foot wide easement was ambiguous and properly required the consideration of “extrinsic or parol evidence to ascertain the intent of the parties who created the instrument.” A factor determined appropriate to identifying intent was whether, in the absence of a pier, shoreline conditions would make difficult the dominant estate’s access to and enjoyment of the lake.
53. The extrinsic evidence is not in material dispute. Joseph Dyer maintained a pier extending from a Private Access every year since he owned Lot 18 and Lot 19 from 1987 to the present. Until the Claimants initiated this proceeding, they never objected to the maintenance of a pier by Joseph Dyer from a Private Access. Douglas Dyer maintained a pier extending from a Private Access every year since he owned Lot 16 from 1989 to the present. Until the Claimants initiated this proceeding, they never objected to the maintenance of a pier by Douglas Dyer extending from a Private Access. Dunne maintained a pier extending from a Private Access every year since he owned Lot 13 from 1900 to the present. Until the Claimants initiated this proceeding, they never objected to the maintenance of a pier by Dunne extending from a Private Access. Finding 42 through Finding 47.
54. Even if the language of the controlling documents were ambiguous, extrinsic evidence not in material dispute supports the conclusion that the riparian owner of the servient estate gave all owners of Lot 13 through Lot 19 the right to use the Private Accesses for the placement of temporary piers and similar structures. The Amended Restrictions provided that the owners of Lot 13, Lot 14, Lot 15, and Lot 16 were authorized to use the West Private Access for the placement of a pier or piers. The Amended Restrictions provided that the owners of Lot 17, Lot 18, and Lot 19 were to authorized to use the East Private Access for the placement of a pier or piers. The owners of Lot 13, Lot 14, Lot 15, and Lot 16 now have the dominant estate for the use of the West Private Access and the placement of piers in the adjacent waters of Big Long Lake. The owners of Lot 17, Lot 18, and Lot 19 now have the dominant estate for the use of the East Private Access and the placement of piers in the adjacent waters of Big Long Lake.
E. Prescriptive Easement
55. “Prescriptive easements are not favored by the law.” 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 to demonstrate an intent that is adverse. Carnahan v. Moriah Property Owners Ass’n, 716 N.E.2d 487 (Ind. 1999).
56. The Indiana Supreme Court set today’s standards for establishing a prescriptive easement, comparable to standards for establishing adverse possession, in Wilfong v. Cessna Corp., 838 N.E.2d 403, 406 (Ind. 2005):
FN5. These four elements are established by clear and convincing proof of the following:
(1) Control-The claimant 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 “exclusive,” possession);
(2) Intent-The claimant 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 claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former “visible,” “open,” “notorious”, and in some ways the “hostile” elements); and
(4) Duration-the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).
57. In order to establish a prescriptive easement to expand the easements provided by the West Private Access and the East Private Access, the Respondents would be required to show by clear and convincing evidence they had established each of the four elements described in Finding 56.
58. As referenced in Finding 51, and alternatively in Finding 54, the Respondents have permissive uses from the servient estate of the West Private Access and the East Private Access.
59. If an easement is used for the intended purpose to access a lake, parties seeking to establish a prescriptive easement cannot demonstrate their use satisfies the second proof requirement (“intent”). The use is not at the same time under a claim of right, and also exclusive, hostile, or adverse. Bass v. Salyer, 923 N.E.2d 961 (Ind. App. 2010). Because the Claimants have not shown adverse use, for lands outside Big Long Lake they cannot show the “intent” to use the West Private Access and the East Private Access in a manner superior to the rights of all others.
60. The burden of proof described in Finding 56 must also be viewed within Big Long Lake as public trust waters with a recreational purpose governed by Ind. Code § 14-26-2-5. The admissions of the Claimants are insufficient to establish a prescriptive easement against the rights of all others, including the rights of the public to enjoy the trust established by the Lakes Preservation Act.
61. As a matter of law, the Respondents are not entitled to a prescriptive easement either within the lands of the West Private Access and the East Private Access or within the adjacent waters of Big Long Lake.
[VOLUME 13, PAGE 252]
F. Placements of Piers and Other Structures
62. The DNR and the Commission are responsible for implementing the statutory process of issuing licenses for piers on public freshwater lakes. In adopting rules and issuing licenses, the DNR is charged with considering a variety of factors, including the public rights listed in Ind. Code § 14-26-2-5 “and the interests of landowners who own property abutting” a public freshwater lake. Ind. Code § 14-26-2-23(c) and Ind. Code § 14-26-2-23(e). Jurisdiction to determine the interests of landowners who own abutting property is not exclusive to the courts or to the Commission, but a disposition by either is dispositive. Kranz v. Meyers Subdivision at 1078.
63. In this proceeding, dispositions are made concerning the proprietary interests of the Claimants and the Respondents as they bear upon usage of the public waters of Big Long Lake. These dispositions apply whether authority for placement of a pier is sought as a general license or as an individual license. See, generally, 312 Ind. Admin. Code § 11-3-1 which identifies the conditions to qualify for a general license.
64. The record in this proceeding identifies the property interests of the Claimants and the Respondents pertaining to the placement of piers adjacent to the West Private Access and the East Private Access. The owners of Lot 13 through Lot 16 have the dominant estates and the proprietary authority to use the riparian rights of the servient estate adjacent to the West Private Access.[5] These owners include Jeffrey Lee Dunne and Stephanie Lyn Dunne, as well as Douglas Lee Dyer and Teresa Ann Dyer. The owners of Lot 17 through Lot 19 have the dominant estates and the proprietary authority to use the riparian rights of the servient estate adjacent to the East Private Access. These owners include Thomas G. Cassady and Diane S. Cassady, as well as Joseph T. Dyer and Hope A. Dyer. Neither Kelly E. Charles nor Timothy Miller has a proprietary interest that qualifies for the use of the West Private Access or the East Private Access. Neither Charles nor Miller has a proprietary interest that qualifies for the placement of a pier in the waters of Big Long Lake adjacent to the West Private Access or the East Private Access.
65. This proceeding is dispositive of property interests required to qualify for a general license or as an individual license to place a pier adjacent to the West Private Access or the East Private Access.
66. This proceeding does not establish the boundaries of the West Private Access or the East Private Access, and this proceeding does not delineate the boundaries of riparian zones associated with the West Private Access or the East Private Access.
67. Attached as Exhibit “D” to the “Respondents, Dyers and Dunne’s Motion for Summary Judgment Based on Admissions and Motion for a Unilateral Extension of the Discovery Deadline” is an aerial photograph that includes the East Private Access. Exhibit “D” has notations that appear to support the proposition the Timothy Miller Pier originates from the East Private Access and extends into the riparian waters adjacent to the East Private Access. As indicated in Finding 64, Miller does not have a proprietary interest in the East Private Access and does not have authority to place a pier in the riparian zone associated with the East Private Access. But an aerial photograph with notations is not a material fact and does not qualify for a disposition of summary judgment.
68. The evidence is insufficient to approve the location of particular piers or similar structures by either the Claimants or the Respondents. Said another way, genuine issues of fact remain as to the specifics of pier placement. A resolution of those facts in this proceeding would be premature and would not likely serve administrative efficiency.
69. In the absence of an agreement among the Claimants and the Respondents, a professional land surveyor may need to establish the boundaries of the West Private Access and the East Private Access, as well as delineate the boundaries of riparian zones associated with the West Private Access or the East Private Access. If a dispute were to arise prospectively concerning placement of a particular pier, the opportunity for administrative review in 312 Ind. Admin. Code § 11-3-2 would apply. The dispositions of proprietary rights for riparian usage made in this Final Order would then govern the review.