CADDNAR

[CITE: Larsh v. Howard &DNR, 14 CADDNAR 20 (2015)]

 

[VOLUME 14, PAGE 20]

 

 

Cause #: 13-100W

Caption: Larsh v. Howard & DNR

Administrative Law Judge: Jensen

Attorneys: Snyder (Larsh); Eherenman (Howard); Grow (DNR)

Date: July 9, 2015

 

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

 

FINAL ORDER

 

59. The permit, CTS-3553, issued by the Department to the Howards is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Historical Background and Procedural History:

 

1.     The instant proceeding is the product of significant history before the Natural Resources Commission (“Commission”) dating back to 2010 when the Department of Natural Resources (“Department”) denied a permit application submitted by Larry J. Howard and Bernadean M. Howard, (collectively referred to as “the Howards”) who are Respondents here.  See Howard v. DNR and Smith, 13 CADDNAR 36 (2012).  That proceeding concluded with a Commission Final Order remanding the Howards’ permit application to the Department for further review as follows:

 

(1) Summary judgment is granted upon the following matters pertaining to the DNR’s assertion that the Howards application for the subject permit should be denied.

(A) The Howards failed to notify at least one of the owners of each parcel of real property reasonably known to be adjacent to the affected real property as required by IC § 14-11-4-5.  With respect to this assertion, any failure to provide notification was cured by notification performed in this proceeding.  Similarly, the [Department’s] assertion of the Howards’ failure to notify other lot owners in Valentine’s Subdivision, that might have shared access rights with the Howards, was also cured.

(B)  The Howards failed to prove access to the easement on Outlot 4 in the First Addition to Valentines Subdivision on Yellow Creek Lake, and within Yellow Creek Lake in Kosciusko County, Indiana, was exclusive and not shared with other persons.  With respect to this assertion, there is no material issue of fact in dispute as to proprietary interests.  The Howards enjoy “the dominant” estate in Outlot 4.  Among other benefits, the dominant estate authorizes the placement of a pier to accommodate a boat landing. 

(2) Summary judgment is not granted as to the performance by the [Department] of its permitting functions under the Lakes Preservation Act and 312 IAC § 11.  The Howards’ notice to potentially affected persons was deficient until cured by this proceeding.  Until the entry of this Order, the [Department] had not determined and could not reasonably have determined the interests of persons claiming riparian ownership or an easement based on the riparian ownership of another person.  As a result, the [Department] could not have investigated and evaluated fully the application for the subject permit to assure compliance with the Lakes Preservation Act and 312 IAC § 11.  The proceeding is remanded to the [Department] with instructions to complete an investigation and evaluation, and to issue a determination, with respect to the Howards’ application for the subject permit, that is consistent with the terms of this Order.  The [Department] shall provide notice of its determination to the Howards and the Respondent Intervenors’ or to their respective attorneys.

Howard at pg. 36.

 

2.     The Department’s investigation and evaluation on remand from Howard resulted in the Department issuing a permit identified as CTS-3553 – PL-21572 (“CTS-3553”) to the Howards on May 16, 2013.  CTS-3553 authorized the Howards to extend a pier from Outlot 4 in the First Addition to Valentines Subdivision on Yellow Creek Lake (“the Valentine Subdivision”) in Kosciusko County.  Respondents’ Exhibit 1.

 

3.     On May 29, 2013, the Claimants, Chad D. Larsh, Michelle M. Larsh and Marvin D. Larsh (collectively referred to as “the Larshes”), who, as relevant to this proceeding are the owners of Lot 16 and Outlot 4 in the Valentine Subdivision, timely sought administrative review of CTS-3553.  On May 31, 2013, an “Amended Petition for Administrative Review” was filed to include Lee E. Gross, Trustee of the Lee E. Gross Revocable Trust, which owned Lots 17 and 18 in the Valentine Subdivision, as a Claimant.

 

4.     Procedurally, Ind. Code §§ 4-21.5-3 et seq. (commonly referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and procedural rules adopted at 312 IAC 3-1 et seq. control.  Substantively this proceeding is governed by Ind. Code §§ 14-26-2 (commonly referred to as the “Lakes Preservation Act”) and associated administrative rules adopted at 312 IAC 11 et seq.  

 

5.     The Commission is the ultimate authority with respect to the Department’s review and approval of CTS-3553.  Indiana Code § 4-21.5-3-15 and 312 IAC 3-1-2.

 

6.     At a prehearing conference conducted on July 8, 2013 the parties agreed to a schedule for filing and serving motions for summary judgment.  Following full briefing by the parties, a “Notice of Nonfinal Order of Partial Summary Judgment on Remand” was issued by Chief Administrative Law Judge Lucas[1] on June 10, 2014.  Judge Lucas determined there to be “no just cause for delay” and designated the partial summary judgment order “ripe for filing of objections and review upon oral argument by the AOPA Committee[2].”  See “Notice of Nonfinal Order of Partial Summary Judgment on Remand”.

 

7.     The Howards filed “Respondents’ Objection to Nonfinal Order of Partial Summary Judgment on Remand” on June 27, 2014.  The Claimants filed their “Response to Respondents’ Objection to Nonfinal Order” on August 18, 2015.

 

8.     The AOPA Committee of the Commission considered oral argument on the Howards’ objections on August 28, 2014 and affirmed Judge Lucas’ nonfinal order granting partial summary judgment.  “AOPA Committee of the Natural Resources Commission, August 28, 2014 Meeting Minutes, pgs. 1-6. The Commission issued its “Final Order of Partial Summary Judgment on Remand” on August 29, 2014 that is indexed in accordance with Indiana Code § 4-21.5-3-32.  Gross v. IDNR and Howard, 13 CADDNAR 283 (2014).

 

9.     No party sought judicial review of the Commission’s Final Order of Partial Summary Judgment as entered in Gross.

 

10.  After repeated unsuccessful attempts to complete depositions, the Howards, on January 23, 2015, filed their motion to dismiss the claims of Lee E. Gross, Trustee of the Lee E. Gross Revocable Trust.  Also on January 23, 2015, Stephen L. Snyder, counsel for the Lee E. Gross Revocable Trust, expressed by email communication that the Trust had no objection to being dismissed as a party to the instant proceeding.  A “Final Order of Dismissal as to Claimant, Lee E. Gross Revocable Trust” was issued on January 26, 2015.

 

11.  The Howards and the Larshes filed prehearing briefs on January 26, 2015 and January 27, 2015, respectively.

 

[VOLUME 14, PAGE 21]

 

12.  On January 29, 2015, the Howards filed a motion to strike certain portions of the Larshes’ prehearing brief along with a motion to exclude the presentation of evidence contemporaneous to those matters at the administrative hearing.  Particularly, the Howards objected to the Larshes’ presentation of evidence indicative of the following:

 

1.     The placement of the Howard pier interferes with Larsh’s use of the riparian area of Lot 16, to the extent that Larsh was required to relocate his pier and the swimming area within the riparian area of Lot 16 has now become hazardous by virtue of the Howard boat traffic.

2.     The installation of the Howard pier precludes Larsh’s exercise of riparian rights adjacent to Lot 4 by preventing his installation of a pier or mooring of a boat within the riparian area of Outlot 4.

3.     The installation of the Howard pier interferes with navigation to such an extent that Larsh was required to relocate his pier in the riparian area of Lot 16.

4.     …

5.     The use of the Howard pier, of necessity, destroys emergent vegetation within the riparian area of Outlot 4, being the riparian are of Larsh.

“Claimant Chad D. Larsh, Michelle M. Larsh and Marvin D. Larsh’s Pre-Hearing Brief, filed January 27, 2015.

 

13.  The Howards’ motion to strike and motion to exclude evidence was addressed in an “Order Granting, in Part, and Denying, in Part, the Respondents’ Motion to Strike Portions of Petitioners’ Pre-Hearing Brief and Motion to Exclude Evidence,” issued on February 2, 2015.  For ease of reading, pertinent parts of the order are set forth herein as follows:

 

Review of Howard v. DNR and [the Final Order on Partial Summary Judgment] dictates that the Respondents’ motions be granted in part and denied in part as follows:

 

It has been previously determined that “the Howards enjoy the dominant estate in Outlot 4.  The riparian rights of the owners of Outlot 4 are subject to the vested and dominant riparian rights of the Howards as the owners of Lot 21.”  In reaching this final determination, the Commission concluded that in conveying Lot 21 in 1960, the Valentine’s reserved only a personal license during their lifetimes.

 

The Valentines did not retain any assignable riparian rights for themselves or their ‘heirs and assigns’, but rather conveyed ‘the dominant’ riparian rights to only the owners of Lot 21 and ‘their heirs and assigns’.  With respect to Outlot 4, Nellie B. Valentine had no interest to convey in the 1972 Warranty Deed.   Any riparian rights associated with Outlot 4 are subject to ‘the dominant’ rights conveyed by the 1960 Warranty Deed now enjoyed by the Howards.

Howard v. DNR at 41. 

 

For this reason, it is concluded that matters associated with the Larsh’s ability to extend a pier lakeward from Outlot 4 was previously determined and is not subject to reconsideration through this proceeding.

 

[Final Order on Partial Summary Judgment], at Findings 19 and 20 are likewise dispositive of the issues relating to the destruction of emergent vegetation within the riparian area of Outlot 4.  [The Final Order on Partial Summary Judgment] determined as follows:

 

19. The ultimate facts are that Nathan Thomas, a biologist qualified to assess the damage, made a site view and determined granting a permit would not cause significant environmental harm if conditioned to minimize impacts to emergent vegetation within the project site.  The Claimants have presented no facts that are in material dispute.

20. The other parties are entitled to summary judgment in their favor and against the Claimants with respect to the second item asserted by the Claimants [Claims that the Department failed to properly consider the actual extent or emergent vegetation/wetlands adjacent to the riparian area of the Howards.]  See [Final Order on Partial Summary Judgment], Finding 11.

 

A review of previous determinations reveals that Respondents’ motion to strike portions of the Larsh’s Pre-Hearing Brief and motion to exclude evidence associated with navigational issues related to the Howard’s pier must, however, be denied.  The Respondents allege that they “moved for summary judgment on their pier permit asserting that the DNR conducted an appropriate review in issuing Howards the permit” and that “Larsh did not designate any factual issues related to ‘navigation’, did not challenge the DNR’s findings or investigation regarding safety and navigation, and did not submit any evidence whatsoever regarding navigation during the summary judgment proceedings.” 

 

Each of these contentions may be accurate and if, indeed, they are Larsh took a chance by failing to raise the issues at that time.  However, [Final Order on Partial Summary Judgment] states that “disposition is made on summary judgment with respect to all matters in this proceeding as set forth in this Order”.  Navigation and safety issues are not addressed within [the Final Order on Partial Summary Judgment].  [The Final Order on Summary Judgment] further states that “a hearing of the facts is required to determine the correlative proprietary rights of the Claimants and the Howards.”  It is believed that navigation and safety issues associated with the Howards’ pier may be construed to impact the proprietary rights of the parties and for this reason, with respect to this issue, the Respondents’ motion is denied.

 

For the foregoing reasons, those portions of the Larsh’s Pre-Hearing Brief relating to claims that “the installation of the Howard pier precludes Larsh’s exercise of riparian rights adjacent to Lot 4 by preventing his installation of a pier or mooring of a boat within the riparian area of Outlot 4” and claims that “the use of the Howard pier, of necessity, destroys emergent vegetation within the riparian area of Outlot 4, being the riparian area of Larsh” are hereby stricken. 

 

14.  The administrative hearing was conducted, as scheduled, on February 3, 2015.[3]  The parties stipulated to the admission of Respondents’ Exhibits 1 – 16 and Claimants’ Exhibits 17 – 20.  Testimony was received from three witnesses, Chad D. Larsh, Larry J. Howard and James J. Hebenstreit.

 

15.  The parties sought an opportunity to submit post hearing briefs not later than March 2, 2015.  The Howards and the Respondents availed themselves of this opportunity.  The Department did not file a post hearing brief.

 

[VOLUME 14, PAGE 22]

 

16.  The Larshes’ claims in opposition to the Department’s approval of CTS-3553 initially related almost exclusively to (1) the Howards use of the land portion of Outlot 4, (2) damage to local emergent vegetation, and (3) the need for the Larshes to move their existing pier to create space between it and the Howards’ permitted pier.  Respondents’ Exhibit 13 and Respondents’ Exhibit 14 (Interrogatories 2a, 5a and 16a).  However, at the administrative hearing the Larshes also raised issues relating to navigation and safety as well as the Larshes’ exercise of riparian rights associated with Outlot 4.

 

17.  In Gross it was concluded that “a hearing of the facts is required to determine the correlative proprietary rights of the [Larshes] and the Howards.” Id at 290.

 

18.  Because the Larshes’ claims have transformed somewhat throughout the pendency of this proceeding and because those claims seemingly vary from the recitation of the remaining issue identified in Gross, the issues remaining for determination in this proceeding are identified as follows:

 

a.      Whether the Department’s evaluation of the Howards’ permit application on remand considered the potential for the pier authorized by CTS-3553 (“the Howard Pier”) to interfere with navigation;

b.     Whether the Department’s evaluation of the Howards’ permit application considered the corollary rights of the Larshes as the owners of Lot 16 and the servient estate of Outlot 4; and,

c.      Whether the Department’s evaluation of the Howards’ permit application considered proper standards for the configuration of piers, including the potential need to order common usage. 

 

 

Findings of Fact:

 

19.  The Howards own Lot 21 in the Valentine Subdivision, which does not abut the Yellow Creek Lake, and also “enjoy the dominant estate on Outlot 4 for the placement of a pier and use of a landing.”  Respondents’ Exhibit 4; Howard v. DNR, at pg. 40.

 

20.  As relevant to this proceeding, the Larshes are the owners of Lot 16 and Outlot 4 in the Valentine Subdivision.  Respondents’ Exhibit 11; Howard at pg. 40.  

 

21.  Outlot 4 is a 15 foot wide strip of land situated between Lot 16 and Lot 17 in the Valentine Subdivision that fronts on the shore of Yellow Creek Lake.  Respondents’ Exhibit 3; Howard at pg. 39.  Lot 16 enjoys 45 feet of shoreline on Yellow Creek Lake.  Testimony of Chad Larsh.

 

22.  James J. Hebenstreit (Hebenstreit), Assistant Director for the Department’s Division of Water, oversees the permit administration section and serves as the Department director’s delegate with respect to permit decisions.  The role of the permit administration section is to review permit applications to ascertain conformance with applicable statutes and administrative rules in approving or denying the project sought to be completed by the applicant.  Hebenstreit has been employed by the Department’s Division of Water for 41 years.  Testimony of Hebenstreit.

 

23.  The Howard Pier, as authorized by CTS-3553, is three feet wide and extends from the midpoint of the shoreline of Outlot 4 for a distance of 38 feet into Yellow Creek Lake.  The final 16 feet of the pier is “set at a lower elevation than the remainder of the pier to allow for the docking of an 8’ wide pontoon boat, which will straddle the lower pier section.”  Respondents’ Exhibit 2.

 

24.  The Howards’ application for CTS-3553 was reviewed with respect to safety and navigation issues by the Department’s Division of Law Enforcement.  The officers within the Law Enforcement Division maintain a local presence and are considered by the Division of Water as the experts with respect to boating law and operation.  Testimony of Hebenstreit.  The Department of Law Enforcement endorsed the issuance of CTS-3553.  Id.

 

25.  Hebenstreit observed that the extension of piers from properties with limited shoreline is always a challenge and recognized that the Howards’ offer “to position the pier in the center to straddle the pier with their boat made it the best situation possible …”  Id.

 

26.  In issuing CTS-3553 the Department considered the potential for the authorized pier to interfere with adjacent riparian owners as is evidenced by the inclusion of special conditions prohibiting the Howards from extending pier segments perpendicular to the pier or attaching platforms to the side of the pier.  Similarly, CTS-3553 was issued with the further special condition that no portion of the pier or a boat moored to the pier may “extend beyond the riparian zone of Outlot 4.”  Testimony of Hebenstreit & Respondents’ Exhibit 2, pg. 3.

 

27.  The Howard Pier was installed in 2013 and the pier as well as the moored boat are completely within the riparian zone associated with Outlot 4. Testimony of Chad Larsh.

 

28.  The Larshes moved their existing pier, which had historically extended from the shoreline on the south portion of Lot 16 near the boundary with Outlot 4, to the north portion of Lot 16 following the construction of the Howard Pier.  This was done to create space between the two piers.  Movement of the Larsh pier to the north placed the pier in the area historically used by the Larshes as a swim area, which required the swim area to be relocated to the south side of the Larsh Pier, between the Larsh and the Howard Piers.  Id.

 

29.  Moving the Larsh Pier to the north did not have a negative impact upon the lot owner to the north of Lot 16.  Testimony of Chad Larsh.

 

30.  After the Larshes moved their pier to the north, the distance between the Howard Pier and the Larsh Pier is 37 feet 7 inches.  Testimony of Larry Howard.

 

31.  Hebenstreit offered the opinion that 37 feet 7 inches is sufficient space between piers to avoid hazards and unsafe conditions. 

 

32.  Chad Larsh testified during a deposition on January 20, 2015 that “safe and adequate clearance” exists between the Larsh and the Howard Piers. Respondents’ Exhibit 16.  On numerous occasions in affidavits, responses to interrogatories and responses to questions posed during depositions, the Larshes failed to raise any issues associated with navigation and safety.  Testimony of Chad Larsh, Respondents’ Exhibits 13, 14 & 16. However, the Larshes did raise concern that the installation of the Howard Pier would interfere with the historic placement of the Larsh Pier on the south portion of Lot 16 and the Larshes’ continued ability to navigate boats to and from the south side of their pier as it existed in its historic location.  Testimony of Chad Larsh.

 

33.  Chad Larsh noted that in an attempt to avoid local emergent vegetation the Howards have navigated their boat within the area lakeward of Lot 16 now used by the Larshes as swim area as they approach the Howard Pier.  Id.  For this reason the Larshes believe the Howard Pier creates a navigation and safety concern.  Id.

 

34.  No accidents or collisions have occurred since the Howard Pier was installed and further there have also been no “near misses” or “close calls” with respect to incidents between boats and swimmers.  Testimony of Larry Howard.

 

35.  Chad Larsh expressed concern in an Affidavit that the Howards use of their riparian rights associated with Outlot 4 would, “if not properly restricted” interfere with the Larshes’ use of the landward portion of Outlot 4, as lawn.  Respondents’ Exhibit 13.  The Howards traverse the land of Outlot 4, sometimes carrying items in a wheelbarrow, to access their pontoon boat moored at the Howard Pier.  Testimony of Chad Larsh and Larry Howard.  No item of the Howards’ personal property has ever been left on Outlot 4.  Personal items such as the wheelbarrow that are not loaded onto the Howards’ boat are stored on the Howard Pier out of the way of the Larshes.  Testimony of Larry Howard, Testimony of Chad Larsh.  Despite his earlier stated concern, Chad Larsh acknowledged in his testimony that the Howards use of the land area of Outlot 4 has not actually resulted in any interference with the Larshes use of the land area.

 

36.  The Larshes are able to access the water to maintain, and if necessary replace, the seawall existing on Outlot 4.  Efforts to effect repairs or the replacement of the seawall would be made easier if the Howard Pier was not present.  Testimony of Chad Larsh.

 

[VOLUME 14, PAGE 23]

 

37.  The existence of the Howard Pier “interferes with” the Larshes’ ability to fish from the shoreline of Outlot 4 in the same way as they were able to in the past.  Id.  Fishing is possible but has to occur around the Howard Pier and boat.  Id., and testimony of Larry Howard.

 

38.  Calculation associated with the Howard Pier design indicates that the Howard Pier utilizes approximately a three foot span of the 15 foot shoreline associated with Outlot 4 and consumes only a three foot width of the Outlot 4 riparian zone to a distance of approximately 22 feet lakeward of the shoreline, where the lower portion of the pier that is straddled by the Howards’ pontoon boat begins.  At approximately 22 feet lakeward the Howards’ pontoon boat moored to the pier causes the consumption of approximately a nine foot width of the riparian zone.  From these facts it is reasonable to conclude that the Larshes can use approximately 12 feet of the 15 foot shoreline associated with Outlot 4 for purposes of accessing the waters of Yellow Creek Lake for fishing or other similar activities to an approximate distance of 22 feet lakeward of the shoreline.

 

39.  The design of the Howard Pier requires the Howards to approach their pier from beyond 38 feet from the shoreline of Outlot 4 in order to effectively “straddle” the lower elevation pier section that extends from 16 feet lakeward of the shoreline to 38 feet lakeward of the shoreline.  Therefore, it is reasonable to conclude that any boat traffic navigating within the Larsh swim area for the purpose of approaching the Howard Pier would be doing so at a distance beyond 38 feet from the shore.  The record reveals no evidence of any conflict between swimmers and a boat approaching the Howard Pier or of the existence of a swim platform or other swim recreation apparatus making it reasonable to conclude that a navigational safety concern exists with respect to swimmers in the Larshes’ riparian area over 38 feet from shore.

 

 

Conclusions of Law:

 

40.  Yellow Creek Lake is a public freshwater lake.  I.C. 14-26-2-3; Information Bulletin #61 (Fourth Amendment), “Listing of Public Freshwater Lakes”, October 1, 2014, http://www.in.gov/legislative/iac/20140924-IR-312140381NRA.xml.pdf.

 

41.  The previously referenced decisions involving the parties to this proceeding, Howard v. DNR and Smith, 13 CADDNAR 36 (2012) and Gross v. IDNR and Howard, 13 CADDNAR 283 (2014), are binding with respect to these parties and this proceeding.

 

42.  Extensive evidence, predominantly of a photographic nature, was presented to establish the historic placement of piers on and near Lot 16 and Outlot 4.  It is not disputed that the Larshes moved their pier from its historic location in order to allow for the mooring of boats on the south side of that pier.  However, the fact that the Larshes were required to move their pier to the north in order to continue mooring boats on the south side does not establish that the installation and maintenance of the Howard Pier created an unsafe navigational condition or that the Department failed to consider the Larshes riparian rights associated with Lot 16.

 

43.  “First in time first in right is not a viable factual or legal principle for determining the rights of riparian owners or those of the public on the waters of public freshwater lakes.”  Belcher & Belcher v. Yager-Rosales, 11 CADDNAR 79 (2007), citing Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23, 24 (2005).

 

44.  On a variety of occasions the Commission has ordered parties to remove existing temporary structures or limit the use of specified riparian areas in an effort to balance the rights of adjacent riparian owners as well as the rights of the public.  See Ray v. Blackburn and Lukis, et al., 10 CADDNAR 400 (2006), Rice v. Weatherford, 13 CADDNAR 220 (2013).

 

45.  The Commission, in Howard at findings 61 through 64, previously determined as follows:

 

61. …The owners of Lot 21 hold “the dominant tenement” for the placement of a pier to accommodate the enjoyment of a boat landing at Outlot 4.  As the current owners of Lot 21, the Howards are the beneficiaries of the easement provided by the 1960 Warranty Deed. 

 

62. The 1972 Warranty Deed purported to grant the fee in Outlot 4 to James Groves and Reta Groves.  But the 1960 Warranty Deed reserved only a personal license for Otto B. Valentine and Nellie B. Valentine to share these rights during their lifetimes.  The Valentines did not retain any assignable riparian rights for themselves or their “heirs and assigns”, but rather conveyed “the dominant” riparian rights to only the owners of Lot 21 and “their heirs and assigns”.  With respect to Outlot 4, Nellie B. Valentine had no interest to convey in the 1972 Warranty Deed.  Any riparian rights associated with Outlot 4 are subject to “the dominant” rights conveyed by the 1960 Warranty Deed and now enjoyed by the Howards. 

 

63.  Both the 1960 Warranty Deed and the 1972 Warranty Deed were conditional.  The rights conveyed by the 1960 Warranty Deed were “to be enjoyed by the grantees [now the Howards], their families and guests, and their heirs and assigns, in common with the grantors [Otto B. Valentine and Nellie B. Valentine] and other licensees of the grantors.”  The rights conveyed in the 1972 Warranty Deed were “made subject to all effective legal restrictions of record.  Tract I is conveyed subject to the rights (which are hereby created) of the owners of any lot in any plat or subdivision which was executed by the grantor herein and her now deceased husband, Otto B. Valentine, to use the lots conveyed under Tract I for the purpose of ingress and egress to the water channels and/or the lake, said right to use said lots includes the right to use same for boating and swimming purposes in addition to ingress and egress purposes.”  With respect to Outlot 4, “the dominant tenement” had been granted by the 1960 Warranty Deed to the owners of Lot 21. 

Id. at pg. 41 (emphasis added).

 

46.  Findings 61 through 63 of Howard are understood to have decided that through a Warranty Deed executed in 1960 the owners of Lot 21, now the Howards, were granted an easement to Outlot 4 that was shared only with the grantor and licensees of the grantors.  Therefore, when the grantors, the Valentines, conveyed away their interest in Outlot 4 through the execution of a Warranty Deed in 1972 to the Larshes’ predecessor in title, the grantors’ (the Valentines) right to the common use of Outlot 4 for a “pier, landing and bathing beach facilities” expired.

 

47.  By virtue of the 1960 Warranty Deed the use of Outlot 4 for a “pier, landing and bathing beach facilities” could not be passed to any future owner, including the Larshes.

      

48.  The language of the 1972 Warranty Deed to Outlot 4 further confirms the intent of Nellie B. Valentine, that Tract I, which includes Outlot 4, was conveyed subject to rights that had been previously conveyed by her or her then deceased husband to other lot owners within the plat or subdivision.

 

49.  In Howard, the ultimate conclusion is stated in Finding 64:

 

64. The Howards enjoy the dominant estate in Outlot 4.  The riparian rights of the owners of Outlot 4 are subject to the vested and dominant riparian rights of the Howards as the owners of Lot 21.

 

[VOLUME 14, PAGE 24]

 

50.  Therefore, the Larshes remaining riparian rights associated with Outlot 4, which do not include the right to a “pier, landing and bathing beach facilities”, are subject to the riparian rights of the Howards, which does include the right to a “pier, landing and bathing beach facilities.”

 

51.  The rights and obligations of the holders of dominant easement estates, here the Howards, and servient easement estates, here the Larshes, is described well as follows:

 

It is well established that easements are limited to the purpose for which they are

granted. The owner of an easement, known as the dominant estate, possesses all

rights necessarily incident to the enjoyment of the easement. The owner of the

property over which the easement passes, known as the servient estate, may use

his property in any manner and for any purpose consistent with the enjoyment of

the easement, and the dominant estate cannot interfere with the use. All rights

necessarily incident to the enjoyment of the easement are possessed by the owner

of the dominant estate, and it is the duty of the servient owner to permit the

dominant owner to enjoy his easement without interference. The servient owner

may not so use his land as to obstruct the easement or interfere with the

enjoyment thereof by the owner of the dominant estate. Moreover, the owner of

the dominant estate cannot subject the servient estate to extra burdens, and more

than the holder of the servient estate can materially impair or unreasonably

interfere with the use of the easement. Rehl v. Billetz, 2012 Ind. App. LEXIS 9, *12-13, (2012).

Skilbred, et al. v. Spaw, et al., 13 CADDNAR 99, (2013).  See also Kwolek v. Swickard, 944 N.E.2d 564, (Ind. App. 2011).

 

52.  Because the Larshes possess no riparian rights with respect to placing a pier or maintaining a landing on Outlot 4, it is not necessary that the Department consider that the Howard Pier, as authorized, effectively eliminates the ability of the Larshes to extend a pier from Outlot 4.  For this same reason, it is not necessary for the Department to consider requiring the construction of a pier for common usage by both the Howards and the Larshes.

 

53.  Except with respect to the right to maintain a “pier, landing and bathing beach facilities,” now possessed exclusively by the Howards, the Larshes continue to possess corollary rights to the use of Outlot 4, including associated riparian rights, in any manner that does not obstruct or interfere with the Howards exercise of their exclusive rights granted under the easement.  More specifically, the Larshes remain able to fish from the shore of Outlot 4, retain the ability to maintain or reconstruct the seawall along the shore of Outlot 4 (subject to Department regulation), and engage in other riparian activities associated with the shore of Outlot 4 that were not exclusively granted to the Howards. 

 

54.  However, as is the situation for the owner of any servient estate, the Larshes rights to Outlot 4 are subservient to the greater priority rights of the Howards to maintain a “pier, landing and bathing beach facilities.”  Excluding the Larshes from their use and enjoyment of Outlot 4 for “a pier, landing and bathing beach facilities” and in other manners that would interfere with the Howards’ exercise and enjoyment of their rights as granted in the easement is appropriate.  Id.

 

55.  However, the Howards’ use of the easement in such a manner as to subject the Larshes’ servient estate of Outlot 4 to a greater burden than what was intended by the grantor of the easement is not appropriate.  Id.

 

56.  The Department’s evaluation of the Howards’ permit application on remand was appropriate.

  

57.  There is insufficient evidence to establish that any navigation or safety issue was created by the authorization of the Howard Pier as specified in CTS-3553.

 

58.  The Howard Pier as authorized under CTS-3553 is an appropriate use of the Howards’ easement rights, does not infringe upon any corollary riparian rights possessed by the Larshes and does not subject Outlot 4 to a greater burden than what was intended by the grantor of the easement.

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order, Paragraph 59, has been relocated to the “Final Order” section at the beginning of this document.]